Constitutional Law Commons^™

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 …

Handcuffing The Press: First Amendment Limitations On The Reach Of Criminal Statutes As Applied To The Media, Lee Levine, Nathan E. Siegel, Jeanette Melendez Bead

NYLS Law Review

No abstract provided.

Cell Phone Searches Incident To Arrest: A New Standard Based On Arizona V. Gant, Ben E. Stewart

Kentucky Law Journal

No abstract provided.

Material Witness Detentions After Al-Kidd, Wesley Macneil Oliver

Kentucky Law Journal

No abstract provided.

Back To The Future? The Effects Of Citizens United V. Fec In The 2010 Election, 44 J. Marshall L. Rev. 595 (2011), Peter L. Francia

UIC Law Review

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Symposium - The Maryland Constitutional Law Schmooze - Foreword: Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Maryland Law Review

No abstract provided.

Congressional Authority To Interpret The Thirteenth Amendment, Alexander Tsesis

Maryland Law Review

No abstract provided.

What’S Different About The Thirteenth Amendment, And Why Does It Matter?, James Gray Pope

Maryland Law Review

No abstract provided.

The Thirteenth Amendment And The Meaning Of Familial Bonds, Julie Novkov

Maryland Law Review

No abstract provided.

Conclusion: The Political Thirteenth Amendment, Rebecca E. Zietlow

Maryland Law Review

No abstract provided.

The Right To Refuse: Should Prison Inmates Be Allowed To Discontinue Treatment For Incurable, Noncommunicable Medical Conditions?, Daniel R. H. Mendelsohn

Maryland Law Review

No abstract provided.

Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway

Michigan Law Review

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …

Less Than Meets The Eye: Antidiscrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

UC Law Constitutional Quarterly

The conventional wisdom is that, in a series of cases beginning with City of Boerne v. Flores, the Supreme Court erected high barriers against Congress's power to enforce fundamental rights under Section 5 of the Fourteenth Amendment and thereby to abrogate a state's Eleventh Amendment Immunity from private lawsuits. This Article shows that the conventional wisdom is inaccurate. The initial applications of the new Section 5 and Eleventh Amendment jurisprudence, which made abrogation dependent on effective Section 5 action, imposed high standards on what evidentiary record might justify enforcement legislation, and placed stringent limits on the remedies that might be …

A Temporary Solution To Climate Change: The Federal Common Law To The Rescue, Jeremy Hessler

UC Law Constitutional Quarterly

In the latter half of 2009, the Second Circuit in Connecticut v. American Electric Power Co. and the Fifth Circuit in Comer v. Murphy Oil USA provided a strong signal to the political branches that the courts could begin regulating greenhouse gas emissions under common law tort actions. This Note focuses upon recent developments in climate change litigation by closely examining the various issues that arise in these suits, as well as of some of the issues that may arise if the trial courts reach the merits of these cases. This examines the constitutionality of climate change suits under the …

Boumediene As A Constitutional Mandate: Bivens Actions At Guantanamo Bay, Ian Samson

UC Law Constitutional Quarterly

The legal status of and the rights of the persons detained at the United States' facility at Guantdnamo Bay are two of the preeminent questions facing today's legal scholars. The United States initially presented Guantdnamo as a legal netherworld-neither fully within nor exempted from the rule of law. But the Supreme Court's decision in Boumediene v. Bush rejected the government's characterization by deciding that, whatever the legal status of Guantdnamo may be, it certainly is not what the government imagined. This note argues that Boumediene's de jure versus de facto sovereignty distinction applies beyond the writ of habeas corpus and …

Marketplace Of Ideas 2.0: Excluding Viewpoints To Include Individuals, Robert Luther Iii

UC Law Constitutional Quarterly

What are the implications of the Christian Legal Society v. Martinez decision? First, in ruling that public universities may require that all recognized student organizations permit any and "all comers" to be eligible for all offices of the organization, the Court issued a narrow rule that is praiseworthy for its clarity but for little else. Second, and on the issue of precedent, it is worth noting that by ratifying Hastings' "all-comers" policy, the Court overlooked numerous precedents and historical facts that recognize the rights of students to associate with those of similar beliefs on campus and free of university-imposed burdens. …

California Dreaming: A Case To Give States Discretion In Providing In-State Tuition To Its Undocumented Students, Debra Urteaga

UC Law Constitutional Quarterly

Should undocumented students qualify for in-state tuition? In a recent decision by the California Supreme Court, the answer is "yes." California Education Code section 68130.5 provides that anyone, including undocumented immigrants, may qualify for in-state tuition if the student has attended a California high school for at least three years and has graduated from a California high school. This issue, however, has been the subject of heated controversy for some time, and certain college students went as far as to sue the Regents of the University of California for admitting undocumented students into their schools. The arguments, however, are misguided.

