Constitutional Law Commons^™

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Life Becoming Hazy: The Withdrawal Of The United States From The Paris Agreement And How The Youth Of America Are Challenging It, Anne Ustynoski

Catholic University Journal of Law and Technology

This Comment covers the ways in which each presidential administration has viewed the United States’ role and responsibilities in combating climate change. It discusses the ways in which the Clean Air Act has evolved and changed, as well as the ways in which the United States has been involved in environmental protection initiatives undertaken by the United Nations. The Comment also examines the ways in which individual states and groups have taken the initiative to combat climate change. Finally, this Comment discusses alternative approaches to combating climate change. For example, it focuses on how youths in America are arguing that …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Divorce, Domicile, And The Constitution, Mark Strasser

Kentucky Law Journal

No abstract provided.

The Founding And The Foundering Of The American Constitution, Robert F. Blomquist

Valparaiso University Law Review

No abstract provided.

"Your Device Is Disabled": How And Why Compulsion Of Biometrics To Unlock Devices Should Be Protected By The Fifth Amendment Privilege, Harrison Metz

Valparaiso University Law Review

No abstract provided.

The Diverging Right(S) To Bear Arms: Private Armament And The Second And Fourteenth Amendments In Historical Context, Alexander Gouzoules

Faculty Publications

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. …

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Extremely Broad Laws, Kiel Brennan-Marquez

Faculty Articles and Papers

Extremely broad laws offend due process. Although the problem has not been lost on courts, their solution to date has been haphazard: casting breadth as a species of uncertainty-ambiguity or vagueness-and repurposing uncertainty-focused doctrine accordingly. The trouble is, breadth and uncertainty are not the same. They have different analytic features and raise distinct concerns, making the tools designed to resolve uncertainty ill-suited to reining in breadth. Vague and ambiguous laws deprive people of notice about what the law requires. They evoke the Star Chamber and Kafka stories-the dread of inhabiting an incomprehensible legal order. With broad laws, the issue is …

Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Religious organizations enjoy many of the same benefits that other non-profit organizations do. Churches, temples and mosques, for example, generally are exempt from local real estate taxes. Economically speaking, a tax exemption has the same effect as a subsidy; freedom from tax liability means that the organization can devote its financial resources to other activities. But where an exemption afforded to a religious employee is broader than the equivalent exemption available to a secular employee, a significant Establishment Clause concern is raised. The parsonage exemption of Internal Revenue Code Section 107 presents such an issue: ministers are permitted to exclude …

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …

The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin

Indiana Law Journal

In this Article, I will talk about what I expect is going to happen in the next five to ten years. Unlike eclipses, however, one can’t be entirely sure of the future. Politics is not astronomy, and human affairs do not operate like clockwork. Moreover, we can’t assume that everything is already foreordained: that if people simply sit on their hands and do nothing, the cycles I describe in this lecture will take care of themselves. Quite the contrary. I am telling a story about what happens in the long run, but it is not a deterministic story. The actions …

Rhode Island's School Funding Challenges In Historical Context, Daniel W. Morton-Bentley

Roger Williams University Law Review

No abstract provided.

The Confrontation Right, Richard D. Friedman

Book Chapters

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

UF Law Faculty Publications

The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other …

Originalist Reflections On Constitutional Freedom Of Speech, Christopher Wolfe

SMU Law Review

In this brief Article, I would like to offer some reflections on the First Amendment freedom of speech and press guarantee from an originalist perspective. This area seems to me to be one that is particularly difficult for originalists, and I think that there is insufficient acknowledgment of that fact among them.

Domestic Constitutional Violence, F. E. Guerra-Pujol

University of Arkansas at Little Rock Law Review

No abstract provided.

Cooper V. Aaron: The First In The Trifecta Of Modern American Federalism Cases, Ronald L. Nelson

University of Arkansas at Little Rock Law Review

No abstract provided.

Cooper Supremacy, Rebecca E. Zietlow

University of Arkansas at Little Rock Law Review

No abstract provided.

Cooper V. Aaron: The First In The Trifecta Of Modern American Federalism Cases, Ronald L. Nelson

University of Arkansas at Little Rock Law Review

No abstract provided.

Domestic Constitutional Violence, F. E. Guerra-Pujol

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Supremacy In A Federalism Context Through The Lens Of Cooper, Joel K. Goldstein

University of Arkansas at Little Rock Law Review

No abstract provided.

Cooper Supremacy, Rebecca E. Zietlow

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Supremacy In A Federalism Context Through The Lens Of Cooper, Joel K. Goldstein

University of Arkansas at Little Rock Law Review

No abstract provided.

The “Uncanny Valley” And The Verisimilitude Of Sexual Offenders–Part I: An “Ethorobotic” Perspective, Michael T. Flannery

Law Faculty Scholarship

No abstract provided.

First Principles For Forum Provisions, Daniel B. Listwa, Bradley J. Polivka

Cardozo Law Review de•novo

In this Essay, the authors argue that the Delaware Chancery Court's opinion in Sciabacucchi v. Salzberg, which appeals to territoriality as a decisive “first principle,” is deeply misguided. The notion that each state’s legislative jurisdiction is bounded by its territorial limits is a formalist and arbitrary notion that has been broadly rejected by various jurisdictions, including Delaware. Moreover, an opinion truly grounded in “first principles” would take comity—the basic framework for choice of law in the early Republic—as its lodestar, necessitating a functionally and strategically sensitive approach to determining the validity of the federal forum provisions. In this case, comity …

A Blind Spot In Miranda Rights: Juveniles' Lack Of Understanding Regarding Miranda Language, Wadad Barakat

St. Thomas Law Review

This Comment addresses the negative implications of juveniles who waive their Miranda rights due to lack of knowledge, fear, and lack of cognitive capabilities." First, this Comment will provide insight regarding the Fifth Amendment, the history of Miranda, and key cases that lead to the reform of Miranda. Second, this Comment will discuss juveniles' perspective of the Miranda language along with the police's perspective. In particular, it will emphasize the complexity of the language as it stands today and how juveniles' cognitive abilities are insufficiently developed to understand it. Lastly, this Comment will propose guidelines to prevent minors from giving …

The Extraterritorial Reach Of Tribal Court Criminal Jurisdiction, Grant Christensen

UC Law Constitutional Quarterly

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct …

"Scientific Inference" Vs. "Legal Reasoning"? -Not So Fast!, Susan Haack

Articles

To understand why the interactions of science with the legal system can be so problematic, it's not enough to gesture vaguely towards a supposed contrast between scientific and legal "modes of thinking"; we need to look, instead, to the consequences of the different purposes of science and the law, the different constraints under which they pursue those purposes, and the different cultures of the two enterprises. From this perspective we can see why the law sometimes asks more of science than science can give, and sometimes gets less from science than science could give; and also why a simple dichotomy …

Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall

Faculty Publications By Year

For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States …