Law Commons^™

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

Freedom Of Association, Extreme Partisan Gerrymandering, Justiciability And The Unmistakable Political Question Controversy, L. Darnell Weeden

Brigham Young University Journal of Public Law

No abstract provided.

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth

Fordham Law Review

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …

A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim

Fordham Law Review

The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did …

"When The President Does It": Why Congress Should Take The Lead In Investigations Of Executive Wrongdoing, Andrew B. Pardue

William & Mary Law Review

Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: “Well, when the President does it, that means it is not illegal.” A majority of Americans disagreed with the former President’s assessment. But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms—all differing in their independence …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

The Due Process And Other Constitutional Rights Of Foreign States, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases …

The Decline Of Denali’S Wolves: Federal Options In The Face Of Non-Cooperative Wildlife Federalism, Catherine Danley

Brigham Young University Journal of Public Law

No abstract provided.

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

Dimensions Of Delegation, Cary Coglianese

All Faculty Scholarship

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

Let's Gossip About Glossip: The Supreme Court's Misguided Adoption Of An Unsurpassable Standard For Method Of Execution Challenges Under The Eighth Amendment, Tenia L. Clayton

Belmont Law Review

No abstract provided.

Is Emerging Adulthood Influencing Moffitt’S Developmental Taxonomy? Adding The “Prolonged” Adolescent Offender, Christopher Salvatore, Travis A. Taniguchi, Wayne Welsh

Christopher Salvatore

The study of offender trajectories has been a prolific area of criminological research. However, few studies have incorporated the influence of emerging adulthood, a recently identified stage of the life course, on offending trajectories. The present study addressed this shortcoming by introducing the "prolonged adolescent" offender, a low-level offender between the ages of 18 and 25 that has failed to successfully transition into adult social roles. A theoretical background based on prior research in life-course criminology and emerging adulthood is presented. Using data from the National Longitudinal Study of Adolescent Health analyses examined the relationship between indicators of traditional turning …

Resisting In Process: Human Beings Ensnared In The Fugitive Slave Law Of 1850 (A Working Collection), Daniel Farbman

Dan Farbman

No abstract provided.

Indonesian Term Of Address Ustad In Film Utterances: Forms, Functions, And Social Values, Sandy Nugraha, Wiwin Triwinarti

International Review of Humanities Studies

This study analyzes the term of address ustad in Indonesian culture. Indonesia’s religious-themed movies may represent the use of the term of address ustad in daily conversation. In particular, this study aims to describe the patterns of form, the patterns of use, and the social values of the term of address ustad in film utterances. The data of the term of address ustad and its contexts are collected from the utterances in Indonesia’s four Islamic-themed movies. This descriptive qualitative study uses sociopragmatics approach in identifying the functions of the term of address in film discourse. The context of the utterances …

Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin

Articles, Book Chapters, & Popular Press

Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher. Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

League Of Conservation Voters V. Trump, Adam W. Johnson Mr.

Public Land & Resources Law Review

A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

Elizabeth T Lear

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

October 27, 2019: The Shooter And The Death Penalty, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Shooter and the Death Penalty“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 22, 2019: What Is The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Personhood Paradox: Citizens United As Rejection Of Corporate Personhood?, Stefan J. Padfield

ConLawNOW

This ConLawNOW submission is an excerpt from a previously published piece. The following abstract is from that piece.

UCLA Law Professor Adam Winkler has published an excellent book on the history of corporate rights. The book, We the Corporations: How American Businesses Won Their Civil Rights, “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’—the centuries-long struggle for equal rights for corporations.” The book has been highly praised by some of the greatest minds in corporate and constitutional law, and the praise is well-deserved. However, the book is not without its controversial assertions, …

State Net Neutrality, Daniel A. Lyons

Daniel Lyons

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but by policy disagreements …

Justice Sutherland Reconsidered, Samuel R. Olken

Samuel R. Olken

In the annals of Supreme Court history, George Sutherland occupies a curious place. Associate Justice of the U.S. Supreme Court from 1921 to 1938, the Utah native has long been identified as one of the infamous "Four Horsemen," known largely for his role as a judicial conservative instrumental in the Court's invalidation of significant aspects of the New Deal. Yet Sutherland was also the author of several influential opinions involving matters as diverse as civil rights, freedom of expression, and others that recognized the broad authority of the federal government in the realm of foreign and military affairs. A proponent …

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

October 14, 2019: Why The Democrats Need To Tap The Brakes On Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why the Democrats Need to Tap the Brakes on Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Second Amendment As A Fundamental Right, Timothy Zick

Timothy Zick

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a “fundamental” constitutional right. They have asserted that, both on its own terms and relative to rights in the same general class, the Second Amendment has been disrespected, under-enforced, and orphaned. They have argued that courts have treated the Second Amendment as “peripheral,” “fringe,” “anachronistic,” “second rate,” and “second-class.” The Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights” and even compared …

Arming Public Protests, Timothy Zick

Timothy Zick

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms—generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who seek …