Law Commons^™

Are Non-Judicial Sales Unconstitutional? The Super-Priority Lien And Its Influence On State Foreclosure Statutes, Ryan Prsha

Missouri Law Review

Part II of this Note discusses the background necessary to understand the super-priority lien and its constitutional implications in regards to nonjudicial foreclosure. Part III reviews the recent developments that have given rise to this issue. Part IV discusses the ramifications of the manner in which the super-priority lien is being handled and how the court’s methodology could potentially affect the constitutionality of non-judicial foreclosure.

Truth Or Doubt? An Empirical Test Of Criminal Jury Instructions, Michael D. Cicchini, Lawrence T. White

University of Richmond Law Review

Part I of this article briefly discusses the concept of proof beyond a reasonable doubt, along with its importance to individuals and society generally. Part II surveys some of the truth-related language used in multiple state and federal jurisdictions. It also examines the constitutional problems created by this language and discusses courts' inadequate responses to these problems.

Part III explains our controlled experiment, including our hypotheses, study design, and empirical findings. Part IV discusses these findings and their significance and argues that courts should immediately terminate their use of truth-based jury instructions so that our constitutional guarantees are fulfilled. Finally, …

The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger

University of Richmond Law Review

No abstract provided.

Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

For many years, the Trademark Trial and Appeal Board has re-fused to address constitutional claims raised in the course of registration or cancellation proceedings. A recent example involves the Washington Redskins trademark, which is the subject of a cancellation proceeding now before a U.S. Court of Appeals. The Board’s refusal to address constitutional issues rests on the assumption that the Board lacks the authority to make constitutional decisions. That may seem odd, given the fact that the Board is an arm of the federal government, and its members are bound to uphold the Constitution. This Article examines the basis of …

Newsroom: Goldstein On Fossil Fuel Fraud Liability 04-12-2016, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

13th Annual Diversity Symposium Dinner 04-07-2016, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

“Show Me” Your Legal Status: A Constitutional Analysis Of Missouri’S Exclusion Of Daca Students From Postsecondary Educational Benefits, Britteny Pfleger

Missouri Law Review

This Note discusses how Missouri’s exclusion of in-state tuition and state scholarship funding affects DACA students and concludes the Missouri legislature’s proposal violates the Fourteenth Amendment’s Equal Protection Clause. Part II explores the DACA program and its effects on both DACA individuals and society; it then lays out Missouri law on higher education benefits, both prior to and after the passage of HB 3 and SB 224. Next, Part III details the process used to evaluate equal protection claims based on immigration status. Part IV scrutinizes the legislation under equal protection case law, ultimately concluding in Part V that HB …

Appellate Remedy: The Ancient Precedents Of A Modern Right, Peter S. Poland

The Journal of Appellate Practice and Process

No abstract provided.

Tohono O’Odham Nation V. City Of Glendale, 804 F.3d 1292 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

Tohono O’odham Nation v. City of Glendale is a reminder of the tension between state governments and the federal government. It also reflects continued unease with tribal gaming policies. The Ninth Circuit reiterated the longstanding federal preemption doctrine to override the State of Arizona and City of Glendale’s attempted circumvention of the Gila River Bend Indian Reservation Land Replacement Act. In doing so, the court prevented state legislation from undermining the Tohono O’odham Nation’s ability to obtain replacement lands for its reservation.

Maintaining Institutional Power And Constitutional Principles: A Rhetorical Analysis Of United States V. Nixon, R. Scott Medsker, Todd F. Mcdorman

Speaker & Gavel

In examining these implications we argue that the Court’s Nixon decision was a uniquely strategic response to a complex rhetorical situation. In fact, the elements of the situation were so fundamental to the tenor of the Court’s response that this essay’s framework is drawn from Lloyd F. Bitzer’s construction of the rhetorical situation. The use of this system will allow for deeper consideration of the context of United States v. Nixon as well as assessment of the legal text as responsive to that context.

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.

Court Of Appeals Of New York People V. Jeanty, Rosemarie Barnett

Touro Law Review

No abstract provided.

Appellate Division, Third Department Matter, Of Schulz V. Pataki, Daniela Licata

Touro Law Review

No abstract provided.

