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Articles 1 - 30 of 279
Full-Text Articles in Supreme Court of the United States
Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.
Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.
Touro Law Review
In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.
On Guido Calabresi, Roger K. Newman
On Guido Calabresi, Roger K. Newman
Touro Law Review
Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …
On Becoming And Being A Criminal Defense Attorney, Steven B. Duke
On Becoming And Being A Criminal Defense Attorney, Steven B. Duke
Touro Law Review
Steven B. Duke grew up in a tiny farming community in Arizona. In college, he experienced injustice during an encounter with the police and decided to attend law school. As a result of his success at the University of Arizona Law School, Duke was offered a clerkship with Justice William O. Douglas for the 1959-60 Supreme Court term. As Duke describes in this article, working for Justice Douglas was a rewarding and demanding experience. Douglas, probably the most liberal Justice ever to serve on the Supreme Court, had a dazzling intellect and wrote many books on all manner of subjects. …
Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro
Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro
Touro Law Review
Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …
Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson
Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson
Touro Law Review
In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. …
School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil
Touro Law Review
The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …
Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff
Touro Law Review
This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …
The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis
The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis
Touro Law Review
In 2015, the Supreme Court in Kingsley v. Hendrickson held that a pretrial detainee claiming excessive force on the part of the state must only show that the force used was objectively unreasonable. Prior to the adoption of the purely objective standard, many courts around the country were analyzing such cases through a subjective standard to determine whether the officers subjectively knew that the force used against a pretrial detainee was unreasonable. The absence of this objective standard essentially allowed state officials to use excessive force against pretrial detainees without violating an individual’s Constitutional rights. The Supreme Court reasoned that …
Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen
Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen
Touro Law Review
No abstract provided.
Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.
Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.
Touro Law Review
The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …
The Danger Of Silence: The Negative Effect Of Supreme Court Hesitance To Establish A Bright-Line Rule For Determining Patent Subject Matter Eligibility, Amber N. Roibu
Touro Law Review
Ambiguity surrounding the interpretation of 35 U.S.C. § 101 and the ultimate application of the Alice/Mayo standard for determining patent subject matter eligibility has long plagued the courts, practitioners, and USPTO examiners alike. Maintaining a standard that leads to sheer confusion and, as a result, inconsistent rulings severely muddles the ultimate goal of patent law, to promote innovation. The Supreme Court has been presented with ample opportunities to address these issues, with the Solicitor General consistently recommending that it hear cases that deal with patent-eligibility debates. Nonetheless, the Supreme Court's continued hesitancy to grant certiorari on these cases only further …
Lost In The Thicket, Brad Snyder
Lost In The Thicket, Brad Snyder
Touro Law Review
As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.
Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron
Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron
Touro Law Review
No abstract provided.
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
Touro Law Review
This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner
Touro Law Review
This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …
Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff
Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff
Touro Law Review
The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.
Felix Frankfurter, Collector Of People, John Q. Barrett
Felix Frankfurter, Collector Of People, John Q. Barrett
Touro Law Review
Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …
The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein
The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein
Touro Law Review
Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …
Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk
Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk
Touro Law Review
This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to accommodate within the law diverse cultures and values; just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic …
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi
Touro Law Review
The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …
The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth
The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth
Touro Law Review
This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …
Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi
Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi
Touro Law Review
After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …
Multiple Choice: How Instant Runoff Voting Improves Redistricting Under The Voting Rights Act, Aviel Menter, C.D. Alexander Evans
Multiple Choice: How Instant Runoff Voting Improves Redistricting Under The Voting Rights Act, Aviel Menter, C.D. Alexander Evans
Touro Law Review
As currently interpreted, Section 2 of the Voting Rights Act (“VRA”) can be a double-edged sword for minority representation. Although it gives protected minority groups their own majority/minority districts, this can dilute minority influence in other districts. Recently, however, many jurisdictions have begun to adopt Instant Runoff Voting (“IRV”), a ranked-choice voting system where voters rank multiple candidates in order of preference. By letting voters express support for multiple candidates, IRV provides useful information about the behavior of minority groups that courts can use when enforcing the VRA. Specifically, ranked-choice voting systems can better show when a winning candidate supported …
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Touro Law Review
Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
Touro Law Review
Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Touro Law Review
We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …
You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis
You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis
Touro Law Review
The right to remain silent has long been recognized by the Supreme Court as requiring a high degree of protection. Since Miranda v. Arizona was decided in 1966, procedural safeguards have been put in place to inform individuals of this right upon arrest. Yet, a gray area exists when it comes to the use of an individual's silence post-arrest. It may surprise some that a point in time exists when an individual has not yet been read their Miranda rights post-arrest. Several circuit courts have taken the position that any silence that follows arrest but precedes the reading of Miranda …
Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais
Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais
Touro Law Review
Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …
Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel
Once Mentally Ill, Always A Danger? Lifetime Bans On Gun Ownership Under Fire Following Involuntary Commitment, Amanda Pendel
Touro Law Review
18 U.S.C. § 922(g)(4) imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing, or possessing a firearm, regardless of an extended passage of time, or a finding that the individual is unlikely to pose a danger to themselves or the public. Three circuits have created a split concerning the constitutionality of this statute. The Third Circuit held in Beers v. Attorney General United States that those involuntarily committed were outside of the scope of the Second Amendment; therefore, the § 922(g)(4)’s categorical ban is constitutional. Next, the Ninth Circuit in Mai v. …
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
Touro Law Review
There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …