Law Commons^™

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

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The Sec's Fight To Stop District Courts From Declaring Its Hearings Unconstiutional, Linda Jellum

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Can the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency's administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this Article extremely timely. The Securities Exchange Act of …

Getting To Know You: An Expanded Approach To Capital Jury Selection, Samuel P. Newton

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The Colorado Method of capital jury selection is a widely embraced strategy defense attorneys use to select jurors during voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for death. The method could benefit from some expansion. Not all defense lawyers have access to Colorado-Method-based training. In innocence cases, defense lawyers should soften discussions of punishment prior to guilt since this tactic predisposes juries to vote for death. Nor do jurors' views or positions on the death penalty guarantee their eventual votes. While capital juries are already inclined to give death sentences …

Narrowing Death Eligibility In Idaho: An Empirical And Constitutional Analysis, Aliza Plener Cover

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How The U.S. Constitution Connects With Covid-19, Richard Henry Seamon

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Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

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Supermajoritarian Criminal Justice, Aliza Plener Cover

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Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …

Could The Pope's Call To End The Death Penalty Keep Catholics Off Juries?, Aliza Plener Cover

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The Pope And The Capital Juror, Aliza Plener Cover

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In a significant change to Catholic Church doctrine, Pope Francis recently declared that capital punishment is impermissible under all circumstances. Counterintuitively, the Pope’s pronouncement might make capital punishment less popular but more prevalent in the United States. This Essay anticipates this possible dynamic and, in so doing, explores how “death qualification” of capital juries can insulate the administration of the death penalty when community morality evolves away from capital punishment.

Forfeiture Policy In The United States: Is There Hope For Reform, David Pimentel

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Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, Aliza Plener Cover

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Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The United States Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position …

Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

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Supreme Court Supremacy In A Time Of Turmoil, Richard Henry Seamon

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Last term's decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system's inadequate response to it. In James, the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney's fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts' well-settled duty to obey the Court's decisions on federal law, this article shows that the duty rests …

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

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Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

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Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

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No abstract provided.

Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

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First Amendment Right To A Remedy, Benjamin Plener Cover

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Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …

Eighth Amendment's Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

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The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This Article presents a quantitative study of …

Civic Education, The Rule Of Law, And The Judiciary: A Republic, If You Can Keep It, Donald L. Burnett Jr.

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Community Rights And The Municipal Police Power, Stephen R. Miller

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The Impact Of Obergefell: Tradition Marriage's New Lease On Life, David Pimentel

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The Supreme Court's decision in Obergefell v. Hodges in June 2015 provided a dramatic turn in America's ongoing debate over same-sex marriage. Justice Kennedy's opinion speaks in emotionally evocative terms about the compelling societal and personal significance of marriage, holding that the right to marry is a fundamental right under the Fourteenth Amendment, a right that extends to same-sex couples. Justice Kennedy's rhetoric about the importance of marriage is noteworthy, even curious, given marriage's steady decline over the past 50 years. Just when it seemed that marriage was losing its significance in our society-because marriages are more easily ended, because …

Archetypes Of Faith: How Americans See, And Believe In, Their Constitution, Aliza Plener Cover

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In this Article, I offer a new framework to illuminate how American faith in the Constitution is sustained over time. I build upon the evocative Passover story of the Four Sons—one of whom is wise, one wicked, one simple, and one who does not know how to ask—and argue that these archetypes resonate deeply in the constitutional context. I identify the “wise sons” of the American constitutional community—the legal elites who maintain the vitality of the constitutional faith through a fastidious, intergenerational, yet somewhat detached analysis of the intricacies of law; the “simple sons”—the People writ large, who relate to …

The U.S. Supreme Court Sidetracks Idaho Implied Consent Law, Richard Henry Seamon

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Cruel And Invisible Punishment: Redeeming The Counter-Majoritarian Eighth Amendment, Aliza Plener Cover

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The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

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The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

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Historic Signs, Commercial Speech, And The Limits Of Preservation, Stephen R. Miller

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Which Is To Be Master, The Judiciary Or The Legislature? When Statutory Directives Violate Separation Of Powers, Linda Jellum

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Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard Henry Seamon

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