Constitutional Law Commons^™

Tunnel Vision: Causes, Effects, And Mitigation Strategies, Brian Reichart

Hofstra Law Review

The author discusses his experience concerning a case of actual innocence involving murder defendant Patricia "Patty" Prewitt with little chance of judicial remedy because of what is referred to as tunnel vision via confirmation bias on the part of legal authorities concerning the criminal investigation and subsequent trial of Prewitt, particularly a single-minded theory of culpability based on the gathered evidence. The article also discusses possible strategies of tunnel vision mitigation.

Takings Liability And Coastal Management In Rhode Island, Manta Dircks

Sea Grant Law Fellow Publications

No abstract provided.

Contemporary Perspectives On Wrongful Conviction: An Introduction To The 2016 Innocence Network Conference, San Antonio, Texas, Gwen Jordan, Aliza B. Kaplan, Valena Beety, Kieth A. Findley

Hofstra Law Review

An introduction is presented that discusses various articles in the journal on the concept of wrongful conviction that were featured at the Innocence Network Conference in San Antonio, Texas, in April 2016.

The Worst Of The Worst: Heinous Crimes And Erroneous Evidence, Scott Phillips, Jamie Richardson

Hofstra Law Review

The article discusses research conducted by scholar Samuel Gross and others on the question of whether the seriousness of a crime more often leads to wrongful convictions in the U.S. justice system, utilizing data from the U.S. National Registry of Exonerations (NRE) from 1989 to 2014. The article discusses various aspects of serious crimes, aggressive interrogation, and false confession.

Deported By Marriage: Americans Forced To Choose Between Love And Country, Beth Caldwell

Brooklyn Law Review

As the fiftieth anniversary of Loving v. Virginia approaches, de jure prohibitions against interracial marriages are history. However, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that a spouse’s deportation does not implicate the rights of American citizens, and the Constitution has long been held inapplicable in protecting the substantive due process rights of noncitizens facing deportation. Given the spike in deportations over the past decade, hundreds …

Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an …

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …

Anti-Disruption Statutory Construction, Jonathan H. Adler

Faculty Publications

The claim of this brief Essay is that Chief Justice [John Roberts]’s approach to statutory interpretation exhibits a “Burkean minimalism” that seeks to reduce [the] seismic effect of the Court’s decisions. In particular, the Chief Justice is drawn toward statutory interpretations that avoid constitutional questions and preserve legislative enactments against constitutional challenge. Avoiding disruption is not an unyielding imperative, as the Chief Justice is sometimes willing to join broad judgments with significant effects. Avoiding disruption does, however, appear to be among the Chief Justice’s preferences when deciding cases, and when interpreting federal statutes in particular.

This abstract has been adapted …

The Amicus Machine, Allison Orr Larsen, Neal Devins

Faculty Publications

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick

Faculty Publications

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …

The Roberts Court And The New Textualism, Anton Metlitsky

Cardozo Law Review

The article explores the Roberts Court's approach to statutory interpretation, focusing on its adherence to the "new textualism," a methodology emphasizing the plain meaning of statutory text. While recent cases like King v. Burwell, Bond v. United States, and Yates v. United States appear to prioritize statutory purpose over textual meaning, the Court's reasoning reinforces its commitment to textualism by framing decisions within textualist methodology, even when outcomes seem to depart from strict textual interpretation.

John Roberts And Constitutional Law, Brianne J. Gorod

Cardozo Law Review

The article examines Chief Justice John Roberts's judicial approach during his first decade on the Supreme Court, highlighting his generally conservative jurisprudence while noting instances where institutional concerns about the Court's legitimacy led him to prioritize law over ideology. Roberts's record reflects a tension between his conservative ideological convictions and his commitment to the Court's institutional reputation.

Where Techs Rush In, Courts Should Fear To Tread: How Courts Should Respond To The Changing Economics Of Today, Melanie Defiore

Cardozo Law Review

No abstract provided.

The Insular Citizens: America's Lost Electorate V. Stare Decisis, Nathan Muchnick

Cardozo Law Review

The note examines the historical and ongoing implications of the Insular Cases, which established a form of colonial governance over U.S. territories like Puerto Rico, denying residents full citizenship rights. It argues that these cases, rooted in outdated political and racial biases, contradict modern democratic principles and urges the Supreme Court to overturn this precedent to enfranchise Puerto Rican citizens.

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

November 30, 2016: More Paranoia: "Millions" Of Illegal Voters, Bruce Ledewitz

Hallowed Secularism

Blog post, “More Paranoia: "millions" of illegal voters“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Why Judicial Deference To Administrative Fact-Finding Is Unconstitutional, John Gibbons

BYU Law Review

No abstract provided.

The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and …

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

November 27, 2016: Perfect Paranoia—-Jill Stein’S Recount, Bruce Ledewitz

Hallowed Secularism

Blog post, “Perfect Paranoia—-Jill Stein’s Recount“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Brief Of Appellant, Abdullah Malik Joppy A/K/A Richard Joppy V. State Of Maryland, No. 533, Paul Dewolfe, Renée M. Hutchins, Peter Honnef

Court Briefs

No abstract provided.

Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis

Indiana Journal of Constitutional Design

Is Ecuador’s adoption of Article 422 in the 2008 Constitution properly viewed as a “re-statification”1 of Investor State Dispute Settlement (ISDS)? And, since its implementation, has the constitutional article been effective in institutionally insulating Ecuador from the jurisdictional reach of international ISDS? This paper answers both questions in the negative—but qualifies such an outlook by balancing the drawbacks of Article 422 against its successes. Article 422’s provisions, strident in its attempt to create an alternative development vision, did not achieve all that the Constitution’s drafters had hoped. Nevertheless, in its limited effect of detaching Ecuador from certain ISDS fora, it …

November 19, 2016: The Hypocrisy Of The Congressional Republican Party, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Hypocrisy of the Congressional Republican Party“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Brief Of Appellant, Davon Jones V. State Of Maryland, No. 547, Paul Dewolfe, Renée M. Hutchins, Matthew T. Healy

Court Briefs

No abstract provided.

Further Punishing The Wrongfully Accused: Manuel V. City Of Joliet, The Fourth Amendment, And Malicious Prosecution, James R. Holley

Duke Journal of Constitutional Law & Public Policy Sidebar

Manuel v. City of Joliet is before the Supreme Court to determine whether detention before trial without probable cause is a violation of the Fourth Amendment, or whether it is merely a violation of the Due Process Clause. Every circuit except the Seventh Circuit treats this type of detention as being a violation of the Fourth Amendment; only the Seventh Circuit considers this question under the Due Process Clause. This commentary argues that the Supreme Court should look to its precedent, which clearly treats pretrial detention without probable cause as being a Fourth Amendment issue, and reverse the Seventh Circuit. …

November 16, 2016: The End Of The Spritual Thirst For Democracy, Bruce Ledewitz

Hallowed Secularism

Blog post, “The End of the Spritual Thirst for Democracy“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Legal Scholarship Highlight: The Amicus Machine, Allison Orr Larsen, Neal Devins

Popular Media

No abstract provided.

November 13, 2016: It Was Jobs, Heroin And Disconnection—Not Racism, Bruce Ledewitz

Hallowed Secularism

Blog post, “It Was Jobs, Heroin and Disconnection—Not Racism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.