Constitutional Law Commons^™

How Scotus's Recent Decision On The Cheerleader Case Impacts Public School Students' Due Process Rights For Their Off-Campus Conduct, Abby Efron

St. Mary's Law Journal

No abstract provided.

Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand

Dickinson Law Review (2017-Present)

When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Far-Fetched Uses Of Drug Detection Dog Alerts: A Case Note On United States V. Braddy, Daniel Kaseff

Cardozo Law Review

No abstract provided.

Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston

West Virginia Law Review

No abstract provided.

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a …

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Notre Dame Law Review

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference - 2021-2024

No abstract provided.

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …

Imposing A Daily Burden On Thousands Of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists' Fourth Amendment Rights In Kansas V. Glover, George M. Dery

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, …

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Law Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Scholarly Works

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Hslda Concerned With More Than Just Homeschool, Griffin S. Kelly

Capstones

My capstone is just one piece of a greater investigation into homeschooling in America. For my piece, my colleague Keith Medelis reported on the Home School Legal Defense Association, a premiere homeschooling advocacy group that provides legal advice to its members and lobbies against any regulations they find restrictive to the homeschooling process.

Our goal was to see exactly what their mission is because beyond homeschooling, the HSLDA advocates for small government, religious (mainly Christian) freedoms and protecting its members from child protective services.

A review of 84 court cases revealed that the HSLDA has occasionally engaged in legal battles …

Geofence Warrants: Geolocating The Fourth Amendment, A. Reed Mcleod

William & Mary Bill of Rights Journal

This Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.

In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter's holding must mean …

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …