Constitutional Law Commons^™

General Presentation Of The Legal System, State Organization And Constitution Of The Republic Of Uzbekistan, A. Egamberdiev

Review of law sciences

No abstract provided.

Unitary Theory, Consolidation Of Presidential Authority, And The Breakdown Of Constitutional Principles In Immigration Law, Grant Wilson

Immigration and Human Rights Law Review

This paper will argue that beginning with President Reagan the adoption of unitary theory as a central tenet in presidential administrations created a now ongoing consolidation of executive regulatory authority. This consolidation of power has considerably accelerated over the course of the last four decades. As Courts continue to defer to the executive in decisions made within the broad grants of power delegated by Congress, the relevance of the legislative body dwindles. The checks on executive assumption of power have largely been removed. The wall between the executive and the administrative have crumbled, and what were once considered unofficially separate …

Individualized Sentencing, William W. Berry

Washington and Lee Law Review

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Washington and Lee Law Review

This Response to Mary Nobles Hancock's Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.

Inappropriate For Establishment Clause Scrutiny: Reflections On Mary Nobles Hancock’S, God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Samuel W. Calhoun

Washington and Lee Law Review

This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly. The author's basic position is that the Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended.

God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Mary Nobles Hancock

Washington and Lee Law Review

This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local …

Criminally Homeless? The Eighth Amendment Prohibition Against Penalizing Status, Tim Donaldson

Concordia Law Review

The article examines the extent to which the Cruel and Unusual Punishments Clause of the Eighth Amendment protects the ability of homeless persons to subsist in public places. It reviews Martin v. City of Boise and how the Eighth Amendment has been applied to test the constitutionality of local laws targeted at the homeless. It discusses whether homelessness constitutes a recognizable status protected by the Eighth Amendment, and, if so, whether protection is extended to unavoidable conduct resulting from that status.

May 19, 2019: The Universe Doesn’T Care About Your Purpose, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Universe Doesn’t Care About Your Purpose“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Scientific Evidence Admissibility: Improving Judicial Proceedings To Decrease Erroneous Outcomes, Leica Kwong

Themis: Research Journal of Justice Studies and Forensic Science

In the United States, Federal Rules of Evidence 702, the Frye and Daubert standards govern the admissibility of scientific evidence in the courtroom. Some states adopted Frye while others adopted Daubert, causing varying judicial outcomes. The verdicts in some cases may be erroneous due to a nationally used standard. Frye has broad criteria of requiring scientific evidence to be generally accepted. While Daubert contains more requirements for the evidence to be admissible, such as peer review, publication, and scientific principles. Daubert, alongside FRE 702, provides a thorough guideline for trial judges who have the gatekeeping role to decide admissibility aiming …

Physical Match: Uniqueness Of Torn Paper, Marilyn Aguilar

Themis: Research Journal of Justice Studies and Forensic Science

In the forensic science field, it is generally accepted that all tears and fractures are unique; however, there is limited scientific evidence to support this. This study tests the claim that all tears are unique, focusing on paper. One-hundred Office Depot brand 3” x 5” blank, white index cards were torn in half by hand. Six halves were randomly removed; the remaining 94 halves were mixed and then matched by a novice using end-match analysis. The removal of the 6 random halves left 44 matching pairs. Of the remaining halves, all 44 pairs were correctly matched. The results show that …

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

No abstract provided.

Justifying Justice: Six Factors Of Wrongful Convictions And Their Solutions, Colby Duncan

Themis: Research Journal of Justice Studies and Forensic Science

There have been over 300 post-conviction DNA exonerations in the history of the United States. While this number may initially seem significant, there is still an unfathomable population of wrongfully convicted prisoners who have yet to be considered for retrials. Unaddressed wrongful conviction cases highlight the unacceptable weaknesses in the U.S. justice system, weaknesses that include poor investigative tactics and the acceptance or allowance of inaccurate and unreliable evidence. This paper will dutifully analyze the causes that lead to wrongful convictions and amply discuss potential solutions, all of which includes eyewitness misidentification, improper forensics, false confessions, informants, government misconduct, and …

May 15, 2019: What Impeachment And Court-Packing Have In Common, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Impeachment and Court-packing Have in Common“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Executive Privilege And Congressional Oversight, Katherine A. Shaw

Testimony

Professor Kate Shaw testified at a House Judiciary Committee hearing on May 15 titled "Executive Privilege and Congressional Oversight."

She told the House Judiciary Committee, "My view as a scholar and a former White House lawyer, is that blanket invocations of executive privilege of the sort the White House has made here are without substantial support in either case law or executive branch practice."

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.

Servitude And Captivity In The Common Law Of Master-Servant: Judicial Interpretations Of The Thirteenth Amendment’S Labor Vision Immediately After Its Enactment, Lea Vandervelde

William & Mary Bill of Rights Journal

This Article first takes a closer look at Blackstone’s chapter on master and servant. Second, it examines the anti-subordination agenda of the Reconstruction Congress, which abolished involuntary servitude and engaged in structuring a free labor system—a republican system of labor—to replace the slave labor system and to bring the freedmen into parity with their former masters. Third, this Article looks at how the courts interpreted the Thirteenth Amendment’s scope in the years immediately after its enactment. This Part demonstrates that the federal courts effectively closed off the path to develop the Thirteenth Amendment as an economic right by limiting the …

The Popular Constitutional Canon, Tom Donnelly

William & Mary Bill of Rights Journal

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz

William & Mary Bill of Rights Journal

Scholars have written volumes about the dramatic constitutional changes that occurred in the United States in the decades after World War II. Several leading scholarly accounts adopt an internal perspective, focusing primarily on domestic factors that drove constitutional change. Other scholars adopt a more transnational perspective, linking domestic constitutional change in the United States to Cold War politics, or to the rise of totalitarianism. This Article builds on the work of scholars like Mary Dudziak and Richard Primus who have emphasized the transnational factors that contributed to constitutional change in the United States. However, our account differs from both Dudziak …

In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli

William & Mary Bill of Rights Journal

No abstract provided.