Law Commons^™

To Live More And Die Less: Challenging Tennessee's Anti-Trans Birth Certificate Policy, Guy E. Tustin Iii

Lincoln Memorial University Law Review Archive

This note analyzes Gore, et al., v. Lee, et al., a case challenging Tennessee's birth control policy which explicitly prohibits trans people born in Tennessee from correcting their gender marker to accurately reflect their gender identity. The note begins with a description of the issues the lawsuit hopes to address and continues with a description of the parties, history of anti-trans birth certificate jurisprudence, an analysis of lawyering strategies, and concludes with First Amendment strategies which may be used to fight state laws requiring trans citizens to complete gender confirming procedures in order to correct their birth certificate gender markers.

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to

Food Choice Is A Fundamental Liberty Right, David J. Berg

Journal of Food Law & Policy

"[P]laintiffs do not have a fundamental right to obtain any food they wish." "When did we lose our right to buy whatever food we want directly from farmers and assorted food producers, outside of the regulatory system of permits and inspections?" For millennia, humans either caught or raised their own food or purchased it from local farmers or shopkeepers; however they obtained their food, they knew where it came from. In fact, obtaining one's food directly from the farmer who grew it is one of the most traditional economic practices that there can be. But with the industrial age came …

Animal Legal Defense Fund V. Otter: Industrial Food Production Simply Is Not A Private Matter, Lucy L. Holifield

Journal of Food Law & Policy

About half of the states have either passed or attempted to pass laws aimed at stifling criticism and exposure of factory farms throughout the country. This unwanted exposure is often the result of undercover reporters gaining access to the interior of meat-producing entities by seeking and obtaining employment. Their reports often expose filthy and dangerous conditions, substantial animal abuse, and the incorporation of unfit animal products into the public's food supply.

The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang

Vanderbilt Law Review

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”

This Article challenges that …

Balance Requirements For Standards Development Organizations: A Historical, Legal And Institutional Assessment, Justus Baron, Jorge L. Contreras, Pierre Larouche

Utah Law Faculty Scholarship

Most technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making and appeals. These requirements arise from numerous sources including antitrust law, international trade law, public procurement requirements and institutional norms. Yet balance criteria lack a generally-accepted definition and the manner in which they are implemented varies, sometimes dramatically, among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders, including in the development of intellectual property rights policies. This article explores the origins and meaning of …

State Laws For Due Process Hearings Under The Individuals With Disabilities Education Act Iii: The Pre-Hearing Stage, Andrew M.I. Lee, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This article is the third in a triad of analyses of state law additions to the basic requirements of the Individuals with Disabilities Education Act (IDEA) for due process hearings (DPHs). The first two articles of this series covered the hearing and post-hearing stages of IDEA DPHs. The purpose of this follow-up analysis is to supplement the earlier articles by canvassing state law provisions specific to the pre-hearing stage. After an introduction and overview of the literature, this article covers IDEA foundational requirements for DPHs, and then summarizes and codes the state law provisions that supplement the federal template. As …

Consent By Registration: The "Back-Door Thief", Nate Arrington

Arkansas Law Review

Consider this personal jurisdiction quandary: A growing Arizona company wants to start expanding into other states. The company is incorporated in Delaware and has its principal place of business in Arizona. It decides to make the leap and begins registering to do business in a few surrounding states, including New Mexico. The registration seems straightforward and does not mention anything about jurisdiction. After the registration, but before conducting any business in New Mexico, a Kentucky resident decides to sue the Arizona-based corporation. The suit is based on an alleged tort occurring in Utah, and the plaintiff files the lawsuit in …

Statutory And Constitutional Problems With Judicially-Imposed Patent-Claim Limitations, Sloane Kyrazis

Journal of Intellectual Property Law

The safety valve standard articulated in In re Katz Interactive Call Processing Litigation is at odds with the provisions of the U.S. Patent Act and violates constitutional due process. Without requisite constitutional protections and those protections guaranteed by the U.S. Patent Act, patentees in complex modern patent litigation are at risk of having their patent rights deprived from contrary to the congressional intent articulated in the statute and without requisite process. The courts must balance their need for efficient administration of the law in patent cases by implementing equitable measures to ensure that patentees’ rights are not trampled on. Additionally, …

