Constitutional Law Commons^™

People V. Cole: Is The Incarceration Of An "Actually Innocent" Person Constitutional?, Aileen R. Kavanagh

Touro Law Review

No abstract provided.

Moving From Carolene To The Commerce Clause: A New Approach To Race For The New American Future, Nareissa L. Smith

West Virginia Law Review

No abstract provided.

Constitutional Law—Fifth Amendment And Takings—Courts And The Judicial Process Will Impede Orderly City Development By Limiting Local Governments’ Use Of Exactions In Development Planning. Koontz V. St. Johns River Water Management District, 133s. Ct. 2586 (2013)., Rebecca L. Matlock

University of Arkansas at Little Rock Law Review

No abstract provided.

The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho

Loyola of Los Angeles Law Review

In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …

Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin

Pepperdine Law Review

The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford

Michigan Law Review

On January 22, 2013, Tarik “Terry” Dehko sat down to pay the bills for his small Michigan grocery store when a federal agent entered his office. The agent told Dehko that the Internal Revenue Service (IRS) had executed a seizure warrant and taken the market’s entire bank account—more than $35,000. When Dehko asked how he could run his business without its bank account, the agent replied, “I don’t care.” The government did not charge Dehko with a crime that day. In fact, Dehko had never been charged with any crime in his life. Instead, the government waited until July 19 …

The Constitutional Duty To Supervise, Gillian E. Metzger

Faculty Scholarship

The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader …

Unfinished Business Of Repealing “Don’T Ask, Don’T Tell”: The Military’S Unconstitutional Ban On Transgender Individuals, Kayla Quam

Utah Law Review

Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse, the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway, Sommers, and Ulane—the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse, discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination.156 As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,” discrimination based on …

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

Supreme Court, Broome County, In Re United Health Services Hospitals, Kristen Kelekian

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Henriquez, Nicholas Melillo

Touro Law Review

No abstract provided.

Appellate Division, Third Department, Encarnacion V. Goord, Kristen Kelekian

Touro Law Review

No abstract provided.

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker

West Virginia Law Review

No abstract provided.

Appellate Division, Second Department, Langan V. St. Vincent's Hospital Of New York, Christin Harris

Touro Law Review

No abstract provided.

Supreme Court, New York County, People V. Vasquez, Jessica Goodwin

Touro Law Review

No abstract provided.

Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People Ex Rel. Furde V. New York City Dep't Of Correction, Adam D'Antonio

Touro Law Review

No abstract provided.

Appellate Division, Third Department, People V. Rivette, Michele Kligman

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, Harner V. County Of Tioga, Gerald C. Waters Jr.

Touro Law Review

No abstract provided.

District Court, Nassau County, People V. Yaghoubi, David Schoenhaar

Touro Law Review

No abstract provided.

Disparity In Police Procedures For Non-English Speaking Dwi Suspects: Constitutional Protections For Non-English Speaking Criminal Defendants Falling Second To Governmental Interests, Daniela Giordano

Touro Law Review

No abstract provided.

Gender Diversity And Same-Sex Marriage, Ian Farrell, Nancy Leong

Sturm College of Law: Faculty Scholarship

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase …

Due Process Rights Before Eu Agencies: The Rights Of Defense, David E. Shipley

Georgia Journal of International & Comparative Law

No abstract provided.

Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman

Florida State University Law Review

No abstract provided.

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker

Journal of the National Association of Administrative Law Judiciary

This article reviews 74 special education cases decided by California ALJs between January 1, 2013 and December 11, 2013. The author concludes that the ALJs provided stingy relief even when students prevailed, there was often unsuccessful litigation on behalf of a student following the termination of a consent decree or court order, many of the cases reflected negative attitudes towards the mothers of the student, and school districts often preferred more restrictive placements than the parent/student. Not surprisingly, students faced very unfavorable outcomes when they were not represented by a lawyer.