Constitutional Law Commons^™

Minister Of Justice V. Zohar, Dorit Beinisch, Eliezer Rivlin, Edna Arbel, Esther Hayut, Salim Joubran, Miriam Naor, Elyakim Rubinstein, Edmond E. Levy, Yoram Danziger

Translated Opinions

Facts: The respondent was convicted of various crimes and sentenced to life imprisonment in 1996, after which he was given additional sentences for crimes committed while on leave from jail. In 2004, he applied to the then-President of the State, Moshe Katzav, to reduce the duration of his sentence. Although the Minister of Justice at the time (Tzipi Livni) recommended that the application be denied, the President signed a letter limiting the respondent’s sentence to 32 years. The Minister of Justice refused to countersign the document approving the reduced sentence, as did other Ministers of Justice who served after …

November 25, 2010: Happy Thanksgiving, Bruce Ledewitz

Hallowed Secularism

Blog post, “Happy Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 23, 2010: Religion, Art, Science And Philosophy Are Invitations, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Religion, Art, Science and Philosophy Are Invitations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

NULR Online

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then …

November 20, 2010: The Task Of Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Task of Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Is A Mentally Ill Defendant Still Considered Competent To Waive The Right To Counsel In New York After Indiana V. Edwards?, John H. Wilson

Pace Law Review

No abstract provided.

November 18, 2010: “Getting Honest”, Bruce Ledewitz

Hallowed Secularism

Blog post, ““Getting Honest” “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 16, 2010: How Is Reality God-Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How is Reality God-Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 14, 2010: Global Warming, Bruce Ledewitz

Hallowed Secularism

Blog post, “Global Warming“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 11, 2010: So, What About God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, What About God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 7, 2010: How To Fix The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Fix the Establishment Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 5, 2010: “Let The Free Market Reign”, Bruce Ledewitz

Hallowed Secularism

Blog post, ““Let the Free Market Reign”“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 3, 2010: Pat Tommey A Citizens United Victory, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pat Tommey a Citizens United Victory“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin

Faculty Publications

Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a more narrowly tailored …

Teens, Porn, And Video Games: Is It Time To Rethink Ginsberg?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally "protected") pornography to persons under age 17.

The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational …

No Direction Home: Constitutional Limitations On Washington's Homeless Encampment Ordinances, Jordan Talge

Washington Law Review

The Washington State Constitution protects the free exercise of religion. It also vests strong police power in local governments. When these two constitutional provisions conflict, the Washington State Supreme Court must draw the line between valid police power action and impermissible burden on free exercise. In City of Woodinville v. Northshore United Church of Christ, a municipal government crossed that line. The City of Woodinville, Washington refused to consider a church’s application to host a homeless encampment. The Court held this outright refusal to be an unjustified infringement on the church’s free exercise of religion. The Court did not, …

Another Can Of "Crawford" Worms: Certificates Of Nonexistence Of Public Record And The Confrontation Clause, Keith Hollingshead-Cook

Vanderbilt Law Review

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right .. . to be confronted with the witnesses against him."' When the Supreme Court decided Crawford v. Washington in 2004, it established a new standard for assessing the scope of this right and determining when hearsay is admissible as trial evidence against a criminal defendant. Rather than basing decisions regarding a defendant's right to confrontation on a judicial inquiry into the reliability of a particular statement, an approach typified by the Court's earlier decision of Ohio v. …

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …

"The People" Of The Second Amendment: Citizenship And The Right To Bear Arms, Pratheepan Gulasekaram

Faculty Publications

The Supreme Court's recent Second Amendment decision, District of Columbia v. Heller asserts that the Constitution's right to bear arms is an individual right to armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term "the people" as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited …

The Right To Voice Reprised, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article appears in a symposium issue of Seton Hall Law Review on courtroom epistemology. In Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness, I argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the …

Judging Myopia In Hindsight: Bivens Actions, National Security Decisions, And The Rule Of Law, Peter Margulies

Law Faculty Scholarship

Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the …

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee J. Strang

BYU Law Review

No abstract provided.

Unraveling Lawrence's Concerns About Legislated Morality: The Constitutionality Of Laws Criminalizing The Sale Of Obscene Devices, Nathan R. Curtis

BYU Law Review

No abstract provided.

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker - And The Role Of The Due Process Clause, Lynn Mclain

Cardozo Law Review

No abstract provided.

Political Party Restrictions And The Appointments Clause: The Federal Election Commission's Appointments Process Is Constitutional, Joshua Kershner

Cardozo Law Review

No abstract provided.

No One Ever Died From Copyright Infringement: The Inducement Doctrine's Applicability To Firearms Manufacturer Liability, Shane Wagman

Cardozo Law Review

No abstract provided.

Deactivating The Mousetrap: Entrapment By Estoppel As A Defense To Federal Felon-In-Possession Charges, Madeline Stavis

Cardozo Law Review

No abstract provided.

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

October 31, 2010: Why I Wish No One Had Gone To The Stewart/Colbert Rally, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why I Wish No One Had Gone to the Stewart/Colbert Rally“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 28, 2010: Is Islam A Religion Of Peace?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Islam a Religion of Peace?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.