Law Commons^™

Electronic Data: A Commentary On The Law In Virginia In 2007, Hon. Thomas D. Horne

University of Richmond Law Review

No abstract provided.

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

Young, Illegal, And Unaccompanied: One Step Short Of Legal Protection, Raya Jarawan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Sarah Mourer

This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be …

National Security, The Law, The Meda: Shaping Public Perceptions, Linda Robinson

International Law Studies

No abstract provided.

Without Limitation: 'Groundhog Day' For Incompetent Defendants, J. Amy Dillard

All Faculty Scholarship

This Article offers a brief overview of the standards for determining competency to stand trial. After examining the seminal case of Jackson v. Indiana, which held that the indefinite pre-trial detention of incompetent defendants violates due process, this Article argues that Virginia Code § 19.2-169.3, like statutes in twenty other states, violates a defendant's right to substantive due process, including the right to be free from forcible medication. This Article proposes legislation that will make the process constitutional, while addressing the concerns about the release of dangerous individuals held by the prosecutors and the community.

Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith

Journal of Dispute Resolution

This article will analyze why the position of the courts-no state action-is correct. Specifically, this article will take the position that the policy of finality traditionally found in arbitration law must trump any constitutional inquiries. This is because arbitration is ultimately based on the parties' agreement, which inevitably recites that the arbitrator's decision shall be final and, in any event, this finality is generally implied.

Hope For The Best And Prepare For The Worst: The Capital Defender's Guide To Reciprocal Discovery In The Sentencing Phase Of Georgia Death Penalty Trials, Adam Levin

Georgia State University Law Review

No abstract provided.

Dwi And Drugs: A Look At Per Se Laws For Marijuana, Charles R. Cordova, Jr.

Nevada Law Journal

No abstract provided.

How Do We Deal With This Mess? A Primer For State And Local Governments On Navigating The Legal Complexities Of Debris Issues Following Mass Disasters, Ryan M. Seidemann, Megan K. Terrell, Christopher D. Matchett

ExpressO

The devastation wrought by the 2005 hurricane season brought into bold relief the need for comprehensive debris management plans in the United States. As cleanup efforts commenced following Hurricane Katrina, it became abundantly apparent that the local governments were not prepared to deal with the massive scope of the debris problem.

Disasters will occur. It is not a matter of if, but a matter of when. The entire nation is at risk of being struck by some type of disaster at some time. The best way to deal with the outfall from these disasters is to be prepared for them …

Services For Private School Students Under The Individuals With Disabilities Education Improvement Act: Issues Of Statutory Entitlement, Religious Liberty, And Procedural Regularity, Mark Weber

College of Law Faculty

Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 (“Improvement Act”) amends the Individuals with Disabilities Education Act (“IDEA”) with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private …

Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff

Law Faculty Publications

No abstract provided.

What's Love Got To Do With It?: The Corporations Model Of Marriage In The Same-Sex Marriage Debate, Jeremiah A. Ho

Faculty Publications

The time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law. When that time comes, property rights and perhaps even mutual obligations of support may well be held to flow from such relationships. But in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as "marriages". At most, they would become personal relationships having some, but not all, of the legal attributes of marriage. And even when and if …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

Missouri Law Review

The Second Amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause. This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the longdormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers' vision, as inspired …

Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart

Faculty Scholarship

No abstract provided.

Adult Rights As The Achilles’ Heel Of The Best Interests Standard: Lessons In Family Law From Across The Pond, Margaret Ryznar

Margaret Ryznar

Family law litigants have long searched for permutations of constitutional principles that gain access to federal courts. Typically, such litigants have been most successful with due process and equal protection arguments—even at the expense of the venerable “best interests of the child” standard in child-related cases. One legal system currently wrestling with this familiar clash between the interests of children and adults is that of England—where adults are armed with the rights granted by the Human Rights Act 1998, while children’s interests are given preference in an earlier act, the Children Act 1989. England’s strategy in dealing with this conflict …

Services For Private School Students Under The Individuals With Disabilities Education Improvement Act: Issues Of Statutory Entitlement, Religious Liberty, And Procedural Regularity, Mark C. Weber

Mark C. Weber

Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 (“Improvement Act”) amends the Individuals with Disabilities Education Act (“IDEA”) with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private …

Public Health Law As Administrative Law: Example Lessons, Edward P. Richards

Journal of Health Care Law and Policy

No abstract provided.

An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston

UF Law Faculty Publications

In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …

The Process Due Indefinitely Detained Citizens, Carl W. Tobias

Law Faculty Publications

A very controversial feature of the "war on terror" is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question.

The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a …

Comment: The Ninth Amendment: A Constitutional Challenge To Corporal Punishment In Public Schools, David R. Hague

Faculty Articles

The Supreme Court's refusal to resolve the conflict over corporal punishment in public schools perpetuates the uncertainty over children and parents' legal rights. The use of corporal punishment in public schools unconstitutionally abridges parents' right to direct the upbringing of their children because it forces parents to accept the emotional and physical marks that corporal punishment leaves on their children. In 1977, the Supreme Court addressed the constitutionality of corporal punishment in Ingraham v. Wright. The Court held that the cruel and unusual punishment clause of the Eighth Amendment applied only to criminal punishments and thus provided no protection against …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

The Land Of The Free: Human Rights Violations At Immigration Detention Facilities In America, Caitlin J. Mitchel

LLM Theses and Essays

In America today, aliens who commit even minor visa violations can be detained in one of many immigration detention facilities throughout the U.S. These detainees may be transferred to a facility far away from their homes, families, and attorneys. While imprisoned in these detention facilities, some detainees are treated as and housed with criminals. Their substantive and procedural rights are limited and their human rights are violated. The U.S. laws that should protect them are the very laws that strip them of their rights to court proceedings, challenges of decisions regarding detention, and judicial review. By issuing substantial reservations, declarations, …

Rejecting "Uncontrolled Authority Over The Body": The Decencies Of Civilized Conduct, The Past And The Future Of Unenumerated Rights, Seth F. Kreimer

University of Pennsylvania Journal of Constitutional Law

When Roe v. Wade was decided, many constitutional scholars viewed it as a unique event, an aberrant invocation of unenumerated rights forged under the twin pressures of an occluded legislative process and women's urgent demands for reproductive autonomy. Three decades later, this critique is a less persuasive reading of the constitutional landscape. A generation of constitutional development and a broader view of the sweep of constitutional history situates Roe as part of a pattern of decisions protecting the bodies of "we the people" against the violence and control of the state. The pattern does not appear clearly in most constitutional …

Making Judicial Recusal More Rigorous, James J. Sample, David Pozen

Faculty Scholarship

The right to an impartial arbiter is the bedrock of due process. Yet litigants in most state courts face judges subject to election and reelection – and therefore to majoritarian political pressures that would appear to undermine the judges' impartiality. This tension has existed for as long as judges have been elected (and, to some extent, for as long as they have been appointed, in which case campaigns often take a less public but equally politicized form).

In recent years, however, this tension has become more acute. Today, state courts around the country increasingly resemble – and are increasingly perceived …

The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen

Faculty Scholarship

In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.

The attacks are fueled in part by the growing influence …

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe …

Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger

Faculty Scholarship

In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.

The first set of …

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …