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2013

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Articles 811 - 840 of 1053

Full-Text Articles in Constitutional Law

Indiana V. Edwards: The Prospect Of A Heightened Competency Standard For Pro Se Defendants, Ashley N. Beck Jan 2013

Indiana V. Edwards: The Prospect Of A Heightened Competency Standard For Pro Se Defendants, Ashley N. Beck

University of Colorado Law Review

The Sixth Amendment to the United States Constitution guarantees a criminal defendant both the right to the assistance of counsel and the right of self-representation. The right of self-representation is deeply ingrained in the Anglo- American system of justice, but so is the requirement that a criminal defendant be tried only if competent to stand trial. In Indiana v. Edwards, the Supreme Court recognized a "gray area" of competency, noting that competency to stand trial with the assistance of counsel may not equate to competency to proceed pro se. In Edwards, the Court held that a trial court retains the …

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Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance Jan 2013

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

University of Colorado Law Review

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by public school officials to prevent school crime: random, suspicionless searches of students' belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a substance abuse or weapons problem. Second, it provides a normative evaluation of strict security measures in schools, especially when they are applied disproportionately to minority students. Third, drawing on recent restricted data from the U.S. Department of Education's School Survey on Crime and Safety, this Article provides empirical findings that raise …

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Byron White-Hero And Scholar: Reflections About Punishment, Political Speech, And Public Liability, Justice John Paul Stevens Jan 2013

Byron White-Hero And Scholar: Reflections About Punishment, Political Speech, And Public Liability, Justice John Paul Stevens

University of Colorado Law Review

No abstract provided.

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Misguided Patent Reform: The Questionable Constitutionality Of First-To-File, Andrew L. Sharp Jan 2013

Misguided Patent Reform: The Questionable Constitutionality Of First-To-File, Andrew L. Sharp

University of Colorado Law Review

American cigarette warning labels are lackluster compared to others around the world. To address this inadequacy, the FDA created nine graphic-image cigarette warning labels that were scheduled to appear on all cigarette packages sold in the US beginning in 2012. However, before they debuted, the D.C. Circuit Court of Appeals struck the labels down in R.J. Reynolds Tobacco Co. v. FDA, holding that they constituted compelled commercial speech in violation of the First Amendment. This Note argues that the R.J. Reynolds decision conflicts with the Supreme Court's commercial speech jurisprudence. Historically, the Supreme Court has applied limited First Amendment protection …

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Walking The Executive Speech Tightrope: From Starbucks To Chick-Fil-A, Loren F. Selznick Jan 2013

Walking The Executive Speech Tightrope: From Starbucks To Chick-Fil-A, Loren F. Selznick

Oklahoma Law Review

No abstract provided.

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Access To Government Information Is A Foundation Of American Democracy—But The Courts Don't Get It, Frederick A. O. Schwarz Jr. Jan 2013

Access To Government Information Is A Foundation Of American Democracy—But The Courts Don't Get It, Frederick A. O. Schwarz Jr.

Oklahoma Law Review

No abstract provided.

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A Reasonable Doubt About "Reasonable Doubt", Miller W. Shealy Jr. Jan 2013

A Reasonable Doubt About "Reasonable Doubt", Miller W. Shealy Jr.

Oklahoma Law Review

The Supreme Court has failed to define the concept of “reasonable doubt” with any precision. The Court tolerates conflicting definitions of “reasonable doubt.” It permits some jurisdictions to forbid any definition of “reasonable doubt,” while giving others wide latitude to define the concept in ways that are contradictory. If the Court truly regards the “proof beyond a reasonable doubt” standard to be an “ancient and honored aspect of our criminal justice system,”1 a “bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law,’”2 then the Court cannot continue to tolerate the current …

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Protecting The Lydias, Linas, And Tinas From Sex Trafficking: A Call To Eliminate Ambiguities Of 18 U.S.C. § 1591, Tiffanie N. Choate Jan 2013

Protecting The Lydias, Linas, And Tinas From Sex Trafficking: A Call To Eliminate Ambiguities Of 18 U.S.C. § 1591, Tiffanie N. Choate

Oklahoma Law Review

No abstract provided.

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The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser Jan 2013

The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser

Oklahoma Law Review

No abstract provided.

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The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder Jan 2013

The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder

Scholarly Works

The art of constitution-making is never one-dimensional. In regard to the United States' model, it has recently been argued that "[d]espite the enormous literature on the critical period, including the foreign affairs imperatives behind the movement for reform, it is not fully understood that the animus behind the reform effort that culminated in the new Constitution was a desire to ensure that the United States would be in a position to meet its international commitments and thereby earn international recognition."' While there are obvious differences, and while this concept is perhaps of even greater importance and more poignantly felt for …

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Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer Jan 2013

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

Scholarly Works

The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.

