Constitutional Law Commons^™

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Seeking An Islamic Reflective Equilibrium: A Response To Abdullahi A. An-Na'im’S Complementary, Not Competing, Claims Of Law And Religion: An Islamic Perspective, Mohammad H. Fadel

Pepperdine Law Review

Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na'im's solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Pepperdine Law Review

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Just Another Brick In The Wall: The Establishment Clause As A Heckler's Veto, Richard F. Duncan

Nebraska College of Law: Faculty Publications

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'

Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Emerging Technologies And Dwindling Speech, Jorge Roig

Scholarly Works

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Evaluating High School Students' Constitutional And Civic Literacy: A Case Study Of The Washington, D.C. Chapter Of The Marshall-Brennan Constitutional Literacy Project, Maryam Ahranjani, Caleb Medearis, Jeff Shook

Scholarly Works

The United States maintains a reputation as a vibrant, participatory democracy. Yet, paradoxically, formal civics education has essentially disappeared from America's public high schools, particularly urban public schools serving low-income and minority students. The Marshall-Brennan Constitutional Literacy Project, which is offered at almost zero cost to public schools and districts, developed as a response to the need for civics education in high schools and as a way to train future lawyers in public speaking, leadership, and counseling. To support the growth of the Marshall-Brennan project all over the country, the authors of this Essay came together to study the Marshall-Brennan …

State-Sponsored Religious Displays In The U.S. And Europe: Introduction, Mark L. Movsesian

Faculty Publications

On June 22, 2012, the Center for Law and Religion proudly hosted, together with the Department of Law at Libera Universita Maria SS. Assunta (LUMSA), an international conference, State-Sponsored Religious Displays in the U.S. and Europe. Held at LUMSA's campus in Rome, Italy, the conference brought together leading American and European scholars, judges, and government officials to address the legality of public religious displays in different nations. Professor Silvio Ferrari of the University of Milan delivered the Conference Introduction. Panels included Cultural or Religious? Understanding Symbols in Public Places; The Lautsi Case and the Margin of Appreciation; and State-Sponsored Religious …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Melinda Taylor, Charles C. Jalloh

Articles

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman

Faculty Articles

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a …

Imagining A Same-Sex Marriage Decision Based On Dignity: Considering Human Experience In Constitutional Law, Danieli Evans

Articles

California’s Proposition 8 allows same sex couples to join through civil unions, which grant the legal benefits afforded to married couples but denies them the official label of “marriage.” The lower court eschewed the question of whether Proposition 8 burdens any fundamental right by concluding there is not even a rational basis (the minimum standard for the constitutionality of any law) for this law, as its sole effect is to deny same sex couples the designation of marriage.

We appreciate the lower court’s caution not to extend our fundamentalrights jurisprudence beyond precedent. However, we are positioned to elaborate fundamental constitutional …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Arizona’S Senate Bill 1070: A Case Study On State-Sponsored Immigration Policy, Ryan Murphy

Master's Theses

This study assesses the origins of Arizona’s state-sponsored immigration policy. It attempts to identify the social dynamics within Arizona that contributed to the overwhelming public support for SB 1070. Since it has been two years after the law was passed, this analysis determines what impact the law has had thus far within the state. Finally, it postulates the future of Arizona’s immigration policy.

The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson

Pepperdine Law Review

No abstract provided.

A First Amendment Right Of Access To A Juror's Identity: Toward A Fuller Understanding Of The Jury's Deliberative Process , Robert Lloyd Raskopf

Pepperdine Law Review

No abstract provided.

Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni

Pepperdine Law Review

No abstract provided.

An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson

Pepperdine Law Review

No abstract provided.

Hodgson V. Minnesota: Chipping Away At Roe V. Wade In The Aftermath Of Webster, Selina K. Hewitt

Pepperdine Law Review

No abstract provided.

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle

Pepperdine Law Review

No abstract provided.

Ban On Nude Dancing Strips Away First Amendment Rights To Protect "Order And Morality" In Barnes V. Glen Theatre, Inc., Shannon Mclin Carlyle

Pepperdine Law Review

No abstract provided.

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

California's Constitutional Right To Privacy, J. Clark Kelso

Pepperdine Law Review

No abstract provided.

United States V. Alvarez-Machain: Kidnapping In The "War On Drugs" - A Matter Of Executive Discretion Or Lawlessness?, Michael G. Mckinnon

Pepperdine Law Review

No abstract provided.

The Private Club Exemption From Civil Rights Legislation - Sanctioned Discrimination Or Justified Protection Of Right To Associate, Margaret E. Koppen

Pepperdine Law Review

No abstract provided.