Law Commons^™

Freedom Of Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery

Brian Slattery

Do reporters have the right to conduct interviews in courthouse hallways? May political activists hand out leaflets in shopping centres? Are journalists entitled to attend disciplinary hearings in the chambers of the law society? Do advertisers have the right to place ads on public buses? These questions have one thing in common: they all concern the exercise of freedom of expression in certain locations — courthouses, shopping centres, private offices, buses. But do all locations without exception benefit from the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms, or do some fall …

What Kind Of Judge Is Supreme Court Nominee Merrick Garland?, Caren Morrison

Caren Myers Morrison

No abstract provided.

Inaction On The Second Amendment, Lynne H. Rambo

Lynne H. Rambo

No abstract provided.

Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker

Daniel P. Becker

In KSR v. Teleflex, the Supreme Court examined the Federal Circuit's obviousness jurisprudence for patents. Both prior to and in this case, the Federal Circuit rigidly applied its judicially created "teaching, suggestion, or motivation" (TSM) test to determine whether the prior art would direct an inventor of ordinary skill in the art to combine references or elements in references in the same way as the patentee did. The Supreme Court, however, reversed the decision of the Federal Circuit, and held that by applying the TSM test in such a strict manner, the Federal Circuit had "analyzed the issue in a …

Insights From Canada For American Constitutional Federalism, Stephen Ross

Stephen F Ross

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …

Charter Insights For American Equality Jurisprudence, Stephen Ross

Stephen F Ross

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit …

Supervisory Liability In Section 1983 Cases, Kit Kinports

Kit Kinports

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

The Buck Does Not Stop Here: Supervisory Liability In Section 1983 Cases, Kit Kinports

Kit Kinports

The appropriate standard for supervisory liability in Section 1983 cases has been a source of considerable disagreement among federal courts of appeals. In the absence of established Supreme Court authority on the subject, courts have rejected vicarious and negligence liability in favor of a higher culpability requirement, but they have not agreed on precisely what form this higher standard should take. In this article, the Author addresses the need for a uniform standard consistent with the statute's twin goals of compensating the victims of constitutional violations and deterring constitutional infractions.

The author notes at the outset that lower courts have …

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Kit Kinports

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she violated …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Kit Kinports

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Iqbal And Supervisory Immunity, Kit Kinports

Kit Kinports

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of …

Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports

Kit Kinports

After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …

Implied Wavier After Seminole Tribe, Kit Kinports

Kit Kinports

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Indian National Bar Association (Inba) Celebrates 66th National Law Day, Amit Kumar

Amit Kumar

26th Nov 2015, New Delhi: A groundbreaking International conference on Law & Policy issues of more than 400 prominent thought Members of Parliament from India and United Kingdom, leaders, CEO's, heads of legal department, researchers, advocates, practitioners and policymakers from at least 08 countries gathered in New Delhi on 26th November 2015, energizing a global movement working to advance policy issues around the globe. Held November 26, the “International Conference on Law and Policy Issues” to commemorate the 66th National Law Day marked its hosting in India as the biggest conference of the year hosted by Indian National Bar Association. …

Age Discrimination And The Prima Facie Case: Supreme Court's Age Discrmination Decision Fails To Resolve Key Questions Arising Under The Adea, Steven Kaminshine

Steven J. Kaminshine

No abstract provided.

The Most Difficult Right, Sonia Lawrence

Sonia Lawrence

No abstract provided.

A New Subtlety In Judicial Supremacy: Review Of Constitutional Cases, The 2003-04 Term, Sonia Lawrence

Sonia Lawrence

No abstract provided.

Some Thoughts On The Supreme Court’S Assessment Of The Constitutionality Of Dna Warrants, Richard Haigh

Richard Haigh

No abstract provided.

Terms Of Convenience: Examining Constitutional Overrulings By The High Court, Richard Haigh, Gian Boeddu

Richard Haigh

No abstract provided.

89th Ames Challenges Nurses’ Constitutional Right To Protest Wages, Trevor Farrow

Trevor C. W. Farrow

No abstract provided.

Terrorism, Law & Democracy: How Is Canada Changing Following September 11, Trevor C. W. Farrow

Trevor C. W. Farrow

No abstract provided.

Tracking ‘Terrorists’ Or Solidifying Stereotypes? Canada’S Anti-Terrorism Act In Light Of The Charter’S Equality Guarantee, Faisal Bhabha

Faisal Bhabha

No abstract provided.

Children's Rights In The Midst Of Marriage Equality: Amicus Brief In Obergefell V. Hodges By Scholars Of The Constitutional Rights Of Children, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Tanya Monique Washington

No abstract provided.

Brief Of Amici Curiae Scholars Of The Constitutional Rights Of Children In Support Of Petitioners, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Tanya Monique Washington

No abstract provided.

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

Elizabeth Keyes

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Equitable Sharing: Distributing The Benefits And Detriments Of Democratic Society, Thomas Kleven

Thomas Kleven

The book argues that a principle of equitable sharing is fundamental to the concept of democracy and to the democratic society the United States purports to be. It examines the political philosophies of John Locke, John Stuart Mill, and John Rawls, all of which contain a principle of equitable sharing in some form. It then examines the Declaration of Independence and the Constitution, both of which evidence a commitment to equitable sharing as foundational to the democratic society they contemplate. The book argues that the Supreme Court also has a meaningful role to play in the dialogue over the requirements …

Judicial Reform, Chris Tweeten, Jean Bowman, Charles Lovell, Mike Mcgrath, Andrew Morriss

Andrew P. Morriss

No abstract provided.

From Slavery To Obama: The Affirmative Action Revolution, Tanya Washington

Tanya Monique Washington

No abstract provided.

Panelist, When Rights Collide?: Religious Liberty, Equality And The Fall Out From Hobby Lobby, Kent Greenfield

Kent Greenfield

No abstract provided.