Law Commons^™

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Terrible Touhy: Navigating Judicial Review Of An Agency's Response To Third-Party Subpoenas, Zoe Niesel

Faculty Articles

The question of judicial review of a federal agency's response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court's holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.

This Article establishes that the circuit courts' approaches to judicial review of an agency's …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith

Faculty Articles

Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …

Confronting The Myth Of State Court Class Action Abuses Through An Understanding Of Heuristics And A Plea For More Statistics, Patricia W. Moore

Faculty Articles

The Supreme Court heard six cases involving class actions this term. One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time. Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" justified removal of the case (which was based on state law and filed in state court) to federal court.

The charge of a "flood" of "abusive state court class actions" echoed the same rhetoric that CAFA's supporters used a decade ago in their ultimately successful efforts to …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Moore

Faculty Articles

The effect of Ashcroft v. Iqbal on pleading standards and behavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data …

The Tao Of Pleading: Do Twombly And Iqbal Matter Empirically, Patricia W. Moore

Faculty Articles

In 2007, the Supreme Court issued its opinion in Bell Atlantic Corp. v. Twombly, sending “shockwaves” through the federal litigation bar. Seemingly without prior warning, the Court abrogated “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—the standard for deciding 12(b)(6) motions first stated fifty years earlier in Conley v. Gibson. To replace the old rule, the Court announced a new “plausibility” standard: that a complaint …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.