Constitutional Law Commons^™

The Jurisdiction Of The Irish Courts In The Protection Of The Constitutional Rights Of A Person Accused Of A Crime., Adrian Berski

Reports

Studying the Irish Constitutional Law, requires the understanding of how the Irish Political System was evolved. Montesquieu's tripartite system, adopted by the Republic of Ireland is the judiciary[1] has a particular place in the Irish Constitution in articles 34 - 37[2].

The main purpose of this essay is to analyse the balance between the jurisdiction of the Irish Courts in the protection of the constitutional rights of a person accused of a crime and the functioning of the criminal justice system in protecting Society`s general interest. The first section presents a brief summary of the courts functions …

Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew

Journal of Legislation

No abstract provided.

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna

Court Briefs

No. 15-14889
Edward Lewis Tobinick v. Steven Novella

Appeal from the United States Distric Court for the Southern District of Florida, Case No.: 9:14-cv-80781-RLR (Hon. Robin L. Rosenber)
[Including the] Motion for Leave to File Brief of Amici Curiae Intellectual Property Law Professors, Nov. 30, 2015.

From the Summary of Argument

The District Court correctly determined that the challenged speech of Dr. Steven Novella was not commercial speech for purposes of applying the Lanham Act. Appellant’s argument to the contrary conflates “seeking profit” with “commercial speech.”

If You Fly A Drone, So Can Police, Stephen Henderson

Other Faculty Publications

Written for Slate's Future Tense.According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...

May 23, 2016: The Shining Hour Of Conservative Columnists, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Shining Hour of Conservative Columnists“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 30, 2016: Anti-Zionism Or Anti-Semitism?, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Anti-Zionism or Anti-Semitism?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Better Not Call Saul: The Impact Of Criminal Attorneys On Their Clients' Sixth Amendment Right To Effective Assistance Of Counsel, Veronica J. Finkelstein

University of Cincinnati Law Review

No abstract provided.

May 17, 2016: How Can There Be A Compromise?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How Can There Be a Compromise?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Going To Hell In A Hhs Notice: The Contraceptive Mandate's Next Impermissible Burden On Religious Freedom, Trey O'Callaghan

Duke Journal of Constitutional Law & Public Policy Sidebar

The Affordable Care Act’s requirement that eligible religious organizations submit a notice objecting to providing their employees contraceptive coverage if they religiously object to contraception or abortifacients is as simple as filing a piece of paper. But to a collection of Catholic petitioners, complying with this requirement gives rise to “scandal” and causes them to “materially cooperate” with sin. Filing a piece of paper may seem far outside any exercise of religion, but these groups sincerely believe that the one page notice burdens their religious beliefs.

Zubik v. Burwell, like Burwell v. Hobby Lobby Stores, presents a conflict between …

Asking The Right Federal Questions: Merrill Lynch V. Manning And The Exclusive Jurisdiction Provisions Of The Securities Exchange Act, Seth Taylor

Duke Journal of Constitutional Law & Public Policy Sidebar

Suppose you run a small corporation in the business of auctioneering stamps, coins, and other collectibles. Sensing that your corporation’s financial prospects are on the decline, large financial institutions drive the price of the company’s stock down. Your shareholders sue in state court alleging a breach of state law in manipulating stock prices while also referencing breaches of federal securities law.

Can the defendant financial institutions remove the case to federal court? This question is set to be answered by the Supreme Court in Manning v. Merrill Lynch, which deals specifically with whether section 27 of the Securities Exchange …

Ocasio V. United States: The Scope Of A Conspiracy To Commit Hobbs Act Extortion, Benjamin Ludewig

Duke Journal of Constitutional Law & Public Policy Sidebar

Ocasio v. United States presents the question of whether a conviction under the general federal conspiracy statute may be based on Hobbs Act extortion when a public official defendant has formed an agreement to obtain property from someone within the conspiracy. There is currently a circuit split on the question presented in Ocasio v. United States, which the Supreme Court will address. This commentary argues that the Court should allow a conviction under the general federal conspiracy statute to be based on Hobbs Act extortion when the property is obtained from someone within the conspiracy. This holding is consistent …

