Constitutional Law Commons^™

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

Scholarly Works

No abstract provided.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Scholarly Works

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt

Scholarly Works

No abstract provided.

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

Scholarly Works

The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …

The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Scholarly Works

No abstract provided.

Business Interest Cases – October 2009 Term, Leon D. Lazer, Leon Friedman

Scholarly Works

No abstract provided.

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

Scholarly Works

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …

Business Interests Cases - October 2009 Term, Leon D. Lazer Honorable, Leon Friedman

Touro Law Review

No abstract provided.

Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine

Scholarly Works

No abstract provided.

The Shifting Doctrinal Face Of Immutability, Tiffany C. Graham

Scholarly Works

This Article will examine the concept of immutability as it has been used in equal protection jurisprudence, particularly in the context of the gay rights movement. As a traditional matter, immutability was viewed as a doctrine that limited suspect and quasi-suspect classification status to those groups whose identities were fixed in some visible, often biological fashion. This narrow understanding of immutability served a purpose: it limited suspect or quasi-suspect status to those groups of individuals who were not at fault in some way for the subordinate condition in which they existed. Since the decisions in In re Marriage Cases, …

Race And Education: The Future Of Desegregation In The United States, Gregory Coleman Jr.

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Dream Of Equal Educational Opportunity Deferred, Giovanni Luciano Escobedo

Journal of Race, Gender, and Ethnicity

No abstract provided.

Gender Autonomy, Transgender Identity And Substantive Due Process: Finding A Rational Basis For Lawrence V. Texas, Jillian T. Weiss

Journal of Race, Gender, and Ethnicity

No abstract provided.

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

Scholarly Works

No abstract provided.

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Scholarly Works

No abstract provided.

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

Scholarly Works

No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

Scholarly Works

In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine

Scholarly Works

In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …

Constitutional Litigation Under Section 1983 And The Bivens Doctrine In The October 2008 Term, Martin A. Schwartz

Touro Law Review

Section 1983 is the major enforcer of individual federal constitutional rights. It authorizes individuals to enforce their constitutional rights against state and local officials; for example,prison officers and police officers, and against municipalities. It is the most important civil statute in American law. To its credit, the United States Supreme Court understands the significance of § 1983.

For the past three decades, in virtually every single Term of theCourt, it has decided a substantial number of cases dealing with different facets of § 1983 litigation. Last Term, there was anunusual number of § 1983 decisions rendered by the United States …

The Shot Heard Around The Lgbt World: Bowers V Hardwick As A Mobilizing Force For The National Gay And Lesbian Task Force, Elizabeth Sheyn

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement: A Call For Legislative Reform, Timothy P. Gilligan

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement And The Systemic Racism Of The Criminal Justice System, Matthew D. Itkin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement As A Legitimate State Regulation, Boyoung Kang

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

Scholarly Works

Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The …

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

Scholarly Works

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Torture, Necessity, And Supreme Emergency: Law And Morality At The End Of Law, Zachary R. Calo

Scholarly Works

This paper employs Michael Walzer's concept of "Supreme Emergency" to address the permissibility of torture under conditions of necessity. It proposes moving beyond both utilitarian and deontological approaches to legal authority in order to understood necessity as a moral category. A full account of right action under conditions of necessity therefore demands taking account of the distinct yet cooperative function provided by legal and moral norms. A political official might therefore possess moral but not legal warrant to act in contravention of binding legal norms. Preserving the validity of law is essential to the economy of social reconstitution in the …