Constitutional Law Commons^™

Silencing The Victims In Child Sexual Abuse Prosecutions: The Confrontation Clause And Children's Hearsay Statements Before And After Michigan V. Bryant, Deborah Paruch

Touro Law Review

No abstract provided.

Satellites And Municipalities: One Town’S Use Of Google Earth For Residential Surveillance, Edward Knoedler

Touro Law Review

No abstract provided.

July 15, 2012: Our House, Bruce Ledewitz

Hallowed Secularism

Blog post, “Our House“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 12, 2012: What Is Law School For?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is Law School For?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 8, 2012: If The Higgs Boson Particle Affected Capitalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “ If the Higgs Boson Particle Affected Capitalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 4, 2012: How To Be Religious, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to be Religious“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Bin Laden Exception, Erik Luna

Scholarly Articles

Osama bin Laden's demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the "war on terror," with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism-related fears have distorted the people's risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and …

July 1, 2012: The Significance Of The Obamacare Decision, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Significance of the Obamacare Decision“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Importance Of Constitution-Making, David Landau

Scholarly Publications

In this short invited contribution, I argue that scholars and policy-makers need to shift focus from the moment at which the break with the old regime occurs towards the moment at which new constitutional orders are constructed. The constitution-making process in countries like Tunisia, Egypt, and Libya, for example, is likely to determine in large measure what these new regimes are likely to look like. In particular, I draw off of a case study of the 2009 military coup in Honduras, which was provoked by ex-President Zelaya’s attempt to call a constituent assembly, to make two points. First, both constitutional …

The Legal Significance Of Adolescent Development On The Right To Counsel: Establishing The Constitutional Right To Counsel For Teens In Child Welfare Matters And Assuring A Meaningful Right To Counsel In Delinquency Matters, Michael J. Dale, Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Robert G. Schwartz

Faculty Scholarship

No abstract provided.

Who Decides On Liberty?, Thomas P. Crocker

Faculty Publications

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem unavoidable. Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer. But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty? After all, to make decisions about the appropriate balance between security and liberty …

Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton

Faculty Publications

No abstract provided.

Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff

Law Faculty Articles and Essays

The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.

Constitutional Law—First Amendment And Freedom Of Speech—The Constitutionality Of Arkansas’S Prohibition On Political Robocalls, Caleb J. Norris

University of Arkansas at Little Rock Law Review

The note first discusses the pros and cons of robocalls, concluding that certain restrictions on robocalls are desirable. Next, the note examines current constitutional case law governing the issue. Thereafter, the note illustrates how Arkansas's regulation on political robocalls would fail a First Amendment challenge as currently written. Accordingly, the note proposes a revision to the robocall statute that would most likely allow it to pass constitutional review.

The note concludes that the burdens resulting from robocalls are placed upon robocall recipients, opposing political campaigns (especially those that determine not to use them under current law), and unrelated third parties. …

Privacy For Social Networking, Connie Davis Powell

University of Arkansas at Little Rock Law Review

This article begins by considering the emergence of social networks as a major medium of communication and posits that the success of social networks is attributable to their users' willingness to share their information. Next, the article considers the expectation of privacy for users of social networks and whether such expectation is reasonable. In particular, the article discusses the privacy policies and legal terms governing the use of social networks, and tracks the evolution of such terms and policies as they slowly whittle away user control over time. The article then discusses public outcry regarding the disclosure of information contrary …

Editor's Note: Rights Consciousness In A Globalized World

Indiana Journal of Global Legal Studies

No abstract provided.

Dimensions Of Rights Consciousness, Carol J. Greenhouse

Indiana Journal of Global Legal Studies

Commenting on David Engel's Article, this Comment responds particularly to Engel's formulation of horizontal and vertical axes as a metaphor for the ways different analytical approaches to law and legal consciousness potentially yield *recombinant interpretive questions. Pursuing Engel's concerns with the embeddedness of local norms and social relations in state-based and global legal processes, this Comment suggests expanding the two dimensions of Engel's matrix to four, so as to highlight the relevance of social distance and temporality in the differing accounts of law he assays, and in appreciating their stakes. In so doing, this Comment situates Engel's essay as a …

Expanding The Horizons Of Horizontal Inquiry Into Rights Consciousness: An Engagement With David Engel, Michael W. Mccann

Indiana Journal of Global Legal Studies

This Comment interprets and reflects on the key features of David Engel's argument about the importance of balancing vertical models of rights diffusion with horizontal ethnographic studies of how rights consciousness develops out of practical experience in everyday social contexts. The primary focus is on endorsing the general argument and amplifying some understated or undeveloped dimensions of Engel's position. In particular, this reflection makes the case for: 1) expanding the range of subjects and contexts subjected to horizontal study, including especially greater attention to "haves" and elite actors; 2) studying subjects expected to have high rights consciousness as well as …

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The …

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

UF Law Faculty Publications

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …