Constitutional Law Commons^™

Another Can Of "Crawford" Worms: Certificates Of Nonexistence Of Public Record And The Confrontation Clause, Keith Hollingshead-Cook

Vanderbilt Law Review

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right .. . to be confronted with the witnesses against him."' When the Supreme Court decided Crawford v. Washington in 2004, it established a new standard for assessing the scope of this right and determining when hearsay is admissible as trial evidence against a criminal defendant. Rather than basing decisions regarding a defendant's right to confrontation on a judicial inquiry into the reliability of a particular statement, an approach typified by the Court's earlier decision of Ohio v. …

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker - And The Role Of The Due Process Clause, Lynn Mclain

Cardozo Law Review

No abstract provided.

Political Party Restrictions And The Appointments Clause: The Federal Election Commission's Appointments Process Is Constitutional, Joshua Kershner

Cardozo Law Review

No abstract provided.

The Right To Voice Reprised, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article appears in a symposium issue of Seton Hall Law Review on courtroom epistemology. In Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness, I argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the …

Unraveling Lawrence's Concerns About Legislated Morality: The Constitutionality Of Laws Criminalizing The Sale Of Obscene Devices, Nathan R. Curtis

BYU Law Review

No abstract provided.

Judging Myopia In Hindsight: Bivens Actions, National Security Decisions, And The Rule Of Law, Peter Margulies

Law Faculty Scholarship

Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the …

Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin

Faculty Publications

Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a more narrowly tailored …

Deactivating The Mousetrap: Entrapment By Estoppel As A Defense To Federal Felon-In-Possession Charges, Madeline Stavis

Cardozo Law Review

No abstract provided.

No One Ever Died From Copyright Infringement: The Inducement Doctrine's Applicability To Firearms Manufacturer Liability, Shane Wagman

Cardozo Law Review

No abstract provided.

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee J. Strang

BYU Law Review

No abstract provided.

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

October 31, 2010: Why I Wish No One Had Gone To The Stewart/Colbert Rally, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why I Wish No One Had Gone to the Stewart/Colbert Rally“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 28, 2010: Is Islam A Religion Of Peace?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Islam a Religion of Peace?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal, Joyce Lee Malcolm

NULR Online

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny …

October 25, 2010: Why Are The Democrats Doing So Badly?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Are the Democrats Doing So Badly?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hate Speech And Harassment: The Constitutionality Of Campus Codes That Prohibit Racial Insults, Alan E. Brownstein

William & Mary Bill of Rights Journal

No abstract provided.

October 20, 2010: What Does Altruism Tell Us About The Nature Of The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Does Altruism Tell Us About the Nature of the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 17, 2010: Woody Allen’S Hell, Bruce Ledewitz

Hallowed Secularism

Blog post, “Woody Allen’s Hell“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 14, 2010: Why Is Snyder V. Westboro Baptist Church A Free Speech Case?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why is Snyder v. Westboro Baptist Church a free speech case?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.