Constitutional Law Commons^™

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 …

Will The South Rise Again And, If So, In What Form?: Lessons From Latcrit About Resisting The Fear Of Cultural Understanding, Angela Mae Kupenda

Journal Articles

Through lessons learned from LatCrit 2013, this essay is hoping to evoke the missing sentiment of understanding and equality by signifying that the south that will rise again will be a south that is transformed, as Dr. Martin Luther King said “into an oasis of freedom and justice,” by moving out of its fears of understanding and moving to a far greater level of cross-cultural understanding.

Book Review, Justin R. Huckaby

Journal Articles

In The Tragedy of Religious Freedom, Marc 0. DeGirolami explains the delicate nuances of the legal theory of religious liberty and the risks that arise from its application in the sensitive area of the First Amendment's religion clauses. There are several different theoretical approaches to cases involving the religion clauses. DeGirolami endorses the approach he describes as the method of tragedy and history. This method approaches the pluralistic nature of religion with the understanding that there are many different values at play in cases involving religion and that sacrifices will be made in all cases. Courts should also consider the …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

UF Law Faculty Publications

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national …

Liberal Originalism: The Declaration Of Independence And Constitutional Interpretation - Symposium: History And Meaning Of The Constitution, Scott D. Gerber

Cleveland State Law Review

In my work I have labeled the dominant iterations of originalism “conservative originalism.” It is an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are …

History In Law, Mythmaking, And Constitutional Legitimacy - Symposium: History And Meaning Of The Constitution, Patrick J. Charles

Cleveland State Law Review

What truly separates an historical inquiry, however, from an originalist inquiry is the degree by which myth consumes fact. Certainly, regardless of whether one is performing an historical or originalist inquiry, the methodological process takes part in generating myth. In terms of where the respective inquiries are to be placed on the spectrum of constitutional mythmaking, however, the standard historical inquiry is far less likely to engage in the process than its originalist counterpart. This is mainly because originalism is not so much about reasoning from known historical truths, but instead about recreating a hypothetical expected legal application of how …

Constitutional Law—Unauthorized Practice Of Law: Driving Legal Business Without A License, Legalzoom, Inc., And Campbell V. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21., Pierce G. Hunter

University of Arkansas at Little Rock Law Review

No abstract provided.

Marriage Equality, United States V. Windsor, And The Crisis In Equal Protection Jurisprudence, Susannah W. Pollvogt

Hofstra Law Review

The article discusses equal protection jurisprudence in America in relation to the U.S. Supreme Court's (USSC's) ruling in the 2013 marriage equality case United States v. Windsor. The views of USSC Justice Anthony Kennedy are mentioned, along with an unconstitutional animus legal doctrine and a heightened rational basis standard of review. The U.S. Constitution's Equal Protection Clause is addressed in relation to the nation's discrimination laws.

Anti-Anti-Evasion In Constitutional Law, Michael B. Kent Jr., Brannon P. Denning

Scholarly Works

No abstract provided.

Further Standing Lessons, Heather Elliott

Indiana Law Journal

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here). In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry

Review For Release: Juvenile Offenders, State Parole Practices, And The Eighth Amendment, Sarah F. Russell

Indiana Law Journal

State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court’s Eighth Amendment mandate.

The Court’s recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) …

Misreading And Mobility In Constitutional Texts: A Nineteenth Century Case, Iza Hussin

Indiana Journal of Global Legal Studies

This article explores the case of the adoption of Southeast Asia's first constitution (Johor, 1895) to articulate a fundamental problem of translation-the ambiguity and multiplicity of law's language. Closer attention to this problem helps raise a number of possibilities for rethinking the relationship between law, language, and mobility: firstly, polyphony, dissonance, and divergence in law's language reveals a plethora of political possibilities, audiences, and actors in the making of law; secondly, these ambiguities and multiplicities are integral to law's mobility; thirdly, rather than transmissions of law from center to periphery, law moves in circulations that are iterative, contingent, and patterned. …

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

Segregation In United States Healthcare: From Reconstruction To Deluxe Jim Crow, Kerri L. Hunkele

Honors Theses and Capstones

During the time period between Reconstruction and the Deluxe Jim Crow era, African Americans were legally oppressed, which hindered their ability to live fully and equally in society with whites. This was especially true in terms of healthcare. Segregation laws were implemented to separate blacks from the rest of society in everyday life; the worst of these laws affected the ability of African Americans to gain access to medical care that was equal to whites. This inequality prevented blacks from being accepted into society and from living quality lives that stem from adequate healthcare. Although the federal and state governments …

The New Speech, Andrew Tutt

UC Law Constitutional Quarterly

Could the government prevent Facebook from deleting an individual's Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, nontransferable, ungatherable, or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

Each …

The First Amendment And Religion After Hosanna-Tabor, Mark W. Cordes

UC Law Constitutional Quarterly

The Supreme Court's recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which it recognized a "ministerial exception" under the Religion Clauses to antidiscrimination laws, marks an important, though limited, development in protecting religious rights. Prior to Hosanna-Tabor, the Court had increasingly resorted to a neutrality paradigm in resolving religion issues under the First Amendment. Although the focus on neutrality frequently protected religious interests, particularly under the Free Speech and Establishment Clauses, it also failed to accommodate religious interests when they were burdened under neutral laws. As such, religious interests were increasingly vulnerable to government interference from …