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Articles 61 - 81 of 81
Full-Text Articles in Law
Standing In The Mud: Hein V.Freedom From Religion Foundation, Inc.
Standing In The Mud: Hein V.Freedom From Religion Foundation, Inc.
Akron Law Review
In 1968, in Flast v. Cohen, the Supreme Court first set forth the requirements that a plaintiff must satisfy to have standing to challenge a government action in federal court solely based on his or her status as a taxpayer. The subsequent history of taxpayer standing is littered with precedents supported by unclear reasoning. Hein v. Freedom from Religion Foundation, Inc. represents the Supreme Court’s latest effort to address the limits of taxpayer standing in an Establishment Clause challenge. Unfortunately, the Court in Hein maintained its tradition of providing perplexing decisions in taxpayer standing cases. In Hein, a plurality of …
Two Wrongs Don't Make A Fourth Amendment Right: Samson Court Errs In Choosing Proper Analytical Framework, Errs In Result, Parolees Lose Fourth Amendment Protection, Rachael A. Lynch
Akron Law Review
This Note will follow the Fourth Amendment from its origins to its modern application to parolee rights, as evidenced by the Samson Court. Part II focuses on the Fourth Amendment, from the circumstances surrounding its adoption to modern court cases that have applied its tenets to prisoners, probationers, and, finally, parolees. Part III details the Supreme Court’s decision in Samson v. California, including a thorough discussion of the facts that gave rise to the case and lower court decisions. Part IV explores the problems with the Court’s framework and suggests other possible frameworks the Court could have used to come …
Examining Crack Cocaine Sentencing In A Post-Kimbrough World, Michael B. Cassidy
Examining Crack Cocaine Sentencing In A Post-Kimbrough World, Michael B. Cassidy
Akron Law Review
This article examines Kimbrough’s effect on crack cocaine sentencing. Part I discusses the rise of crack cocaine use in the United States during the 1980s. Part II provides a short history on modern federal sentencing, including the Sentencing Reform Act, the Commission’s Guidelines, and its reports to Congress concerning the 100-to-1 ratio. Part III examines the Supreme Court’s recent Sixth Amendment jurisprudence through its seminal cases, Apprendi and Blakely. In Part IV, this article analyzes the Court’s Booker holding as well as Kimbrough and Gall v. United States, two cases that clarified Booker and its application to crack cocaine cases. …
Rationalizing The Constitution: The Military Commissions Act And The Duboius Legacy Of Ex Parte Quirin, Chad Deveaux
Rationalizing The Constitution: The Military Commissions Act And The Duboius Legacy Of Ex Parte Quirin, Chad Deveaux
Akron Law Review
Alexander Hamilton famously characterized the Judiciary as the “least dangerous” branch. It “has no influence over either the sword or the purse” and thus “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But this perceived safeguard has sometimes proven to be the institution’s undoing. Faced with the prospect of appearing impotent, the Supreme Court has, on occasion, played the role of doctrinal apologist. The Court has bent seemingly immutable constitutional prerogatives to sanction Executive action when a contrary ruling would likely go unheeded.
Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Akron Law Review
This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …
From Armbands To Douchbags: How Doninger V. Niehoff Shows The Supreme Court Needs To Address Student Speech In The Cyber Age, Allison E. Hayes
From Armbands To Douchbags: How Doninger V. Niehoff Shows The Supreme Court Needs To Address Student Speech In The Cyber Age, Allison E. Hayes
Akron Law Review
Part II of this Note discusses the background of First Amendment student speech cases as decided by the Supreme Court as well as a unique classification of lower court holdings. Part III focuses on Doninger v. Niehoff in detail, including the underlying facts, competing arguments, procedural history, and the District of Connecticut’s and Second Circuit’s rationale. Part IV analyzes why this case was wrongly decided and argues that the Supreme Court needs to offer more guidance to lower courts so they may apply a more consistent standard in student speech cases. Further, it suggests a framework courts should adopt in …
Two Wrongs Don't Make A Right: Federal Death Eligibility Determinations And Judicial Trifurcations, Michael D. Pepson, John N. Sharifi
Two Wrongs Don't Make A Right: Federal Death Eligibility Determinations And Judicial Trifurcations, Michael D. Pepson, John N. Sharifi
Akron Law Review
Broadly speaking, the purpose of this article is to bring attention to this radical and irreconcilable disparity between the unequivocal Sixth Amendment right of confrontation criminal defendants are afforded at trial,and the limited, qualified right of confrontation the FDPA grants federal capital defendants during death-eligibility determinations, which occur as part of the sentencing phase. It advances the argument that there is no tenable principled distinction on which this disparate procedural treatment may rest. We will attempt to demonstrate that, as written, the statutory provision that governs the admission of evidence at capital sentencings—18 U.S.C. § 3593(c)—is unconstitutional on its face …
Is Meaningful Peer Review Headed Back To Florida?, Brendan A. Sorg
Is Meaningful Peer Review Headed Back To Florida?, Brendan A. Sorg
Akron Law Review
This comment lays the foundation to evaluate the sustainability of Amendment 7 post-PSQIA in Part II by first examining medical peer review, its origin, its evolution and why peer review remains important to patient safety. Although many physicians dislike peer review, Congress has acknowledged its importance by making peer review mandatory and by providing the statutory protections to ensure peer review remains meaningful.7 States have followed suit, passing their own laws that provide for the protection of peer review materials. Part II also addresses how Amendment 7 reversed Florida’s historical approach providing broad peer review protection and how this erosion …
Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo
Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo
Akron Law Review
Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …
The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill, Jessica L. Knopp
The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill, Jessica L. Knopp
Akron Law Review
