Constitutional Law Commons^™

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the …

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

Is Full Marriage Equality For Same-Sex Couples Next? The Immediate And Future Impact Of The Supreme Court's Decisions In United States V. Windsor, Catherine Jean Archibald

Valparaiso University Law Review

No abstract provided.

Values At Work: How Sex Discrimination Law Moved From Joke To Juggernaut In 50 Years, Kimberly A. Yuracko

Valparaiso University Law Review

No abstract provided.

United States V. Alvarez: Defaming The Medal Of Honor Through Lies, Deceit, And The First Amendment, Christine Mcwilliams

Valparaiso University Law Review

No abstract provided.

Special Administrative Measures And The War On Terror: When Do Extreme Pretrial Detention Measures Offend The Constitution?, Andrew Dalack

Michigan Journal of Race and Law

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Doe V. Wilmington Housing Authority: The Common Area Caveat As A Paradigmatic Balance Between Tenant Safety And Second Amendment Rights, Iyen Acosta

Catholic University Law Review

No abstract provided.

Oklahoma's Indigency Determination Scheme: A Call For Uniformity, Carrie Savage Phillips

Oklahoma Law Review

No abstract provided.

Foreign Law In American Courts, Eugene Volokh

Oklahoma Law Review

No abstract provided.

Picking Up Where Katcoff Left Off: Developing A Framework For A Constitutional Military Chaplaincy, Malcolm H. Wilkerson

Oklahoma Law Review

Under existing precedent, portions of the military chaplaincy program are unconstitutional. Although presenting at least the appearance of the “establishment” of religion, the military chaplaincy program has never been successfully challenged on constitutional grounds—despite its history of more than two centuries. The only court that has directly confronted the issue upheld the military chaplaincy based on what appears to be a counter-intuitive application of the Free Exercise Clause. Namely, the military chaplaincy program ensures the free exercise rights of service members who, because of their military service, would otherwise be deprived of access to religious services. And indeed, when a …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Faculty Articles and Papers

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …

Due Process Disaggregation, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the …

Wireless Internet Searches: How The Fourth Amendment Applies To Police Searches Of Information Accessed Over A Wireless Internet Connection, Taylor Hobin

UC Law Constitutional Quarterly

In a series of rulings by the U.S. District Court for the District of Oregon and the Ninth Circuit Court of Appeals, it is suggested that a person may not have an expectation of privacy in some computer files that are accessible through a secured, or unsecured, wireless network. This Note uses the reasoning in these court decisions to create a framework for analyzing the Fourth Amendment's application to secured and unsecured wireless Internet networks.

This Note concludes that the trespass analysis derived from United States v. Jones would establish a more predictable and functional standard when analyzing a search …

Criminalizing The Armchair Terrorist: Entrapment And The Domestic Terrorism Prosecution, Dejan M. Gantar

UC Law Constitutional Quarterly

A variety of factors plague a defendant's rights in a domestic terrorism trial. This Note focuses on contemporary domestic terrorism prosecutions in which the defendants raise an entrapment defense. It suggests that federal courts apply a lower standard for prosecutors in proving predisposition by allowing nothing more than evidence of a defendant's religious or political beliefs, or general "impulse to lash out," to demonstrate predisposition. This Note further argues that this evidentiary laxity establishes a double standard in terrorism cases, and also manifests First Amendment problems.

The crux of this Note is that federal courts should refine the entrapment doctrine …