Law Commons^™

Keynote Address: The Evolution And Importance Of Creating A Civil Right To Counsel, Wade Henderson

Touro Law Review

No abstract provided.

Introduction, Andrew Scherer

Touro Law Review

No abstract provided.

Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

A Thought Experiment, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith, Justice Antonin Scalia's long lost dissenting opinion in Brown v. Board of Education.

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …

In Tribute: M. Katherine B. Darmer, Tom Campbell, Erwin Chemerinsky, Bobby L. Dexter, Katherine M. Franke, Mark Osler, Marisa S. Cianciarulo, James L. Doti, Richard D. Fybel, Kirsten E. Gillibrand, Tiffany Chang

Faculty Scholarship

The editors of the Chapman Law Review respectfully dedicate this issue to Professor M. Katherine B. Darmer.

Understanding The Dennis Ferguson Debate: Part 2, Jodie O'Leary

Jodie O'Leary

Extract: Recently I received a cause invitation from an old school friend on Facebook. The cause was to support micro-chipping of all paedophiles. I rejected that invitation. All I could think of was the microchip embedded in my Labrador. The way I understand that chip to work is that if someone finds my dog wandering the streets they can take him to a vet or the RSPCA who will then scan the chip and return him to me. The obvious question seemed to be: how would such a measure help protect children? After all, protection of children is the goal …

Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale

Danielle Keats Citron

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security. While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Antisemitism In The Academic Voice: Confronting Bigotry Under The First Amendment, Kenneth Lasson

Kenneth Lasson

Among the abuses of the academic enterprise that have been taking place in American universities over the past several decades, and continue to this day, are failures of intellectual rigor: the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas – which all too often presented in the academic voice. Students today increasingly find themselves confronted by curricula manipulated by scholarly extremists. While the number of overt antisemitic incidents has declined markedly in the United States over the past few years, there has been a significant increase in anti-Zionist rhetoric and activity on …

Leashing The Internet Watchdog: Legislative Restraints On Electronic Surveillance In The U.S. And U.K., John P. Heekin

John P. Heekin

This article examines the legislative approaches undertaken by the United States and the United Kingdom to regulate the surveillance and interception of electronic communications. Drawing from the recognition of individual privacy in each country, the author explores the development and impact of statutory provisions enacted to accomplish effective oversight of the respective intelligence services. In the U.S., the shifting purposes and provisions of the Foreign Intelligence Surveillance Act of 1978 are tracked from implementation to its revisions following the terrorist attacks of September 11, 2001. Along that timeline, a distinct trend toward greater deference to Executive authority for electronic surveillance …

The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks

Scholarly Works

The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.

Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …

Legalism And Decisionism In Crisis, Noa Ben-Asher

Faculty Publications

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is …

Civil Liberties Lost, Waterboarding And The Legacy Of The Bybee-Yoo 'Torture-Power' Memorandum: Reflections From An Erstwhile Bush Administration Apologist, M. Katherine B. Darmer

M. Katherine B. Darmer

This symposium piece argues that waterboarding is torture and that torture is wrong. It reflects on the enduring legacy of the August 1, 2002 memo defining torture narrowly, which this paper describes as the Bybee and Yoo Torture and Power Memorandum [or 'BYTAP'].

Returning To A Principled Basis For Data Protection, Gus Hosein

Chicago-Kent Law Review

Society must remain conscious of both pragmatic and principle-based rationales for information security rules. The identity card debate in the United Kingdom provides an example of exactly why a governmental information security approach that is sensitive to civil liberties would be the best approach to data protection. In contrast, we should be cautious of a balancing test that places security in parity with civil liberties and, therefore, erroneously allows pragmatism to triumph over principle.

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the "evolving standards of decency" doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court's reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While …

Overreaction Then (Korematsu) And Now (The Detainee Cases), Fritz Snyder

Faculty Journal Articles & Other Writings

In light of the "detainee cases," this article uses Korematsu v. U.S. as a case study in how things can go grievously wrong when the government overreacts to the threat of terrorism and individual rights disappear.