The Role Of Reporter For A Law Project, Rory K. Little

UC Law Constitutional Quarterly

Professor Little has served as the Reporter for the ABA's Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions since 2005. In this introductory essay for a unique joint publication Symposium between the Hastings Constitutional Law Quarterly and the Hastings Law Journal focused on the Standards, Professor Little provides his description of the role of a Reporter for a law project. Surprisingly, despite almost a century of academics serving as Reporters for law projects sponsored by the American Law Institute and the ABA, there is no literature providing the "inside story" of a Reporter's role. …

A Different Path Taken: Texas Capital Offenders' Post-Atkins Claims Of Mental Retardation, Peggy M. Tobolowsky

UC Law Constitutional Quarterly

In 2002, in Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is unconstitutional, and entrusted the enforcement of this constitutional ban to the states. In the absence of legislative action in Texas, the Texas Court of Criminal Appeals has established substantive and procedural standards to resolve Texas offenders' Atkins claims of mental retardation for offenders seeking state post-conviction relief. This Texas appellate court has also specified most of the standards to resolve Atkins claims at the trial court level and on direct appeal. The United States Court of Appeals for the Fifth …

Spreading The Wealth: Is Asset Forfeiture The Key To Enticing Local Agencies To Enforce Federal Drug Laws, David T. Gibson

UC Law Constitutional Quarterly

The "War on Drugs" has proven a costly program for the federal government. One of the ways that this ambitious and resource intensive effort has sustained itself is through asset forfeiture of property previously held by criminals. By seizing title to confiscated property that has been used directly in drug crimes or indirectly to further a criminal conspiracy, the government has been able to absorb substantial resources to further its efforts in waging its drug war against drug criminals.

Asset forfeiture is a powerful tool wielded by law enforcement, and can quickly and effectly shut down drug production and trafficking …

How To Hold A State Constitutional Convention In The Twenty-First Century, 44 Loy. L.A. L. Rev. 603 (2011), Ann Lousin

UIC Law Open Access Faculty Scholarship

Although few states have held constitutional conventions in recent decades, there is renewed interest in holding state constitutional conventions in the twenty-first century. This Essay explains the author's views on holding such a convention, based on her experience in Illinois and with a view toward a California convention. The author believes that the two keys to a successful convention in the twenty-first century are extensive preparation and transparency. Only with preparation can the delegates and staff of a convention draft a document worthy of adoption. Only with great transparency of the process, especially in the Internet age, can the citizens …

Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011), Sonia Bychkov Green

UIC Law Open Access Faculty Scholarship

No abstract provided.

Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy

UIC Law Open Access Faculty Scholarship

No abstract provided.

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman

Student Articles and Papers

While the world of commercial air transportation has seen major improvements in many technologies over the last decade, nothing has caused a stir quite like the implementation of full-body scanners (FBS) as a one of the first lines of defense in aviation security at U.S. airports.  FBS and “enhanced” pat-downs have been the source of much debate and scrutiny among passengers, flight crews, privacy rights groups, and federal authorities in charge of airport screening.  The paper begins with a general overview of the law as it pertains to airport searches and privacy rights.  In Part II, the technology behind the …

The Cross National Memorial: At The Intersection Of Speech And Religion, 61 Case W. Res. L. Rev. 1171 (2011), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, 39 Cap. U. L. Rev. 1 (2011), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Constitutional Revision: Are Seriatim Amendments Or Constitutional Conventions The Better Way To Amend A State Constitution?, 115 Penn St. L. Rev. 1099 (2011), Ann M. Lousin

UIC Law Open Access Faculty Scholarship

No abstract provided.

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, 44 U. Mich. J.L. Reform 557 (2011), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …