Constitutional Law Commons^™

Process Without Procedure: National Security Letters And First Amendment Rights, Hannah Bloch-Wehba

Faculty Scholarship

Each year, the FBI uses tens of thousands of NSLs to obtain “transactional records” related to telephone calls, emails, text messages, online forums, and other communicative activity. NSLs are usually accompanied by nondisclosure orders that prevent recipients from speaking about or acknowledging the requests. Although over 100,000 NSLs have been issued since 2001, there have been fewer than 10 known judicial challenges.

I argue that the absence of procedural safeguards within the NSL authority has created a de facto regime of automatic compliance with the requests, endangering First Amendment rights in the process. NSLs are explicitly directed at uncovering the …

Restitution And The Excessive Fines Clause, Kevin Bennardo

Louisiana Law Review

The article offers solutions to further the conversation regarding the U.S. constitution's Eighth Amendment's limits on restitution. Topics discussed include application of Excessive Fines Clause; the case law interpreting the Excessive Fines Clause of the Eighth Amendment; and ways in which Excessive Fines Clause should be applied to restitution in criminal cases.

By The Pricking Of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws From Constitutional Review, Megan Joy Rials

Louisiana Law Review

The article argues how states should not allow philosophical exemptions and should either retain or create religious exemptions that meet certain requirements under the Free Exercise Clause, the Due Process Clause, and the Establishment Clause. It reports the U.S. Supreme Court's jurisprudence regarding parental rights in cases 'Jacobson v. Massachusetts' and 'Zucht v. King.'

October 15, 2016: So, Hallowed Secularism Is Getting Somewhere, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, Hallowed Secularism is Getting Somewhere“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Single-Family Zoning, Intimate Association, And The Right To Choose Household Companions, Rigel C. Oliveri

Florida Law Review

Many local governments use single-family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas, and they have been used to prevent all sorts of groups from living together—from unmarried couples who are raising children to college students. This Article contends that Belle Terre is wholly incompatible with the Court's modern jurisprudence on privacy and the right of intimate association. The case appears to have survived this long because of a …

Big Data Blacklisting, Margaret Hu

Florida Law Review

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Because, The Internet: The Limits Of Online Campaign Finance Disclosure, Vitaliy Kats

Florida Law Review

During the 2011–2012 election cycle, Shaun McCutcheon contributed $33,088 to sixteen different candidates for federal office. McCutcheon’s donations complied with the base limits the Federal Election Commission (FEC) set for contributions to individual candidates.McCutcheon wanted to contribute more but was barred by the FEC’s aggregate limit on contributions.In June of 2012, McCutcheon and the Republication National Committee (RNC) filed a complaint before a three-judge panel of the U.S. District Court for the District of Columbia. McCutcheon and the RNC claimed that the aggregate limits on contributions to candidates and political committees were unconstitutional under the First Amendment.The three-judge panel granted …

Docs V. Glocks: Speech, Guns, Discrimination, And Privacy—Is Anyone Winning?, Marla Spector Bowman

Florida Law Review

Americans discuss some of the most intimate details of their lives within the small confines of their neighborhood doctor's office. Many Americans, however, may be taken aback if their physician asked them whether they owned a firearm during a routine physical examination. Although most Americans might not consider firearms education to be their physician's primary purpose, a significant number of doctors in Florida, and throughout the medical community, consider promoting firearms safety a part of practicing preventative medicine.

When a group of Florida legislators saw this behavior as a threat to the Second Amendment, gun owner access to healthcare, and …

Constitutional Right Of Confrontation Applied To States

The Catholic Lawyer

No abstract provided.

Beware The Friends You Keep And The Places You Sleep: The Fourth Amendments Limited Protection Over Visitors And Their Belongings, Alysha C. Preston

St. John's Law Review

(Excerpt)

This Note concludes that the Arizona Supreme Court correctly applied the possession test and strongly urges the Supreme Court to address the issue and follow in Arizona’s footsteps. The possession test not only provides the best guidance for both officers and courts, but also provides the most precision and clarity. More importantly, this approach aligns with current Supreme Court case law and conforms to established Fourth Amendment principles. Holding otherwise would gravely undermine policy, disregard current precedents, and undervalue the sole purpose for the Fourth Amendment’s existence: to protect one’s reasonable expectation of privacy. Part I examines the scope …

Technical Difficulties: Why A Broader Reading Of Graham And Miller Should Prohibit De Facto Life Without Parole Sentences For Juvenile Offenders, Daniel Jones

St. John's Law Review

(Excerpt)

This Note argues that the spirit of the trilogy prohibits courts from sentencing juvenile offenders, regardless of their crime(s), to de facto life sentences. This Note maintains that the Eighth Amendment of the United States Constitution and the relevant case law render de facto life sentences unconstitutional. Part I examines the history of juvenile sentencing laws and concludes that many of the laws currently in place are based on a misguided fear that juveniles are more culpable than adult offenders. Part I also examines the relevant Supreme Court Eighth Amendment jurisprudence as well as the competing theoretical arguments used …

The Error In Applying The Language Conduit-Agency Theory To Interpreters Under The Confrontation Clause, Gregory J. Klubok

St. John's Law Review

(Excerpt)

Part I of this Note explains the origins of the Confrontation Clause and recent Supreme Court jurisprudence on the topic. Part II of this Note explains the current split of authority among the United States Courts of Appeals on whether interpreters who translate at police interrogations are subject to the Confrontation Clause. Part III of this Note explains why the language conduit-agency theory is inherently incompatible with the Confrontation Clause and why the government should have to call the interpreter who translated a defendant’s statements at a police interrogation to the stand if it wants to introduce the interpreter’s …

October 10, 2016: No, Trump Was Not Advocating Sexual Assault, Bruce Ledewitz

Hallowed Secularism

Blog post, “No, Trump Was Not Advocating Sexual Assault“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Takings And Extortion, Daniel P. Selmi

Florida Law Review

The Supreme Court has repeatedly employed an extortion narrative in deciding when governmental actions imposing exactions on development projects constitute takings under the Fifth Amendment. In that narrative, local officials act in ever-present bad faith by misusing their regulatory powers to coerce concessions by developers seeking land use approvals. While the extortion narrative has received little attention, it operates as an explanatory device for understanding the Court’s takings jurisprudence in the exactions field. The narrative has justified the expansion of exactions takings law beyond real property, substantially altered the deference normally accorded by the Court to local government actions, and …

The Second Amendment Right To Be Negligent, Andrew Jay Mcclurg

Florida Law Review

Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law, the United States has enshrined a de facto Second Amendment right …

Content-Neutral And Content-Based Regulations Of Speech: A Distinction That Is No Longer Worth The Fuss, R. George Wright

Florida Law Review

This Essay establishes that content-based restrictions on speech are no longer uniformly subjected to unequivocally more demanding judicial scrutiny than content-neutral restrictions by examining several recent jurisprudential trends and their effects. The five relevant trends are (1) the compounding complications and failed attempts in seeking to distinguish between content-neutral and content-based regulations of speech in the first place; (2) the crucial judicial option, distinctively available in content-neutral regulation cases, to insist on the realistic availability of ample valued alternative channels through which speakers can continue to convey their message; (3) in partial offset thereof, the rise of the judicial option, …

Chafee On Law And Freedom Of Speech, Roy Lechtreck

The Catholic Lawyer

No abstract provided.

The Church Versus Obscene Literature, Maurice Amen, C.S.C.

The Catholic Lawyer

No abstract provided.

Racially Balanced Schools: Psychological And Legal Aspects, Robert F. Drinan, S.J.

The Catholic Lawyer

No abstract provided.

De Jure Integration In Education, Bernard E. Gegan

The Catholic Lawyer

No abstract provided.

Narcotics Statute Ruled Inapplicable To Religious Use Of Peyote

The Catholic Lawyer

No abstract provided.

Redeeming Social Importance Held Decisive In Determining Question Of Obscenity

The Catholic Lawyer

No abstract provided.

Loyalty Oath Held Unconstitutionally Vague

The Catholic Lawyer

No abstract provided.

Obscenity: Police Enforcement Problems, John J. Sullivan

The Catholic Lawyer

No abstract provided.

Obscenity: Prosecution Problems And Legislative Suggestions, Richard H. Kuh

The Catholic Lawyer

No abstract provided.

Obscenity Control And Minors - The Case For A Separate Standard, Edward T. Fagan

The Catholic Lawyer

No abstract provided.

October 8, 2016: Nihilism Looks Like This, Bruce Ledewitz

Hallowed Secularism

Blog post, “Nihilism Looks Like This“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Open Data, Charles Roman

ConLawNOW

With two recent initiatives, OhioCheckbook.com and DataOhio, Ohio is on the cutting edge of the open data movement, and with the right decisions and policies, it can become one of the leading states in the nation for access to open data, voluntarily and proactively released by the government. It is the future of public records. Rather than merely responding to requests, governments can post information online and citizens can more easily access the data thanks to advances in technology. Technology has changed the way public records are collected, stored, and made available. People no longer have to make requests for …

Adult Patient Compelled To Take Blood Transfusion Contrary To Religious Belief

The Catholic Lawyer

No abstract provided.

Appearance By Both Parties Held Insufficient To Validate Mexican Divorce Decree

The Catholic Lawyer

No abstract provided.