Law Commons^™

Sovereign Immunity And The West Virginia Constitution, J. Zac Ritchie

West Virginia Law Review

No abstract provided.

The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader

West Virginia Law Review

Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This …

Why Cost/Benefit Balancing Tests Don't Exist: How To Dispel A Delusion That Delays Justice For Immigrants, Joshua J. Schroeder

West Virginia Law Review

In 2022, the U.S. Supreme Court nullified its earlier presumption that indefinite immigrant detention without bond hearings is unconstitutional under Zadvydas v. Davis. If Zadvydas is a nullity, those who raise due process balancing tests during the post-removal-period in immigrant habeas review may need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s demise

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For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It …

Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov

West Virginia Law Review

Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …

God, Guns, And Hair Salons: Public Perceptions Of Rights And Liberties During The Covid-19 Pandemic, Jessica R. Graham, Kyle J. Morgan

West Virginia Law Review

In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. …

Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston

West Virginia Law Review

No abstract provided.

Caperton V. A.T. Massey Coal Co.: A Ten-Year Retrospective On Its Impact On Law And The Judiciary, Amam Mcleod

West Virginia Law Review

No abstract provided.

Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward

West Virginia Law Review

When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …

The Reprieve Power: May The Uniform Code Of Military Justice Limit Executive Clemency?, Nino C. Monea

West Virginia Law Review

Article 57 of the Uniform Code of Military Justice states the President "may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended." This seemingly contradicts Article 2 of the United States Constitution, which states that the President "shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This Article looks at whether the power to "reprieve" offenses includes the power to suspend sentences, including military sentences, and concludes that it does. The …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

Uncertain Immunity: Assessing Qualified Immunity In The Context Of Post-Arrest Excessive-Force Claims Arising Prior To A Judicial Determination Of Probable Cause, J. Tyler Barton

West Virginia Law Review

No abstract provided.

On Target? Assessing Gun Sanctuary Ordinances That Conflict With State Law, Sheila Simon

West Virginia Law Review

No abstract provided.

Indigent Defense In West Virginia: A Historical Look At Public Defender Services, Ralph E. Mckinney Jr., Casey W. Baker J.D.

West Virginia Law Review

No abstract provided.

Criminal Law--Production Of Government Records--Confidential Character, R. G. P.

West Virginia Law Review

No abstract provided.

"23 And Plea": Limiting Police Use Of Genealogy Sites After Carpenter V. United States, Antony Barone Kolenc

West Virginia Law Review

No abstract provided.

Hard Cases Make Bad Law: Extraterritorial Application Of The United States Constitution, Brendan O. Beutell

West Virginia Law Review

The Constitution’s extraterritorial scope does not arise often in litigation. Two recent decisions broached the issue. Both arrived at opposite conclusions. And these decisions share a common thread: They confuse more than they clarify while begetting novel questions of law. Does the Constitution protect noncitizens abroad? If so, how? If not, why not? This Note addresses each of these questions in turn. Ultimately, this Note concludes that the Constitution does not have any extraterritorial application whatsoever to noncitizens abroad.

The Need For A Wealth Inequality Amendment, Stuart Ford

West Virginia Law Review

No abstract provided.

When The First And Second Amendments Collide: The Free Speech Implications Of West Virginia's Business Liability Protection Act Of 2018, Alex A. Tsiatsos

West Virginia Law Review

No abstract provided.

State Ex Rel. Holmes V. Gainer: The Legislative Pay Raise And The Disappearing West Virginia Constitution, Matthew L. Clark

West Virginia Law Review

No abstract provided.

Won't You Be My Neighbor: Meza-Rodriguez, The Second Amendment, And The Constitutional Rights Of Noncitizens, Blair E. Wessels

West Virginia Law Review

No abstract provided.

Clinton V. Jones: The King Has No Clothes (Nor Absolute Immunity To Boot), Christopher James Sears

West Virginia Law Review

No abstract provided.

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.

Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins

West Virginia Law Review

No abstract provided.

Co-Parenting War Powers: Congress's Authority To Escalate Conflicts, Russell A. Spivak

West Virginia Law Review

This article argues that Congress has the ability to force a President to escalate military intervention when he is otherwise unwilling to do so. The article begins by exploring the constitutional powers at Congress's disposal-the Declare War Clause, the Taxing and Spending Clause, and the Commander-in-Chief Clause-and their historical application. It then establishes that, under Justice Jackson's Youngstown framework, the Executive would be acting in Category Three, meaning that the President may "rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Citing multiple Article I clauses, this article argues that Executive action in …

Between Description And Prescription: Law, Wittgenstein, And Constitutional Faith, Gregory Brazeal

West Virginia Law Review

The occasions on which ajudge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitutionrequiresthe opposite ofher ideologicalpreferences, are extremely rare. Yetjudges andscholarscontinuetopresenttheirconclusionsastheproduct ofideologicallyneutralreasoning,while often criticizingthe ideologicalbiasin thereasoningoftheiropponents.A Wittgensteinianperspectiveonthenatureof legaldiscoursecanshed lighton thispuzzlinglypersistentstateofaffairs. Legal discourse, includingconstitutionalargument, is partly defined by the blending ofdescriptive reasoningabout what the law is with prescriptivereasoningabout what the law ought to be. To reach a legal conclusion based on a blend of descriptiveandprescriptivereasoning,andtophrasethis conclusion aspurely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception …

Keep Your Powder Dry And Your Standards High: Protect The Second Amendment's Core With Strict Scrutiny Review, Rebecca L. Trump

West Virginia Law Review

No abstract provided.

Executive Enforcement Discretion And The Separation Of Powers: A Case Study On The Constitutionality Of Daca And Dapa, Louis W. Fisher

West Virginia Law Review

No abstract provided.

Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella

West Virginia Law Review

No abstract provided.

Fallout From Obergefell: The Dissolution Of Unconventional Adoptions To Pave The Way For Same-Sex Marriage Equality, Jodi B. Mileto

West Virginia Law Review

No abstract provided.

Pinging Into Evidence: The Implications Of Historical Cell Site Location Information, Alexandra C. Smith

West Virginia Law Review

No abstract provided.