This Comment analyzes the constitutionality of Ohio’s controversial H.B. 125 under the Fourteenth and First Amendments to the United States Constitution in the context of current United States Supreme Court precedent. Part II outlines Ohio’s current abortion laws, describes Ohio’s role in creating anti-abortion legislation and case law, provides a context of other abortion bills occurring nationwide, and explains H.B. 125. Part III analyzes how H.B. 125 is unconstitutional under the Fourteenth Amendment in its current form, analyzes its constitutionality if the bill was modified to be a consent-only bill, and analyzes its unconstitutionality under the Establishment Clause of the …
Realsim Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn
Akron Law Review
In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …
Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary Berkheiser
Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary Berkheiser
Akron Law Review
With its narrow ruling, Miller has taken the Eighth Amendment kids are different jurisprudence on a deleterious detour that could lead Miller and Jackson and others like them to a certain dead end. Where Miller went wrong is the subject of this paper. It begins with Graham and the significance of the Court’s ruling that the Eighth Amendment categorically precludes imposition of a sentence of life without parole on a juvenile nonhomicide offender. Next, this paper turns to the Supreme Court’s decision in Miller, parsing the Court’s reliance on precedent and the reasoning that led it to adopt a ruling …
The New State Postconviction, Giovanna Shay
The New State Postconviction, Giovanna Shay
Akron Law Review
I argue in this paper that, because Maples and Martinez coincide with other important developments that make state postconviction more important, they could have critical synergistic effects. Maples and Martinez create incentive for states to provide effective counsel in state postconviction at a moment when these proceedings are being forced to assume a new role in the development of federal constitutional criminal procedure. The confluence of these events could produce a new era in state postconviction.
Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller
Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller
Akron Law Review
Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Akron Law Review
This symposium affords an opportunity to reflect upon the combined force of Florence and one of its foundational precedents, also decided by a 5-4 vote: Atwater v. City of Lago Vista. In Atwater, the Court afforded police explicit authority to arrest individuals for very minor offenses (there failure to wear a seatbelt) without a warrant, paving the way not only for arrests such as experienced by Albert Florence, but also a myriad of others, based on laws contained in state, local and federal codes. With Atwater, the Court refused to limit the governmental power to subject individuals to the trauma …
Factoring The Seriousness Of The Offense Into Fourth Amendment Equations: Strip Searches In Detention Facilities - Atwater Strikes Again, William A. Schroeder
Factoring The Seriousness Of The Offense Into Fourth Amendment Equations: Strip Searches In Detention Facilities - Atwater Strikes Again, William A. Schroeder
Akron Law Review
This article suggests, inter alia, that Atwater can and should be limited, or better yet, overruled, by the adoption of reasonableness and probable cause standards that take into account the seriousness of the offense and make custodial arrests of minor offenders, and searches directed at minor offenders, much more difficult to justify than comparable activities directed at serious offenders.
The Modest Effect Of Minneci V. Pollard On Inmate Litigants, Alexander Volokh
The Modest Effect Of Minneci V. Pollard On Inmate Litigants, Alexander Volokh
Akron Law Review
This Symposium, on the recent Supreme Court Term’s criminal procedure jurisprudence, illustrates these complexities. Of the five “cases” discussed here, three come out in a “liberal” direction and two come out in a “conservative” direction. Nor do the results merely stem from Justice Kennedy’s swing vote (though he was in the majority in all of these cases); one of the “liberal” cases was decided by a majority of seven Justices, and one of the “conservative” ones was decided by a majority of eight. Looking at these cases together is a good way of reminding us to be wary of simplistic …
Recognizing An Academic Freedom Exception To The Garcetti Limitation On The First Amendment Right To Free Speech, Carol N. Tran
Recognizing An Academic Freedom Exception To The Garcetti Limitation On The First Amendment Right To Free Speech, Carol N. Tran
Akron Law Review
In order to uphold the integrity of the First Amendment, it is essential that the Supreme Court establish a clear academic freedom exception to First Amendment jurisprudence. This Comment proposes that an academic freedom exception should exist based upon the history of academic freedom. The Comment will also discuss the limits and bounds for such an exception. Part II will begin by looking at the history of First Amendment law surrounding free speech in the workplace. Part III will then examine different circuit approaches to the Garcetti limitation to the First Amendment right to freedom of speech in the academic …
Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson
Akron Law Review
James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected …
Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning To (Bitter) End, Joëlle Anne Moreno Professor
Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning To (Bitter) End, Joëlle Anne Moreno Professor
Akron Law Review
Until very recently, Justice Scalia has steered the Court’s modern confrontation jurisprudence. However, as discussed below, his leadership is increasingly threatened by deep divisions on questions of historical accuracy, constitutional interpretation, and the practical realities of twenty-first century criminal prosecutions.
Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin
Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin
Akron Law Review
This Article chronicles the Supreme Court’s inconsistent use of an avoidance canon in cases construing the substantive rights limitation of the Rules Enabling Act (Enabling Act or REA). It focuses primarily on the avoidance canon as used in cases under the REA branch of the Erie doctrine but also discusses avoidance in other REA contexts. The Article concludes that a reassessment and refocusing of the avoidance canon in Enabling Act jurisprudence is necessary... This Article explores the purposes and methodology that should guide avoidance in REA cases... I focus, in this Article, primarily on a subset of this group of …