Law Commons^™

Core Criminal Procedure, Steven Arrigg Koh

Faculty Scholarship

Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the …

A Blind Spot In Miranda Rights: Juveniles' Lack Of Understanding Regarding, Wadad Barakat

St. Thomas Law Review

This Comment addresses the negative implications of juveniles who waive their Miranda rights due to lack of knowledge, fear, and lack of cognitive capabilities." First, this Comment will provide insight regarding the Fifth Amendment, the history of Miranda, and key cases that lead to the reform of Miranda. Second, this Comment will discuss juveniles' perspective of the Miranda language along with the police's perspective. In particular, it will emphasize the complexity of the language as it stands today and how juveniles' cognitive abilities are insufficiently developed to understand it. Lastly, this Comment will propose guidelines to prevent minors from giving …

The Rational Basis Test And Why It Is So Irrational: An Eighty-Year Retrospective, James M. Mcgoldrick Jr.

San Diego Law Review

The Rational Basis test is one of the most common and yet perhaps the most insignificant United States Supreme Court test in the history of the constitution, yet year in year out clients and lawyers will submit another brief hoping against hope that this time there might be a meaningful outcome. There will not be.

This article attempts to explain why the rational basis test is so irrational in its outcome, why basic interests are disregarded in the name of judicial respect for the legislative process, and how easy it would be for there to be a better outcome. The …

Murr V. Wisconsin, Nathan A. Burke

Public Land & Resources Law Review

In Murr v. Wisconsin, the Court redefined how to determine private property for a regulatory taking under the Fifth Amendment. Previously, courts have primarily relied on state property principles to determine the relevant unit of property for a regulatory takings claim. However, in this case, the Court adopted a three-factor standard to determine the landowner’s reasonable expectations regarding the treatment of their property. By relying on these factors rather than only on state laws, the Court created a litigation-specific definition of property that could potentially differ from state property boundaries. The three-factor standard may also give the government an …

Wheeler For Two, Do You Have A Reservation? The Supreme Court's Inconsistent Treatment Of Tribal Sovereignty, Fred Kantrow

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Carranza, Yale Pollack

Touro Law Review

No abstract provided.

United States V. Patane: The Beginning Of The End Of Miranda, Bryce Chauncey Loveland

Touro Law Review

No abstract provided.

Overseas Lawful Permanent Resident Terrorists: The Novel Approach For Revoking Their Lpr Status, Daniel Pines

San Diego Law Review

This Article seeks to break the silence by examining the issue of overseas LPRs and offering a mechanism by which the U.S. government could take affirmative action to file cases in immigration courts to strip out-of-status LPR terrorists of their LPR status. As the United States legally can, and routinely does, revoke the LPR status of out-of-status LPRs who appear at U.S. borders, the United States could also take away such status for those who have resorted to terror, without having to wait—perhaps in vain—for them to appear on the United States’ doorstep. The purpose of granting an individual LPR …

Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf

Irene Scharf

This Article starts with the premise that the right to unemployment insurance benefits is a property right protected by the Fifth and Fourteenth Amendments to the United States Constitution, which apply to noncitizen unemployment applicants as well as to United States citizens. Given this assumption, certain actions being taken by the United States Department of Labor ("DOL") violate both procedural and substantive due process as well as the Administrative Procedure Act ("APA"). The challenged actions involve the DOL's issuance of internally-created missives, termed Unemployment Insurance Program Letters ("Program Letters"), that purport to interpret the meaning of a requirement under federal …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Irene Scharf

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Fifth Amendment Protection For Public Employees: Garrity And Limited Constitutional Protections From Use Of Employer Coerced Statements In Internal Investigations And Practical Considerations, J. Michael Mcguinness

Touro Law Review

No abstract provided.

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

The Sanctity Of The Attorney-Client Relationship – Undermined By The Federal Interpretation Of The Right To Counsel - People V. Borukhova, Tara Laterza

Touro Law Review

No abstract provided.

Turn-Coat Disclosure: The Importance Of Following Procedure - Turturro V. City Of New York, Brittany A. Fiorenza

Touro Law Review

No abstract provided.

I’Ll Take “Improper Declarations Of Mistrial” For $2,000.00: Applying The Protection Against Double Jeopardy - Robar V. Labuda, Daniel Fier

Touro Law Review

No abstract provided.

Homosexuals, Equal Protection, And The Guarantee Of Fundamental Rights In The New Decade: An Optimist’S Quasi-Suspect View Of Recent Events And Their Impact On Heightened Scrutiny For Sexual Orientation-Based Discrimination, John Nicodemo

Touro Law Review

No abstract provided.

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Patricia E. Salkin

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin

Patricia E. Salkin

In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.

Appellate Division, Fourth Department: People V. Gibson, Kashima A. Loney

Touro Law Review

No abstract provided.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Faculty Publications

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Right To An Attorney, Henry L. Chambers, Jr.

Law Faculty Publications

The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.

Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin

Scholarly Works

In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Scholarly Works

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

The Uniform Innocent Owner Defense To Civil Asset Forfeiture: The Civil Asset Forfeiture Reform Act Of 2000 Creates A Uniform Innocent Owner Defense To Most Civil Forfeiture Cases Filed By The Federal Government, Stefan D. Cassella

Kentucky Law Journal

No abstract provided.

Clients Should Have No Interest In Iolta Programs: An Analysis Of The Supreme Court's Decision In Phillips V. Washington Legal Foundation, Emily Hood

Kentucky Law Journal

No abstract provided.

"[B]Etween The Devil And The Deep Blue Sea:"* A Look At The Fifth Amendment Implications Of Probation Programs For Sex Offenders Requiring Mandatory Admissions Of Guilt, Brendan J. Shevlin

Kentucky Law Journal

No abstract provided.

Status Of Double Jeopardy And Forfeiture Law In The Sixth Circuit, Stefan D. Cassella

Kentucky Law Journal

No abstract provided.

The Supreme Court Limits The Fifth Amendment Right To Counsel By Requiring Clear Requests--Davis V. United States, Gregory J. Griffith

Kentucky Law Journal

No abstract provided.