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Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

Applying Method To The Madness: The Right To Court Appointed Guardians Ad Litem And Counsel For The Mentally Ill In Immigration Proceedings, Amelia Wilson

Amelia Wilson

A unique dilemma facing immigration judges (IJs) and practitioners today is how to address the acute problem of mentally ill respondents appearing pro se in immigration removal proceedings. Mentally ill respondents are more likely to face deportation from a position of indigence and detention, both of which create substantial barriers to obtaining counsel. Even where represented, the mentally ill are less able to contribute to their own defense or understand the proceedings against them. This lack of meaningful participation has cascading deleterious effects on respondents themselves, but also on our already overburdened immigration courts by creating docket delays, prolonged detention, …

Paul Clement And The State Of Conservative Legal Thought, Sam Singer

Sam Singer

If 2011 is remembered as the year the states stood up to the Obama Administration and its bold vision of federal power, Paul Clement will be remembered as the lawyer they chose to make their case to the Supreme Court. In addition to the healthcare challenge, Clement appeared on behalf of Arizona in defense of the State’s sweeping new immigration law and helped Texas defend its new electoral map against interference from the federal courts. Along the way, he became the go-to lawyer for the states’ rights cause--a “shadow Solicitor General” leading the states in their push to reclaim power …

Fragmenting The Judiciary: Potential Ideological Effects Of Shifting Implementation Of Supreme Court Doctrine From Federal Courts To State Courts, Ryan Walters

Ryan Walters

More than ever, the Supreme Court of the United States can rely on an army of life-tenured judges on lower federal courts to implement the doctrines it develops on statutory and constitutional issues. Those judges are shielded from public opinion on controversial rulings, and recent research has shown that the Supreme Court itself is more likely to be affected by elite opinion than that of the public.

Despite checks and balances being a centerpiece of the constitutional order, the increasing size and jurisdictional scope of the federal judiciary, combined with its lack of political accountability, has led to a increase …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

A Shot In Arm: Can Chemical Castration Statutes Cure Sex Offenders Legally And Ethically?, Robert Watters

Robert Watters

At least seven states currently have sex offender castration statutes. This article examines the legal and ethical appropriateness of those statutes against the successful and unsuccessful European models.

Equal Protection And Textualism: Incompatible Or No?, Michael T. Worley

Michael T Worley

This paper states that the degree to which the text and original intent of the framers of the constitution was to protect a class should determine the level of scrutiny that class should receive. The level of scrutiny a class should receive ought to be a function of how often or how broadly the class is protected in the constitution, as understood by the text of the Constitution, its Amendments, and their framers’ intent.

Support for this theory is found in particular in the experience regarding two classes. Age and race discrimination had been embedded in the constitution at the …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan

Richard O. Morgan

The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …

The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth

John Lunstroth

Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

Where Is Equal Protection? Applying Strict Scrutiny To Use Of Race By Law Enforcement., Evan Gerstmann

Evan Gerstmann

This article seeks to move the debate over the use of race by law enforcement beyond the current focus on racial profiling, arguing that the courts must apply strict scrutiny to all use of race by law enforcement, including the stopping and questioning of persons based on suspect descriptions that include race. The current debate implicitly (and sometimes explicitly) assumes that law enforcement’s use of race can be divided into unconstitutional racial profiling and all other uses of races, which are presumptively legitimate. However, when other institutions rely upon race, such as public universities implementing affirmative action programs, courts automatically …

Restorative Justice In The Gilded Age: Shared Principles Underlying Two Movements In Criminal Justice, Ali M. Abid

Ali M Abid

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes. The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional …

“An Existential Moment Of Moral Perception”: Declarations Of Life And The Capital Jury Re-Imagined, Rebecca T. Engel

Rebecca T Engel

In many ways, death penalty jurisprudence, as well as its social status, have evolved at a rapid rate recently in the United States. This has occurred as the Supreme Court has twice declared capital punishment to be specifically unconstitutional in the last decade, in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), and as five states within four years have repealed it from within their criminal justice systems. (New York, New Jersey, Illinois, New Mexico, and Connecticut.) However, in other ways, the system has continued to lag, hardly moving from its difficult reinstatement …

A Core Case For Judicial Review: Striking A Dynamic Balance Between Constitutionalism And Democracy, Wen-Cheng Chen

Wen-Cheng Chen

Is judicial review a deus ex machina institution? Commentators disagree on the legitimacy of judicial review in a constitutional democracy. Many scholars who argue for (or against) judicial review have based their claims on democracy or democratic theory, while other scholars have founded their positive (or negative) arguments on constitutionalism or constitutional theory. Based on a general assessment of the literature, this article finds that most scholars have overlooked a core case for judicial review that the central role of judicial review in a constitutional democracy is to strike a dynamic balance between constitutionalism and democracy. Taking three current trends …

Prophetic Speech, Jeremy G. Mallory

Jeremy G Mallory

Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not …

Thomas Jefferson’S Establishment Clause Federalism, David E. Steinberg

David E. Steinberg

Thomas Jefferson’s Establishment Clause Federalism by David E. Steinberg

Abstract

According to mainstream legal analysis, Thomas Jefferson read the Establishment Clause as mandating a wall of separation between church and state. The Supreme Court has used this purported Jeffersonian interpretation as a basis for federal intervention into state religious regulation.

This view of Jefferson as an Establishment Clause separationist is not supported by the historical record. A belief in state's rights and limited federal government were Jefferson's most important tenets. Jefferson endorsed a Bill of Rights, which Jefferson and the anti-federalists viewed as a means of constraining federal power. After …

The Mandatory Meaning Of Miller, William W. Berry Iii

William W Berry III

In June 2012, the United States Supreme Court held in Miller v. Alabama that the imposition of mandatory life-without-parole sentences on juveniles violated the Eighth Amendment’s ban on “cruel and unusual” punishment. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Miller to other …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Over the last decade, privacy theorists have begun to understand that a consideration of context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Presumed Guilty, Terrence Cain

Terrence Cain

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the …

Of Testing And Tablespoons: Evaluating The Use Of Student Test Scores For Teacher Assessment, Daniel Straw

Daniel Straw

This note argues that the use of student test scores as a significant part of teacher evaluations has no rational basis in law, and therefore the government should instead focus on performance-based assessments and take steps to elevate the status of teaching as a profession.

Is An Inviolable Constitution A Suicide Pact? Historical Perspectives On An Overriding Executive Power To Protect The Salus Populi, Ryan P. Alford

Ryan P Alford

The Article posits that every constitutional order within the Western legal tradition that influenced the Framers recognized the necessity of control over executive emergency powers. It responds to the work of scholars such as Michael Stokes Paulsen, John Yoo, Eric Posner, and Adrian Vermuele, who have used historical arguments to justify strong claims about unbridled presidentialism in national security matters.

The Article demonstrates that it has always been recognized that one of the fundamental purposes of a constitution (written or unwritten) is to provide a framework for the exercise of executive power. It details how, throughout history, legal opinion has …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …