Law Commons^™

Abortion, Amendment 1, And The Future Of Procreational Rights Under The Tennessee Constitution, Glenn Harlan Reynolds

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No abstract provided.

The Third Amendment In The 21st Century, Glenn Harlan Reynolds

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No abstract provided.

How To Stop Worrying And Learn To Love The Second Amendment: A Reply To Professor Magarian, Glenn Harlan Reynolds

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In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Texas Law Review 49, 53-72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such …

Low Expectations: How Changing Expectations Of Privacy Can Erode Fourth Amendment Protection And A Proposed Solution, Teri Dobbins Baxter

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Technology has changed the lives of every American, but it has revolutionized the way that young people socialize and become socialized. The increasing use of technology to interact with their peers and shape their identities has led to a change in the way personal information is shared and the privacy expectations that are held with respect to that information. Various studies have found that, in general, younger generations have lower privacy expectations than their older counterparts. This Article considers how these changing attitudes towards privacy among youth have the potential to erode Fourth Amendment protection for everyone. The Article then …

Derrick Bell’S Community-Based Classroom, Joy Radice

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In Derrick Bell’s Community-based Classroom, I argue that Derrick Bell enhanced his participatory pedagogical approach to teaching constitutional law by intentionally creating community within the law school classroom — a community that humanized the students’ educational experience. This essay explores three ways in which he created community: through his participatory, student-centered course structure; his social classroom environment; and his interactive self-assessments. Over the past few years, legal education has come under indictment in the media for not adequately training lawyers for practice. Bell’s community-based classroom responds to this indictment, fusing both theory and practice in teaching doctrinal constitutional law courses …

Constitutional Limits On The Right Of Government Investigators To Interview And Examine Alleged Victims Of Child Abuse Or Neglect, Teri Dobbins Baxter

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Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions …

Juror Privacy In The Sixth Amendment Balance, Melanie Wilson

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Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat putative jurors with care and tact. The opposite is true. During voir dire, potential jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

"You Crossed The Fog Line!" - Kansas, Pretext, And The Fourth Amendment, Melanie Wilson

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This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using "fog-line" traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer …

Saving Law Reviews From Political Scientists: A Defense Of Lawyers, Law Professors, And Law Reviews, Benjamin H. Barton

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This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …

Heller's Future In The Lower Courts, Glenn Harlan Reynolds

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The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie Wilson

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This Article looks at the intersection of the Fourth Amendment, which protects Americans' personal security against arbitrary and oppressive searches by law enforcement officials, and the Eighth Amendment, which proscribes excessive bail. The focus is on the validity and effectiveness of an arrested person's agreement to relinquish some or all of her Fourth Amendment rights as a means of gaining freedom from pre-trial detention. In other words, can an arrested person validly "consent" to waive some of her Fourth Amendment rights to avoid pre-trial detention? Recently, in a case of first impression in the federal courts of appeal, the Ninth …

The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook

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No abstract provided.

Looking Ahead: October Term 2007, Glenn Harlan Reynolds

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A look at some interesting cases likely to come before the U.S. Supreme Court, including Parker v. District of Columbia, the case in which the D.C. gun ban was overturned.

Since When Is Dicta Enough To Trump Fourth Amendment Rights - The Aftermath Of Florida V. J.L., Melanie Wilson

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No abstract provided.

The Religion-State Relationship And The Right To Freedom Of Religion Or Belief: A Comparative Textual Analysis Of The Constitutions Of Predominantly Muslim Countries, Robert C. Blitt

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This study analyzes the constitutional provisions in 44 predominantly Muslim countries addressing the relationship between religion and the state, freedom of religion or belief, and other related human rights as measured against recognized international human rights standards. The geographic diversity of the Muslim world mirrors a central finding of the study, that predominantly Muslim countries encompass a variety of constitutional arrangements - ranging from Islamic republics with Islam as the official state religion, to secular states with strict separation of religion and state. Key findings of the survey include: More than half of the world's Muslim population (estimated at over …

Guns, Privacy, And Revolution, Glenn Harlan Reynolds

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No abstract provided.

Something Seems Fishy - The Application Of The Fourth Amendment To Coast Guard Searches Of Vessels: United States V. Boynes Note, Lucille Jewel

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No abstract provided.

Comfortably Penumbral, Glenn Harlan Reynolds

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A followup to "Penumbral Reasoning on the Right", 140 U. Pa. L. Rev. 1333 (1992), this paper notes the increased use, and acceptance, of penumbral reasoning by federal courts in recent years. It suggests that this trend is a positive one, and likely to lead to more, rather than less, fidelity to constitutional text and structure.

The Constitutional Limits Of Bankruptcy, Thomas E. Plank

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No abstract provided.

The Right To Keep And Bear Arms Under The Tennessee Constitution: A Case Study In Civic Republican Thought, Glenn Harlan Reynolds

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State constitutional rights to arms are of considerable interest, both for their own sake and as sources of insight into the meaning of the Federal Constitution's right to keep and bear arms. This article examines the origins and scope of the right to arms provided in the Tennessee Constitution, including Tennessee cases that, interestingly, were cited as authority by the United States Supreme Court in the 1939 case of United States v. Miller, one of the Supreme Court's few cases to address Second Amendment issues in any depth.

Penumbral Reasoning On The Right, Glenn Harlan Reynolds

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The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure.

Chaos And The Court, Glenn Harlan Reynolds

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Inspired by Laurence Tribe's "The Curvature of Constitutional Space," this Essay looks at some constitutional theorists' desire for certainty and predictability in law, and notes that such certainty and predictability is much less available even in the hard sciences than is generally believed, with simple and determinate systems sometimes producing wildly unpredictable results. It suggests that predictability of results may be a difficult goal for legal theorists, and offers some thoughts on alternative approaches.

Nationwide Preclearance Of Section Five Of The 1965 Voting Rights Act: Implementing The Fifteenth Amendment, Dwight Aarons

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No abstract provided.

Varieties Of Detention And The Fourth Amendment, Joseph G. Cook

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No abstract provided.

Current Problems In Search And Seizure, Joseph G. Cook

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No abstract provided.