Utah V. Strieff And The Future Of The Exceptions To The Exclusionary Rule, Zack Gong

Duke Journal of Constitutional Law & Public Policy Sidebar

In the recent case State v. Strieff, the Supreme Court of Utah held that police’s discovery of a lawful outstanding warrant during an unlawful investigatory stop cannot save the evidence obtained during that arrest from suppression under the attenuation doctrine. To reach that decision, the court reasoned that the inevitable discovery doctrine, instead of the attenuation doctrine, is appropriate for this situation. However, the court failed to address whether the inevitable discovery doctrine can ultimately save the evidence from suppression.

The theoretical foundation of how the Fourth Amendment guaranty gives rise to the exclusionary rule has never been steadfast; …

Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary discusses Hurst v. Florida, a case in which the Supreme court will review Florida's death sentencing scheme to determine whether it violates the Sixth of Eighth Amendments. The author argues that Florida's capital sentencing framework violates the Sixth Amendment. A jury, rather than a judge, better reflects society's moral views, which are critical to weigh when deciding whether to impose the death penalty.

Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Friedrichs v. California Teachers Association, public-sector unions face a constitutional challenge that could lead to their demise. In California, all public school employees are represented by a union--whether or not they are union members--and are required to pay an agency fee. This requirement seems to run contrary to the First Amendment, which generally prohibits the government from compelling citizens to support the speech and expressive activities of a private organization. This commentary argues that the Court should not overrule its decision in Abood v. Detroit Board of Education and uphold the validity of agency-shop agreements.

Some Thoughts On The Study Of Judicial Behavior, Lee Epstein

William & Mary Law Review

Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the “law,” but were also motivated by their own ideological preferences.

With the hindsight of nearly eighty years, we know that Pritchett’s seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by economists, …

Implementing Enumeration, Andrew Coan

William & Mary Law Review

The enumeration of legislative powers in Article I of the U.S. Constitution implies that those powers must have limits. This familiar “enumeration principle” has deep roots in American constitutional history and has played a central role in recent federalism decisions of the U.S. Supreme Court. Courts and commentators, however, have seldom rigorously considered what follows from embracing it. The answer is by no means straightforward. The enumeration principle tells us that federal power must be subject to some limit, but it does not tell us what that limit should be. Nor does it tell us how the Constitution’s commitment to …

A Problem Of Standards?: Another Perspective On Secret Law, Jonathan Hafetz

William & Mary Law Review

This Article provides a new perspective on the growth of secret law in the United States. It is widely assumed that the U.S. government’s exercise of national security powers suffers from excessive secrecy. Although secrecy presents significant challenges, it does not alone explain the lack of clarity surrounding the government’s legal justifications for using military force, conducting surveillance, or exercising other national security powers. The Article argues that what is often labeled “secret law” may also be understood as a consequence of how legal standards are used in this context.

The Article draws on the larger rules versus standards literature …

Tying The Knot With A Surname? The Constitutionality Of Japan's Law Requiring A Same Marital Name, Koji Higashikawa

ConLawNOW

The Japanese Supreme Court issued a decision denying married women the right to retain their separate maiden name legally after marriage. It upheld the constitutionality of an old law requiring both marital partners to adopt the same surname. This essay by a Japanese scholar provides insight and explanation into the Supreme Court’s decision.

May 10, 2016: The Beginning Of The End Of Religion As A Political Force, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Beginning of the End of Religion as a Political Force“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Is Modern Day Slavery A Private Act Or A Public System Of Oppression?, Maria L. Ontiveros

Seattle University Law Review

The government focuses on trafficking as the definitive form of modern day slavery. In doing so, it portrays modern day slavery as a private act with identifiable wrongdoers and views the Thirteenth Amendment through the lens of forced labor. Workers’ advocates, on the other hand, portray modern day slavery as a systemic form of oppression, supported by governmental policies on immigration and occupational exclusions. These groups focus on the Thirteenth Amendment through the lens of class. A historical analysis suggests that the proper approach views the Thirteenth Amendment through the lens of both class and labor.