Towards the end of the article, to clarify and decide the constitutional issues, the author …

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Emerging Technologies And Dwindling Speech, Jorge Roig Jan 2013

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, …

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Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz Jan 2013

Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz

Scholarly Works

This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …

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Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz Jan 2013

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

Scholarly Works

This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

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Due Process And The Future Of Class Actions, Alexandra Lahav Jan 2013

Due Process And The Future Of Class Actions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

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The Regulation Of Race In Science, Kimani Paul-Emile Jan 2013

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

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No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman Jan 2013

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …

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Separation Of Church And State, Neutrality And Religious Freedom In American Constitutional Law, Robert A. Sedler Jan 2013

Separation Of Church And State, Neutrality And Religious Freedom In American Constitutional Law, Robert A. Sedler

Law Faculty Research Publications

Religious freedom is a favored value under the United States Constitution. The Constitution provides two-fold protection to religious freedom by means of the Establishment Clause and the Free Exercise Clause. The Establishment Clause protects against the “establishment” of an official church by the government and against governmental action “establishing religion,” while the Free Exercise clause is a textual guarantee of peoples’ right to practice their religion and to hold and act on religious beliefs, free from governmental interference. The Establishment Clause would appear to an outside observer as strongly endorsing the concept of separation of church and state, and the …

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Origins Of The Privileges And Immunities Of State Citizenship Under Article Iv, Stewart Jay Jan 2013

Origins Of The Privileges And Immunities Of State Citizenship Under Article Iv, Stewart Jay

Loyola University Chicago Law Journal

The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that Article IV’s clause was intended to …

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National Federation Of Independent Business V. Sebelius: Five Takes, Glenn H. Reynolds, Brannon P. Denning Jan 2013

National Federation Of Independent Business V. Sebelius: Five Takes, Glenn H. Reynolds, Brannon P. Denning

UC Law Constitutional Quarterly

In National Federation of Independent Business v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act-popularly known as "Obamacare"-was an unconstitutional assertion of Congress' power to regulate commerce among the several states, but was nonetheless sustainable under Congress' power to tax. This piece looks at some possible meanings and implications of the Supreme Court's decision. Takes One and Two analogize Sebelius and two other famous cases-Marbury v. Madison and Regents of the University of California v. Bakke-whose opinions are held out as deftly straddling the line between principle and prudence. Takes Three and Four examine the …

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Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo Jan 2013

Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo

Educational Leadership Faculty Publications

School business officials (SBOs) must, in many respects, serve as all things to all people in their workplaces. Put another way, SBOs must be knowledgeable about a wide range of legal issues ranging from contracts to setting policy to state biding laws let alone constitutional matters involving the rights of students and teachers. Aware of the fact that issues involving the law are at the heart of many of a SBO’s duties, the chapters in this edited book have been written by a diverse array of individuals with experience as educational leaders in schools and/ or who possess significant expertise …

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Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda Jan 2013

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

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Interpreting Precise Constitutional Text: The Argument For A “New” Interpretation Of The Incompatibility Clause, The Removal & Disqualification Clause, And The Religious Test Clause—A Response To Professor Josh Chafetz’S Impeachment & Assassination, Seth Barrett Tillman Jan 2013

Interpreting Precise Constitutional Text: The Argument For A “New” Interpretation Of The Incompatibility Clause, The Removal & Disqualification Clause, And The Religious Test Clause—A Response To Professor Josh Chafetz’S Impeachment & Assassination, Seth Barrett Tillman

Cleveland State Law Review

In an article in another journal, Professor Josh Chafetz wrote: “[I]mpeachment maintains the link between removal and death, but attenuates it. . . . Impeachment is . . . a political death—a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning. But before doing so, I think it might be …

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Constitutional Law - Due Process Clause - The Due Process Clause Of The Fifth Amendment Requires Fair Notice Of What Violates Federal Indecency Standards, Jon L. Mills Jan 2013

Constitutional Law - Due Process Clause - The Due Process Clause Of The Fifth Amendment Requires Fair Notice Of What Violates Federal Indecency Standards, Jon L. Mills

UF Law Faculty Publications

Casenote regarding Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012).

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Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance Jan 2013

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

UF Law Faculty Publications

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings that raise …

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Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock Jan 2013

Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock

Articles

No abstract provided.

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The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona Jan 2013

The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona

St. Thomas Law Review

This article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states.

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Pre-Apprendi Sentencing: Issues Surrounding The Retroactivity Of An Unconstitutional Sentence, Priscilla S. Zaldivar Jan 2013

Pre-Apprendi Sentencing: Issues Surrounding The Retroactivity Of An Unconstitutional Sentence, Priscilla S. Zaldivar

St. Thomas Law Review

This comment ventures to provide a manageable resolution to the issues that have arisen from the implementation and subsequent limitations of the federal sentencing guidelines. Part II discusses the sentencing guidelines' history, creation, and evolution. This part also reviews the pertinent cases that have shaped the relevance and application of the sentencing guidelines by the U.S. Supreme Court. Part III details the successful retroactivity of the Boggs Act as a real-world example of the feasibility of retroactivity. Finally, Part IV provides an administrative solution to the problems with retroactive application of the Booker/Fanfan decision in order to remedy the unconstitutional …

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Sixth Amendment Right To Counsel: Broaden The Scope, Decriminalize, And Ensure Indigents A Fair Chance In Court And In Life, Maria C. Pena Jan 2013

Sixth Amendment Right To Counsel: Broaden The Scope, Decriminalize, And Ensure Indigents A Fair Chance In Court And In Life, Maria C. Pena

St. Thomas Law Review

Part I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, …

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Students, Security, And Race, Jason P. Nance Jan 2013

Students, Security, And Race, Jason P. Nance

UF Law Faculty Publications

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides …

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