Asylum Under Attack: Restoring Asylum Protections In The United States, Lindsay M. Harris

Journal Articles

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to …

Improving The Legal And Regulatory Framework Of Restraint And Seclusion In D.C. Public Schools, James Gallagher

Upper Level Writing Requirement Research Papers

No abstract provided.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Scholarly Articles

A federally funded universal representation program can serve as a practical first step toward the abolition of immigration detention and the other harsh enforcement mechanisms that are utilized today. While abolition is typically an ideology espoused by a small subsection of the general population, its purpose can be achieved through a less partisan and broader reaching ideal -- fiscal efficiency and responsibility. By demonstrating that the provision of counsel and other wrap around services is significantly less costly than immigration detention, while also showing that providing counsel and wrap around services is an extremely effective way to ensure compliance, this …

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

All Faculty Scholarship

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …

You Can't Trust Everything On The Internet: A Look Into Texas' And Maryland's Approach Of Social Media Authentication, Danielle Orr

Catholic University Journal of Law and Technology

If unauthenticated evidence is admitted into the court's record, and makes a defendant’s charge more probable, that defendant’s Fifth and Fourteenth Amendment rights to life and liberty have been violated. Social media evidence, due to the ease of hacking and catfishing, can be unreliable, thus Maryland and Texas have led the way, with two respective approaches, on how to handle such evidence. Maryland, with its proscribed three authentication methods, has a less trusting view of social media, and realizes the dangers wrongfully entered evidence may have on a defendant’s due process. Alternatively, Texas has not heighten scrutiny on social media …

Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens

Articles

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling …

Mdl Revolution, Elizabeth Chamblee Burch, Abbe Gluck

Scholarly Works

Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to …

The Perfect Match: Solving The Due Process Problem Of Signature Matching With Federal Agency Regulation, Rachel Blumenstein

Vanderbilt Journal of Entertainment & Technology Law

Local election commissions in the United States disenfranchise Americans when they erroneously reject voters’ mail-in ballots for failed signature matches. Disenfranchisement is not only problematic because it is dangerous to the health of American democracy, but also because signature matching violates the procedural due process protections voters are entitled to when they exercise their right to vote. Furthermore, the practice of signature matching is one of many ballot access restrictions that disproportionately impact minority voters under the guise of voter fraud prevention. Expanding the Election Assistance Commission’s mandate to allow it to develop more accurate methods of ballot verification can …

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

Guilt By Association On The Docks And In The Casinos, Conor Byrnes

Touro Law Review

No abstract provided.

Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall

Touro Law Review

Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.

Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher

Touro Law Review

No abstract provided.

Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper

Marquette Law Review

The Sixth Amendment’s criminal jury right is integral to the United States

criminal justice system. While this right is also implicated by the Due Process

Clause, Equal Protection Clause, and several federal and state statutes,

criminal jury trial rates have been declining for decades, down from

approximately 20% to 2% between 1988 to 2018. This dramatic drop in the

rate of criminal jury trials is an effective measure of the decreased access to

fair and constitutional criminal jury trials.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Kangaroo Courts, Shaun Ossei-Owusu

All Faculty Scholarship

Kangaroo courts are seemingly everywhere and nowhere. Legal actors often use this term to describe substandard and defective tribunals across various areas of American law. Yet there are few scholarly treatments of this evocative term. Without embracing this specific description, Professor Alexandra Natapoff’s Criminal Municipal Courts provides vivid insights into a rarely explored world of administration that has many of the trappings of kangaroo courts. Natapoff catalogs how municipal courts — also referred to as “town,” “summary,” “justice,” “mayor,” and “police” courts — are sometimes replete with conflicts of interests, shockingly staffed with nonlawyer judges, and often flouting standard criminal …