Constitutional Law Commons^™

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

Filling The Gap Of Domestic Violence Protection: Returning Human Rights To U.S. Victims, Melanie Kalmanson

Florida State University Law Review

The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous US. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one's human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for …

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Legal Studies Research Paper Series

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision-makers to deport individuals who pose de jure security risks to face torture …

The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby

Brooklyn Law Review

As a reaction to the Supreme Court’s historic marriage equality decision earlier this summer, many Southern state legislators opposing the trend toward LGBT-protective laws have proposed legislation that would essentially prohibit municipalities from carving out new antidiscrimination protections for the LGBT community. Conservative Senator Bart Hester spearheaded the passing of one of these “anti” antidiscrimination laws in Arkansas, and states like Texas, West Virginia, Michigan, and Oklahoma are not far behind. These “Hester-type laws” are strikingly similar to the Colorado amendment struck down by the Romer v. Evans Court 20 years ago. Both the Colorado amendment and the new wave …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Australians' "Right" To Be Bigoted: Protecting Minorities' Rights From The Tyranny Of The Majority, Jillian Rudge

Brooklyn Journal of International Law

Australia’s Racial Discrimination Act (RDA) is a federal statute prohibiting behavior that offends, insults, humiliates, or intimidates people based on their race, nationality, ethnicity, or immigration status. It appropriately limits the right to freedom of expression where the exercise of that right encroaches on other, equally fundamental rights to equality and freedom from discrimination. The RDA is one of Australia’s few human rights laws focused on fighting racism. It is especially important for protecting the rights of minorities since Australia lacks a constitutional or federal bill of rights. Unfortunately, in 2014 and 2015, conservative politicians called for a repulsion of …

The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin

Brooklyn Journal of International Law

Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; …

The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher

Brooklyn Journal of International Law

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that, at its most critical moments, was (and continues to be) informed by U.S. constitutional law design and statutory interpretation principles. On one level, that is no surprise when “it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” But, what is extraordinary is that the decision of the framers of the Australian Constitution to …

Bordering The Constitution, Constituting The Border, Efrat Arbel

All Faculty Publications

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

Evading Miller, Robert S. Chang, David A. Perez, Luke M. Rona, Christopher M. Schafbuch

Seattle University Law Review

Miller v. Alabama appeared to strengthen constitutional protections for juvenile sentencing that the United States Supreme Court recognized in Roper v. Simmons and Graham v. Florida. In Roper, the Court held that executing a person for a crime committed as a juvenile is unconstitutional under the Eighth Amendment. In Graham, the Court held that sentencing a person to life without parole for a nonhomicide offense committed as a juvenile is unconstitutional under the Eighth Amendment. In Miller, the Court held that a mandatory sentence of life without parole for a homicide offense committed by a juvenile is also unconstitutional under …

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Corporate Rights And Individual Interests: The Corporate Right To Privacy As A Bulwark Against Warrantless Government Surveillance, Kayla Robinson

Cardozo Law Review

No abstract provided.

Another Casualty Of The War . . . Vagrancy Laws Target The Fourth Amendment, T. Leigh Anenson

Akron Law Review

This Comment will review the origins of the vagrancy law and its traditional abuses. It will then examine decisions discussing the vagrancy law's constitutionality under the Due Process clause void-for-vagueness doctrine and the courts' attempted remedy of explicit standards as to place, scope, or purpose. The remainder of this Comment will discuss the constitutionality of these revised vagrancy laws under the Fourth Amendment's prohibition of unreasonable seizures.

The Second Rodney King Trial: Justice In Jeopardy?, Robert C. Gorman

Akron Law Review

This Comment will trace the roots of the Double Jeopardy Clause of the U.S. Constitution and provide a detailed look at the development of the dual sovereignty doctrine. After this overview, it will analyze the historical, legal and policy arguments advanced by supporters and opponents of the doctrine. It will examine proposals for altering or abolishing the doctrine. Finally, in light of the underlying analysis, it will revisit the Rodney King case and examine whether the defendants' second trial - or any successive prosecution - is justified.

Coming Out Is A Free Pass Out: Boy Scouts Of America V. Dale, N. Nicole Endejann

Akron Law Review

This Note discusses the three Supreme Court cases that have delineated the battle between public accommodation laws and an organization’s freedom of expressive association: Roberts v. United States Jaycees, Board of Directors of Rotary International v. Rotary Club of Duarte, and New York State Club Association, Inc. v. City of New York. Specifically, this Note focuses on the development of the balancing test which courts use to protect these two constitutional freedoms. This Note then analyzes the Supreme Court’s decision in Boy Scouts of America v. Dale, pointing out its deviations from the Roberts Trilogy. Finally, this Note explains the …

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Ag Gag Past, Present, And Future, Justin F. Marceau

Seattle University Law Review

While the animal rights and food justice movements are relatively young, their political unpopularity has generated a steady onslaught of legislation designed to curtail their effectiveness. At each stage of their nascent development, these movements have confronted a new wave of criminal or civil sanctions carefully tailored to combat the previous successes the movements had achieved.

Opening The Barnyard Door: Transparency And The Resurgence Of Ag-Gag & Veggie Libel Laws, Nicole E. Negowetti

Seattle University Law Review

Over the past several decades, as the agricultural system became increasingly industrialized and the steps from farm to plate multiplied, consumers became farther removed from the sources of their food. Until recently, most consumers in America were content to eat their processed, cheap, and filling foods without giving a second thought to how these foods were produced. The tides are changing. Increasingly, consumers are calling for more transparency in the food system. Repulsed by images of animal cruelty and shocked by unsavory food production practices, consumers want the food industry’s veil lifted and are demanding changes in food production. The …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

The 2014 Farm Bill: Farm Subsidies And Food Oppression, Andrea Freeman

Seattle University Law Review

The 2014 Farm Bill ushered in some significant and surprising changes. One of these was that it rendered the identity of all the recipients of farm subsidies secret. Representative Larry Combest, who is now a lobbyist for agribusiness, first introduced a secrecy provision into the bill in 2000. The provision, however, only applied to subsidies made in the form of crop insurance. Until 2014, the majority of subsidies were direct payments and the identity of the people who received them was public information. In fact, the Environmental Working Group’s release of the list of recipients led to a series of …

Babies Behind Bars: An Evaluation Of Prison Nurseries In American Female Prisons And Their Potential Constitutional Challenges, Seham Elmalak

Pace Law Review

This note opens the prison doors and delves into the United States female prison system, primarily focusing on the positive and negative impact of nursery programs on mothers and children, along with potential constitutional claims that can be brought against these programs. Part I provides a general background about the American prison system, and briefly touches on the constitutional standards of prisoners’ rights. It also discusses the history and development of female prisons and illustrates the rapid increase of female incarceration. Part II focuses on the prevalence of mothers within the female population in prisons. Part III introduces prison nursery …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …