Law Commons^™

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello

Adam Lamparello

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through …

A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello

Adam Lamparello

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have …

Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles

Adam Lamparello

Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable.Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct …

Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello

Adam Lamparello

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry …

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway.

Put differently, a hotel owner’s expectation of privacy in a guest registry …

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

Hall V. Florida: The Death Of Georgia’S Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

No abstract provided.

Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in digital devices no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking exclusively about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello

Adam Lamparello

There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

We have a separate but unequal Constitution. The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. And the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and dead for the poor.

One thing, however, should not be disputed: wealthy individuals are entitled to fully enjoy the Constitution’s textual guarantees. Indeed, the notion that Congress—through aggregate limits on individual contributions—may limit the number of candidates to which they can contribute is troubling. But there is a reason. Everyone else—including the poor and middle class—are entitled …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. And the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and dead for the poor. Corporate giants like Goldman Sachs and AT&T line the pockets of senatorial candidates—and purchase influence—while average citizens walk into a polling station, often encounter voter suppression tactics, and cast a largely symbolic vote. Stated simply, we now live in a society of soft inequality. Like the “soft bigotry of low expectations,” soft inequality has created a liberty gap between the …

The Separate But Unequal Constitution, Adam Lamparello

Adam Lamparello

No abstract provided.

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory., Adam Lamparello, Charles Maclean

Adam Lamparello

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the original victim’s harm, instead, on an aggregate proximate cause theory, the original victim would not have been victimized at all had there been no aggregate market of willing possessors for the material. Victims of child pornography, under the federal statute, and via aggregate proximate cause, …

Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello

Adam Lamparello

There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

Partially Concurrent Sentences, Statutory Interpretation, And Legislative Intent: Amicus Brief Filed In State V. Bryant Wilson (Indiana Supreme Court), Adam Lamparello, Charles Maclean

Adam Lamparello

Indiana Code § 35-50-1-2 states that terms of imprisonment “shall be served concurrently or consecutively.” The Code’s plain language does not authorize courts to impose partially consecutive, blended, or “split sentences. Partially consecutive sentences would impermissibly read into the Code a third sentencing option, thus contradicting Indiana’s well-settled jurisprudence and undermining the goal of reasonable uniformity in sentencing. The decision of the Indiana Court of Appeals should therefore be reversed.

Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello

Adam Lamparello

No abstract provided.