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Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod 2010 IIT Chicago-Kent College of Law

Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod

All Faculty Scholarship

My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the …


Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman 2010 Cornell Law School, J.D. 2009

Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman

Cornell Law School J.D. Student Research Papers

The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. …


The Future Of God—And Secularism, Bruce Ledewitz 2010 Duquesne University

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.”


The Future Of God—And Secularism, Bruce Ledewitz 2010 Duquesne University

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals


March 1, 2010: The Post-Secular Is Not The Pre-Secular, Bruce Ledewitz 2010 Duquesne University

March 1, 2010: The Post-Secular Is Not The Pre-Secular, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Post-Secular is not the Pre-Secular“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.


Making Sense Of Facial And As-Applied Challenges, Alex Kreit 2010 William & Mary Law School

Making Sense Of Facial And As-Applied Challenges, Alex Kreit

William & Mary Bill of Rights Journal

No abstract provided.


Challenges To State Anti-Preference Laws And The Role Of Federal Courts, Michael E. Rosman 2010 William & Mary Law School

Challenges To State Anti-Preference Laws And The Role Of Federal Courts, Michael E. Rosman

William & Mary Bill of Rights Journal

No abstract provided.


Where Do We Go From Here? Handgun Regulation In A Post-Heller World, Lindsey Craven 2010 William & Mary Law School

Where Do We Go From Here? Handgun Regulation In A Post-Heller World, Lindsey Craven

William & Mary Bill of Rights Journal

No abstract provided.


The Sexual Offender Registration And Notification Act: No More Than "Statutory ‘Lip Service’ To Interstate Commerce", Lindsey B. Fetzer 2010 Washington and Lee University School of Law

The Sexual Offender Registration And Notification Act: No More Than "Statutory ‘Lip Service’ To Interstate Commerce", Lindsey B. Fetzer

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk 2010 William & Mary Law School

Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk

William & Mary Bill of Rights Journal

No abstract provided.


The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt 2010 William & Mary Law School

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

William & Mary Bill of Rights Journal

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education1 prohibited racial segregation in schools and other stateoperated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most …


How The Tenth Circuit’S Ruling In Martinez V. Beggs Affects The Deliberate Indifference Standard For Eighth Amendment Claims, Chad Olsen 2010 Brigham Young University Law School

How The Tenth Circuit’S Ruling In Martinez V. Beggs Affects The Deliberate Indifference Standard For Eighth Amendment Claims, Chad Olsen

BYU Law Review

No abstract provided.


The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West 2010 Washington and Lee University School of Law

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Washington and Lee Law Review

Increasingly more "ordinary"A mericans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories; they are exposing private information about others as well. The faceoff between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it. In a prior article, I established that autobiographicals peech is a unique and important category of speech that is at risk of being undervalued under current Law. This Article builds on my earlier work by addressing the emerging conflict between …


The Death Of Suspicion, Fabio Arcila Jr. 2010 Touro Law Center

The Death Of Suspicion, Fabio Arcila Jr.

William & Mary Law Review

At the nation’s founding, search warrants and the concept of suspicion were well entrenched as a means of limiting governmental search power. This tradition largely explains why today’s Fourth Amendment law includes two foundational black letter rules: the presumptive warrant requirement and the presumptive suspicion requirement. Unfortunately, neither of these rules is correct. Certainly they have historical support, especially in the common law. But whether they reflect the totality of our historic experience is questionable, especially when civil search practices are considered. More importantly, modern developments—such as urban life and technological advancements, the rise of the regulatory state, and post-9/11 …


The Remnants Of Exaction Takings, Timothy M. Mulvaney 2010 Texas A&M University School of Law

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Faculty Scholarship

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …


The Significance Of Signatures: Why The Framers Signed The Constitution And What They Meant By Doing So, Michael Coenen 2010 Louisiana State University Law Center

The Significance Of Signatures: Why The Framers Signed The Constitution And What They Meant By Doing So, Michael Coenen

Journal Articles

The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed in the Convention’s wake. To begin, the Note explains the signatures’ ambiguous form as the product of political maneuvering designed to win support for the Constitution during ratification. The Note then hypothesizes two ways in which the signatures may have helped to secure this support: (1) by highlighting pro-Constitution selling-points likely to resonate with the ratifying public; and (2) by limiting …


Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John H. Blume, Emily C. Paavola 2010 Cornell Law School

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.


A Fool For A Client: Competency Standards In Pro Se Cases , Reed Willis 2010 Brigham Young University Law School

A Fool For A Client: Competency Standards In Pro Se Cases , Reed Willis

BYU Law Review

No abstract provided.


Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert 2010 Benjamin N. Cardozo School of Law

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …


Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn 2010 Southern Methodist University Dedman School of Law

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn

Michigan Law Review

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States. I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …


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