Law Commons^™

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss, Katherine Mims Crocker, Brandon Hasbrouk

Briefs

No abstract provided.

Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert

Dalhousie Law Journal

Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …

Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick

Faculty Publications

Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Ag-Gag Laws, Animal Rights Activism, And The Constitution: What Is Protected Speech?, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article examines the constitutionality of ag-gag legislation that has recently been adopted by two Canadian provinces and is on the horizon in others. Ag-gag legislation prohibits activities such as trespass onto agricultural animal operations, gaining entry onto agriculture operations using false pretences, and interfering with the transport of farmed animals to slaughter. The analysis draws on case law and literature interpreting section 2(b) of the Canadian Charter of Rights and Freedoms and engages with scholarship related to animal rights activism, American ag-gag legislation, and feminist animal studies to argue that ag-gag laws violate the fundamental freedoms protected by the …

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Washington Cannabusiness: Washington’S Durational Residency Requirement Should Be Eliminated On Economic, Social, And Constitutional Grounds, Alejandro Monarrez

Seattle University Law Review SUpra

No abstract provided.

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review SUpra

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Faint-Hearted Federalism: The Role Of State Autonomy In Conservative Constitutional Jurisprudence, Earl M. Maltz

South Carolina 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.

Pandora's Cake, Mark R. Killenbeck

Arkansas Law Review

Most of us are familiar with the spectre of Pandora's Box, the "present which seems valuable, but which in reality is a curse."' Robert Graves described Pandora as "the most beautiful [woman] ever created.",2 She was sent by Zeus as a gift to Epimetheus, who initially "respectfully" declined to marry her.3 But chastened by the fate of his brother Prometheus, he changed his mind and wed a women who was "as foolish, mischievous, and idle as she was beautiful.",4 She opened a jar that she and her husband had been "warned. .. to keep closed in which"5 Prometheus had "imprison[ed …

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.

Working Papers

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.

Steps Toward Abolishing Capital Punishment: Incrementalism In The American Death Penalty, Melanie Kalmanson

William & Mary Bill of Rights Journal

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a …

Assault On The Constitution: Why The Southern District Of California Got It Right, Robert F. Brawner Ii

Georgia State University Law Review

This Note will examine and analyze the tests applied by federal courts that have heard similar cases, culminating with the recent decision in the Southern District of California, Duncan v. Becerra. In Part I, this Note provides the context surrounding the current bill being considered by Congress and examines Supreme Court and federal circuit court cases addressing this issue. Part II provides analysis of application of the tests applied by the federal courts. Part III argues that the Supreme Court should adopt Judge Benitez’s reasoning laid out in Duncan and apply his test to any Second Amendment challenge to …

Wayfair Or No Fair: Revisiting Internet Sales Tax Nexus And Consequences In Texas, Jennifer Mendez Lopez

St. Mary's Law Journal

Since 1967, the Supreme Court has revisited the issue of nexus requirements in interstate commerce to keep up with social and technological advancements. However, these restrictive requirements have deprived states of a substantial tax basis. As technology continues to develop exponentially, this presents the need for a new standard that overturns precedent case law. Specifically, the Internet has grown and now necessitates the consideration for and e-commerce taxation collection.

South Dakota v. Wayfair, Inc. correctly decided that states have the power to collect taxes from qualifying out-of-state businesses without the need for a physical presence. Wayfair is moving in the …

Foreign-Born Children Of Disloyal Parents: Adam Muthana, Mary Arcedeckne, And The Natural-Born, John Vlahoplus

St. John's Law Review

(Excerpt)

Can Adam Muthana, the foreign-born child of an alien Islamic State of Iraq and Syria (“ISIS”) combatant and a New Jersey-born ISIS adherent, grow up to be president of the United States? He can if he attains the age of thirty-five, resides in the United States for fourteen years, and is a natural-born citizen. He has a facial claim to statutory derivative citizenship at birth through his mother, and some scholars argue that anyone who is a citizen at birth is a natural-born citizen. Nevertheless, there are significant disputes over whether he will be allowed to reside here, whether …

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of women, to eliminate the …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …