Law Commons^™

Brett Kavanaugh Vs. The Exonerated Central Park Five: Exposing The President's "Presumption Of Innocence" Double Standard, Sofia Yakren

Journal of Civil Rights and Economic Development

(Excerpt)

In the service of Justice Brett Kavanaugh’s confirmation to the United States Supreme Court, the President of the United States (and Republican Senators) both misappropriated and further eroded the already compromised concepts of due process and presumption of innocence. This Essay uses the prominent “Central Park Five” case in which five teenagers of color were wrongly convicted of a white woman’s widely-publicized beating and rape to expose the President’s disparate use of the presumption along race and status lines. This narrative is consistent with larger systemic inequities that leave poor black and brown criminal defendants less likely to benefit …

Hearing Women: From Professor Hill To Dr. Ford, Stephanie M. Wildman

Journal of Civil Rights and Economic Development

(Excerpt)

One of the recent traumas, another skirmish in today’s civilian conflict over what kind of society America will be, arose from Dr. Christine Blasey Ford’s testimony about sexual assault she had endured. Her composed, measured statement during the nowJustice Brett Kavanaugh confirmation hearing exemplified bravery in the face of adversity. The Senate and the nation’s response to her testimony underscored the high stakes in the ongoing ideological conflict, beyond the obvious prize of a Supreme Court seat. Constituents in the current ideological battle had differing reactions to Ford’s testimony and to this hearing, reflecting a range of views about …

"I Still Like Smear": The Senate Judiciary Committee's Obstructing Politics Surrounding The Kavanaugh Hearing And A Solution To The Chaos That Ensued, Frank J. Tantone

Journal of Civil Rights and Economic Development

(Excerpt)

The incredible events and raucous behavior by members of the Committee that colored Justice Kavanaugh’s confirmation process rose to a level of intensity and virulence never seen before in this specific area of American government and politics. Nevertheless, the most analogous situation that somewhat closely reflects the events that transpired in 2018 occurred seventeen years earlier. President George H.W. Bush, on July 1, 1991, nominated then District of Columbia Circuit Court Judge, Clarence Thomas, to replace Justice Thurgood Marshall on the Supreme Court. Thomas’s confirmation hearing was also opposed from the outset but by civil rights and feminist organizations …

How The Boogeyman Saved Brett Kavanaugh, Cathren Page

Journal of Civil Rights and Economic Development

(Excerpt)

We love to hate these boogeymen. When the societal narrative creates these invisible boogeymen, people can pour their rage against sexual abuse into these faceless antagonists. At the same time, the enraged survivors and protectors avoid conflicts with family, neighbors, colleagues, and social acquaintances who might actually commit or enable sexual abuse. We can dodge sticky questions regarding how a churchgoer, a judge, or an Ivy Leaguer could have committed a heinous act. The survivors can avoid all the victim-blaming backlash, threats of violence, and invalidation that accompanies reporting a sexual offense. Moreover, having less power on their own, …

The Master's Tools Will Never Dismantle The Master's House: Kavanaugh's Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Journal of Civil Rights and Economic Development

(Excerpt)

This essay proceeds in four parts. In Part I, I problematize the idea of the accused’s demeanor as evidence of guilt, remorse, or entitlement, arguing that we tend to overestimate our ability to deduce internal states of mind from people’s behavior and expressions. Part II assesses the potential (or lack thereof) of public performances of reckoning to produce a valuable expression of remorse, discussing the value of contingent apologies. Part III expands the framework to examine the way our politically fractured field responds to partisan efforts to excoriate culprits, arguing that “starting a national conversation” on the basis of …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti

St. John's Law Review

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

Striking The Balance: Search Warrants And Encryption Protected Smartphones, Nicholas A. Oliva

Journal of Civil Rights and Economic Development

(Excerpt)

This note’s analysis of searches of encrypted cell phone will be broken down into in three parts. Part I of this note provides context for the balance between individual privacy and law enforcement by reviewing general Fourth Amendment principles and then Supreme Court rulings that apply these principles to cell phones. Part II then details the advancements in cell phone technology, specifically encryption. These new technologies render the data on cell phones inaccessible and lead law enforcement to go beyond search warrants and seek special orders pursuant to the All Writs Act. Part II provides an overview of the …

Sex Offenders, Custody And Habeas, Wendy R. Calaway

St. John's Law Review

(Excerpt)

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has …

Nowhere To Run, Nowhere To Hide.* Applying The Fourth Amendment To Connected Cars In The Internet-Of-Things Era, Gregory C. Brown, Jr.

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note will briefly discuss the key components of a Connected Car, identify who collects the data from the Car, and examine the various uses for the data. Part I also explores whether Car owners consent to the collection of their Car’s data. Part II-A will trace the historical development of the automobile exception to the Fourth Amendment, which generally permits law-enforcement officers to conduct a warrantless search of a vehicle. Part II-B will discuss how the Supreme Court has applied the Fourth Amendment to pre-Internet technologies. Part II-C will discuss two recent Fourth Amendment Supreme …

Free Speech, Public Safety, & Controversial Speakers: Balancing Universities' Dual Roles After Charlottesville, Elisabeth E. Constantino

St. John's Law Review

(Excerpt)

This Note seeks to develop an approach to hateful and controversial speech that protects First Amendment values and students alike. Part I discusses the legal backdrop and First Amendment tradition that underlies a permissive view of hateful speech on university campuses. Part I also discusses the roots of time, place, and manner regulations and the public forum doctrine, both of which recent legislation invokes. Part II provides a timeline of events that have highlighted the tension between free speech and public safety on campuses. Part II also discusses the eruption of legislation that these events inspired. Finally, Part III …

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

Fool Me Once... The Need For Federal Legislation To Remedy Fraud And Misrepresentation In Ballot Initiatives That Negatively Affect Minority Communities, Jessica George

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes new federal legislation to provide relief for voters who might be negatively affected by fraud and deception at any phase of a ballot initiative, including the signature-gathering process. Ballot initiatives are a significant part of the democratic process. They must be protected from fraud, especially when those practices result in initiatives that harm specific minority group interests. This legislation will give deceived voters a cause of action to stop the effect of a ballot initiative before it negatively impacts them. Voters can bring a civil action in federal court for preventive relief, including a permanent or …

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

Passive Avoidance, Anita S. Krishnakumar

Faculty Publications

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority …

The Faith Of My Fathers, Robert H. Jackson, John Q. Barrett

Faculty Publications

(Excerpt)

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson’s writing about religion in his life.

After Justice Jackson’s death in 1954, his secretary Elsie L. Douglas found the thirteen pages among his papers. She concluded that the pages were “undoubtedly prepared as part of his autobiography,” typed them up, and gave a file folder containing …

Essay: I Choose, You Decide: Structural Tools For Supreme Court Legitimation, Jeremy N. Sheff

Faculty Publications

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different (and perhaps complementary) reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I Cut, You Choose” procedure for ensuring fair division—only here, it manifests as “I Choose, You Decide.” This proposal, rather than …