Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman
Scholarly Works
No abstract provided.
Supreme Court Criminal Law Jurisprudence - October 2008 Term,
2010
Touro Law Center
Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein
Scholarly Works
No abstract provided.
The Death Of Suspicion,
2010
Touro Law Center
The Death Of Suspicion, Fabio Arcila Jr.
Scholarly Works
This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework,
2010
Touro Law Center
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Scholarly Works
In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity,
2010
Touro Law Center
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
Scholarly Works
In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …
Religion-Based Claims For Impinging On Queer Citizenship,
2010
Allard School of Law at the University of British Columbia
Religion-Based Claims For Impinging On Queer Citizenship, Bruce Macdougall, Donn Short
All Faculty Publications
Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual …
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15,
2010
Allard School of Law at the University of British Columbia
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young
All Faculty Publications
This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics,
2010
Allard School of Law at the University of British Columbia
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young
All Faculty Publications
This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of …
Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual,
2010
Southern Methodist University, Dedman School of Law
Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While …
Judging Cruelty,
2010
Southern Methodist University, Dedman School of Law
Judging Cruelty, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …
