Law Commons^™

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

William & Mary Law Review

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This Article offers a more rehabilitative reading of Windsor and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills two concrete doctrinal propositions …

Surrogate's Court, Broome County, In Re Guardian Of Derek, Barry M. Frankenstein

Touro Law Review

No abstract provided.

Criminal Court, New York County, People V. Dejesus, Justin Goldberg

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Buari, Matthew Moisan

Touro Law Review

No abstract provided.

Family Court, Queens County, In Re German F. And Hector R., Angelique Hermanowski

Touro Law Review

No abstract provided.

Supreme Court, Queens County, People V. Tam, Elaine Yang

Touro Law Review

No abstract provided.

Ending Perpetual War? Constitutional War Termination Powers And The Conflict Against Al Qaeda, David A. Simon

Pepperdine Law Review

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ …

Presidential Constitutionalism And Civil Rights, Joseph Landau

William & Mary Law Review

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons—most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

The Transformative Twelfth Amendment, Joshua D. Hawley

William & Mary Law Review

Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college—and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive’s relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, …

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

William & Mary Bill of Rights Journal

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Marriage Equality In State And Nation, Anthony Michael Kreis

William & Mary Bill of Rights Journal

No abstract provided.

Transgender Inpportunity And Inequality: Evaluating The Crossroads Between Immigration And Transgender Individuals, Alexandra Caggiano

Seattle University Law Review

Despite being married to a U.S. citizen, non-citizen transgender individuals and non-citizen spouses married to transgender U.S. citizens still face deportation today due to current immigration policies. When forced to return to their home countries, transgender individuals are likely to encounter violence from those who perpetuate hate towards transgender and gender non-conforming individuals. Instead of protecting these individuals, the United States continues to send people back to their native countries solely because those individuals do not fall within the narrowly constructed definition of marriage some states use that is legally recognized by federal courts. Transgender individuals receive disparate treatment as …

Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted Its Role And The Washington State Constitution, Nicholas Carlson

Seattle University Law Review

In the realm of constitutional interpretation, the judicial department reigns supreme. League of Education Voters v. State exemplifies the judiciary’s potential abuse of its interpretative role: The Washington Supreme Court misinterpreted its judicial function because it ignored the text of Washington State’s constitution and held a statute unconstitutional. The court, therefore, voided a statute because of judicial volition, not because Washington’s constitution demanded that outcome. This Note challenges the reasoning in League and makes a novel suggestion for Washington State constitutional analysis, an approach that may apply to other states. This Note details a new analytical framework for constitutional analysis …

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian Bartrum

NULR Online

No abstract provided.

Constitutional Purpose And The Anti-Corruption Principle, Zephyr Teachout

NULR Online

No abstract provided.

Same-Sex Divorce, Tracy A. Thomas

Akron Law Faculty Publications

Same-sex marriage is now legal in seventeen states and sixteen countries. The question increasingly being asked is how these couples can divorce. For those who remain in their home state or in a marriage equality state, the divorce process should be the same as for any other marriage. The problem arises because people are transient; couples often relocate for jobs or family, or they initially traveled out of their home state for the marriage. “In a highly mobile society, state bans on same-sex marriage have in many cases made untying the knot far harder than tying it in the first …

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Education Rights And The New Due Process, Areto A. Imoukuede

Journal Publications

This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights. In The Fifth Freedom, I argued that there is a fundamental duty under the U.S. Constitution to provide public education and that the reason a fundamental right to public education has not been recognized is because of a profound confusion regarding fundamental rights as duties.' The Court is biased …

Deflating Autonomy, Charles R. Mendez

South Carolina Law Review

No abstract provided.

More Is More: Strengthening Free Exercise, Speech, And Association, John D. Inazu

Scholarship@WashULaw

Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights. In Hamburger’s words, “more is less.” We can think of cautions like these as arguments for rights confinement. On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly. But the interplay between doctrine and …

The Conflict Of Visions In Nfib V. Sebelius, Jonathan H. Adler

Faculty Publications

In 2010, few anticipated the fate of healthcare reform would rest with the Supreme Court. Yet National Federation of Independent Business v. Sebelius [hereinafter NFIB] emerged as a watershed case that could remake the constitutional landscape. NFIB presented a conflict between two constitutional visions of federal power and the role of the courts in policing such limits--an unconstrained vision, under which limits on federal power are enforced primarily through the political process, and a constrained vision, under which constitutional limits on federal power are enforced by the courts. The contrasting views of the constitutionality of the individual mandate and …

The Slow Evolution Of Second Amendment Law, Joan H. Miller

Seattle University Law Review Online

Shortly after the Sandy Hook Elementary School shooting left twenty children and six adults dead, a public movement ensued. The movement demanded that gun violence be addressed as a public health issue. While the movement led to successful gun control reform in a few states, it was unable to gain any traction in the federal government and had the opposite effect in others states where firearms became easier to own, carry, and conceal. Joan Miller provides an update on changes in the Second Amendment law that have occurred since her Article, The Second Amendment Goes to College, was published in …