A Federal Role In Education: Encouragement As A Guiding Philosophy For The Advancement Of Learning In America, Gerard Robinson

University of Richmond Law Review

No abstract provided.

Legal Precedent And The Opportunity For Educational Equity: Where To Now, Colorado?, Molly A. Hunter, Kathleen J. Gebhardt

University of Richmond Law Review

No abstract provided.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

Restoring Nobility To The Constitution: A Modern Approach To A Founding Principle, Marc A. Greendorfer

ConLawNOW

It is common lore in the United States that our federal government was structured with a number of checks and balances that ensure, at a minimum, the equal application of law among all citizens. While there are indeed such structural mechanisms embedded in the Constitution, they don’t always work as intended and, in fact, at times they fail utterly to prevent blatant abuses of the rule of law by the vast and growing political class in America. Our political office holders (and their favored constituents) can, and do, pick and choose which laws apply to them and, more importantly, which …

E Pluribus Unum: Controversias Estatales Y Compromisos Nacionales En La Formación De La Constitución De Los Estados Unidos De América, Robert S. Barker

Barker Papers

La tesis de este breve trabajo es que muchas de las caracteristicas basicas de la Constituci6n de los Estados Unidos son productos de diferencias y debates entre Estados y regiones del pais, y de compromisos politicos alcanzados entre los representantes de esos distintos Estados.

The thesis of this brief work is that many of the basic characteristics of the Constitution of the United States are products of differences and debates between States and regions of the country, and political commitments required compromise by the representatives of these different States.

Holmes And Brennan, Howard Wasserman

Faculty Publications

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections …

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae Quinn, Eirik Cheverud

Journal Articles

This Article advances a simple claim in need of enforcement in this country right now: no person may be arrested for an alleged violation of civil, as opposed to criminal, law. Indeed, courts have long interpreted the Fourth Amendment as prohibiting arrest except when probable cause exists to believe that a crime has been committed and that the defendant is the person who committed the crime. However, in many places police take citizens into custody without a warrant for the non-criminal conduct of allegedly breaking civil laws. This unfortunate phenomenon received national attention in St. Louis, Missouri following the death …

From Edward To Eric Garner And Beyond, Nancy C. Marcus

Faculty Scholarship

The year-long period of police killings of unarmed black civilians across the United States between July 2014-15 has been the subject of broad condemnation and discourse, including in the author’s previous police reform article titled Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform (59 Howard L.J. 5 (2015)).

In the year following Professor Marcus’s Howard Law Journal police reform article, Marcus continued to track police reform efforts that transpired in the aftermath of the 2014-15 killings. This article, From Edward to Eric Garner and Beyond: The Importance of Constitutional Limitations on Lethal Use of …

Frederick Douglass’S Constitution: From Garrisonian Abolitionist To Lincoln Republican, Paul Finkelman

Missouri Law Review

This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, …

Sustainable Constitutional Growth? The “Right To Farm” And Missouri’S Review Of Constitutional Amendments, Angela Kennedy

Missouri Law Review

Part I discusses the historical background and enactment of the amendment. Next, Part II outlines the legal challenges available during the political constitutional amendment process, detailing what challenges were – or were not – made to the right-to-farm amendment during its enactment. Part III discusses how Missouri courts generally review legislatively-referred constitutional amendments and how they would likely review challenges brought under the right-to-farm amendment. Part IV discusses the adequacy of existing legal challenges to Missouri constitutional amendments – particularly on the front end – when these amendments are enacted via a single election. It also provides suggestions for the …

Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray

Marquette Law Review

Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or …

Interpretation: Article I, Section 5, Ronald Weich, Martin B. Gold

All Faculty Scholarship

In Article I of the Constitution, the Framers vest the legislative authority of the United States government in a bicameral Congress, and over the ten sections of the Article they systematically flesh out the structure, duties, and powers of that Congress. In the early sections of Article I they describe the membership of each House, giving life to the “Great Compromise” of the Constitutional Convention under which each state has equal representation in the Senate but population-based representation in the House of Representatives. In Section 5, they grant Congress the power to govern itself.

Section 5 consists of four separate …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Politics At Work After Citizens United, Ruben J. Garcia

Loyola of Los Angeles Law Review

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the “one percent” in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes

Loyola of Los Angeles Law Review

No abstract provided.