Coming To Illinois May Mean Loss Of Rights To Decide Under Guardianship, James T. Struck

James T Struck

About 500,000 people die in U.S. nursing homes each year some related to second hand smoke. One Illinois nursing home has staff blow smoke in my face, drive a truck near me, throw parental belongings into the garbage, deny dental and religious services. The nursing home administrator said "you are going to be dead" for expressing concerns with shaking hands, saying I would contact the US attorney about slavery like treatment of disabled persons, requesting that my mother get fresh air from second hand smoke. I have been litigating for over 31 months to visit, phone, take home, take parent …

Coming To Illinois May Mean Loss Of Rights To Decide Under Guardianship, James T. Struck

James T Struck

About 500,000 people die in U.S. nursing homes each year some related to second hand smoke. One Illinois nursing home has staff blow smoke in my face, drive a truck near me, throw parental belongings into the garbage, deny dental and religious services. The nursing home administrator said "you are going to be dead" for expressing concerns with shaking hands, saying I would contact the US attorney about slavery like treatment of disabled persons, requesting that my mother get fresh air from second hand smoke. I have been litigating for over 31 months to visit, phone, take home, take parent …

How Earl Warren Previewed Today’S Civil Liberties Debate—And Got It Right In The End, Sandhya Ramadas

Sandhya Ramadas

Earl Warren is revered for his tenure as Chief Justice of the U.S. Supreme Court and for his legacy as the icon of American civil liberties, but a dark moment lurked in his past. In late 1941 and early 1942, as the Attorney General of California, Warren confronted a host of difficult questions involving constitutional law, civil liberties, and race relations. With the United States still reeling from the bombing of Pearl Harbor, and with the dawn of the involvement of American combat troops in World War II, Warren advocated for the relocation and internment of both Japanese Americans and …

Dean’S Message, Lawrence Raful

Touro Law Review

No abstract provided.

Dilemmas Of Cultural Legality: A Comment On Roger Cotterrell's 'The Struggle For Law' And A Criticism Of The House Of Lords' Opinions In Begum, John Mikhail

Georgetown Law Faculty Publications and Other Works

In “The Struggle for Law: Some Dilemmas of Cultural Legality,” Professor Roger Cotterrell argues that the law’s most distinctive aspiration is to promote a respectful exchange of ideas among different parts of a multicultural society. He illustrates his thesis with the House of Lords’ decision in Begum, describing it as “a relatively successful contribution to the process by which battlefields of rights are turned into areas of routine structuring” and finding much to admire in the messages communicated by the Lords in this case. I am more troubled by the Lords’ opinions in Begum and less convinced than Cotterrell seems …

Judicial Recantation, Mark A. Graber

Mark Graber

No abstract provided.

The Gentleman From Hagerstown: How Maryland Jews Won The Right To Vote, Kenneth Lasson

All Faculty Scholarship

This article discusses the early history of Maryland in the context of religious discrimination, specifically in reference to discrimination against those of the Jewish faith, even though the state "was founded as a haven of religious liberty and beacon of toleration." It also highlights a member of the Maryland House of Delegates, Thomas Kennedy, a Christian, as being the leader of the movement to ultimately correct this injustice. Part of the problem were clauses in the state's constitution requiring officeholders to be Christians. Kennedy lost his seat in the House, but didn't give up the battle. Ha had tried several …

Torture, With Apologies, Thomas P. Crocker

Faculty Publications

No abstract provided.

The Four Freedoms: Good Neighbors Make Good Law And Good Policy In A Time Of Insecurity, Mark R. Shulman

Fordham Law Review

No abstract provided.

Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World, David A. Schultz

David A Schultz

Post 9-11 concerns in the United States, among the European Union (EU) members, and other western democracies regarding international terrorism forced convergence of the traditionally distinct policy areas of domestic criminal justice and national security. This convergence has produced several policy and institutional conflicts that pit individual rights against homeland security, domestic law and institutions against international norms and tribunals, and criminal justice agencies against national security organizations. This Article examines regime responses to international terrorism, principally in the United States, in comparison to the European Union, seeking to describe the consequences of the merger of criminal justice norms with …

Going It Alone: The Terror Presidency: Justice And Judgment Inside The Bush Administration, Kenneth Anderson

Book Reviews

Jack Goldsmith's The Terror Presidency is one of the most important evaluations of the Bush Administration's War on Terror to come from inside the administration. More than just a memoir, the book offers a cogent historical and legal analysis of the profound dilemmas that confront administration officials caught between competing demands of protecting the American public while respecting civil liberties. The review sympathetically considers the issues as presented in the book, and traces through the ways in which these difficult matters, all the ones that have confronted the Bush administration and created so many political disputes, will continue to confront …