Constitutional Law Commons^™

Report As To Proposed Pilot Project On The Electronic Monitoring Of Forensic Mental Health Patients, Elaine Gibson, Leah Hutt, Sheila Wildeman, Constance Macintosh

Reports & Public Policy Documents

This report was undertaken in response to a request from the Nova Scotia government for assistance in identifying and analyzing legal issues related to the potential establishment of a pilot project. The project would involve the use of electronic monitoring (EM) of forensic mental health patients (patients) detained at the East Coast Forensic Hospital (ECFH) who are exercising indirectly supervised and unescorted community access (community access). The purpose of our analysis is not to determine if an EM policy or its application violates any laws. Rather, the purpose is to consider whether there are factors that may support legal challenges …

Meta Rights, Charlotte Garden

Faculty Articles

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This article refers to these entitlements as “meta rights” — rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well — among them, the First Amendment right of individuals represented by …

The Slow Evolution Of Second Amendment Law, Joan H. Miller

Seattle University Law Review Online

Shortly after the Sandy Hook Elementary School shooting left twenty children and six adults dead, a public movement ensued. The movement demanded that gun violence be addressed as a public health issue. While the movement led to successful gun control reform in a few states, it was unable to gain any traction in the federal government and had the opposite effect in others states where firearms became easier to own, carry, and conceal. Joan Miller provides an update on changes in the Second Amendment law that have occurred since her Article, The Second Amendment Goes to College, was published in …

"Hobby-Lobby"-Ing For Religious Freedom: Crafting The Religious Employer Exemption To The Ppaca, Emily Pitt Mattingly

Kentucky Law Journal

No abstract provided.

The Kentucky Religious Freedom Act: Neither A Savior For The Free Exercise Of Religion Nor A Monstrous Threat To Civil Rights, Jennifer A. Pekman

Kentucky Law Journal

No abstract provided.

Constitutional Law, Jethro Lieberman

Other Publications

No abstract provided.

Constitutionalism, Jethro K. Lieberman

Other Publications

No abstract provided.

What Is Extraterritorial Jurisdiction?, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The phenomenon of extraterritorial jurisdiction, or the exercise of legal power beyond territorial borders, presents lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. U.S. courts, including the Supreme Court, have increasingly been wrestling this conceptual and doctrinal Hydra. Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because the answer to the first question is often conditional on the answer to the second, the …

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

The Stealth Press Clause, Sonja R. West

Scholarly Works

In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

Why Wynne Should Win, Dan T. Coenen

Scholarly Works

In Maryland State Comptroller of the Treasury v. Wynne, the Court could reshape core features of dormant Commerce Clause law. Maryland’s theory in the case is that it can lay an income tax on every penny of an individual resident’s income even if some of that income is earned entirely outside the state and therefore, in keeping with standard state practice, already taxed elsewhere. On its face, this approach exposes interstate income earners to overlapping income taxation. Maryland’s scheme thus violates a cardinal principle of dormant Commerce Clause law, “forbidding” state laws that expose interstate commerce “to the risk …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Article Iii And Bankruptcy Code Standing: Preserving A Party’S Right To Object To A Proposed Reorganization Plan, James Scahill

Bankruptcy Research Library

(Excerpt)

In a chapter 11 bankruptcy proceeding, a troubled company can either restructure or liquidate through a confirmed chapter 11 plan. To encourage more participation in reorganization cases, courts have broadly interpreted section 1109(b) of the Bankruptcy Code, which determines who may object to a plan. Section 1109(b) states that “a party in interest, including the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter.” A party wishing to object to …

The American Liberty League And The Rise Of Constitutional Nationalism, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

All Faculty Scholarship

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis …

The Prudential Third Party Standing Of Family-Owned Corporations, Matthew I. Hall, Benjamin Means

Scholarly Works

On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby and Conestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious …