Subjects -> LAW (Total: 1397 journals)
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Showing 1 - 44 of 44 Journals sorted alphabetically
Anuario de Derechos Humanos. Nueva Época     Open Access   (Followers: 3)
Anuario Iberoamericano de Justicia Constitucional     Open Access  
Asia Pacific Journal on Human Rights and the Law     Hybrid Journal   (Followers: 20)
Berkeley Journal of African-American Law & Policy     Open Access   (Followers: 4)
Cittadinanza Europea (LA)     Full-text available via subscription   (Followers: 2)
Constitutional Commentary     Full-text available via subscription   (Followers: 7)
Constitutional Forum : Forum constitutionnel     Open Access   (Followers: 6)
Constitutional Political Economy     Hybrid Journal   (Followers: 10)
Contemporary Politics     Hybrid Journal   (Followers: 10)
Cuestiones Constitucionales     Open Access   (Followers: 2)
Duke Journal of Constitutional Law & Public Policy     Open Access   (Followers: 10)
Estudios Constitucionales     Open Access   (Followers: 5)
European Constitutional Law Review (EuConst)     Full-text available via subscription   (Followers: 47)
Global Constitutionalism     Hybrid Journal   (Followers: 19)
Harvard Law School Journal on Legislation     Free   (Followers: 13)
Health and Human Rights     Open Access   (Followers: 10)
Human Rights Law Review     Hybrid Journal   (Followers: 70)
Humanity : An International Journal of Human Rights, Humanitarianism, and Development     Full-text available via subscription   (Followers: 20)
Intergenerational Justice Review     Open Access  
International Human Rights Law Review     Hybrid Journal   (Followers: 34)
International Journal of Constitutional Law     Hybrid Journal   (Followers: 69)
International Journal of Human Rights     Hybrid Journal   (Followers: 71)
International Journal of Human Rights and Constitutional Studies     Hybrid Journal   (Followers: 17)
International Journal on Minority and Group Rights     Hybrid Journal   (Followers: 9)
Ius Humani: Revista de derecho     Open Access  
Journal of Human Rights and the Environment     Full-text available via subscription   (Followers: 6)
Journal of Law, Religion and State     Hybrid Journal   (Followers: 4)
Journal of Legislation     Open Access   (Followers: 4)
Law & Governance     Full-text available via subscription   (Followers: 5)
Law and Humanities     Hybrid Journal   (Followers: 8)
Pensamiento Constitucional     Open Access   (Followers: 3)
Religion and Human Rights     Hybrid Journal   (Followers: 13)
Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito     Open Access   (Followers: 1)
Revista de Investigações Constitucionais     Open Access   (Followers: 2)
Revista Española de Derecho Constitucional     Open Access   (Followers: 1)
Revus     Open Access   (Followers: 3)
SASI     Open Access   (Followers: 7)
Seton Hall Legislative Journal     Open Access   (Followers: 3)
Theory and Practice of Legislation     Hybrid Journal   (Followers: 8)
University of Pennsylvania Journal of Constitutional Law     Open Access   (Followers: 5)
Washington and Lee Journal of Civil Rights and Social Justice     Open Access   (Followers: 8)
William & Mary Bill of Rights Journal     Open Access   (Followers: 6)
Yale Human Rights & Development Law Journal     Full-text available via subscription   (Followers: 19)
Zeitschrift für öffentliches Recht     Hybrid Journal   (Followers: 21)
Similar Journals
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William & Mary Bill of Rights Journal
Number of Followers: 6  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1065-8254
Published by College of William and Mary Homepage  [5 journals]
  • The Price of Democracy: Evaluating the Excessing Fines Clause in Light of
           Florida Felon Disenfranchisement

    • Authors: Raven Peters
      Abstract: This Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their sentences. Part III will provide the new and improved test for weighing the Excessive Fines Clause. This section will evaluate the old test of proportionality before suggesting the test be adapted to include the ability to pay and the weight of the right infringed. Finally, Part IV will apply the new test to Florida Statutes section 98.0751 and illustrate how the Court should rule in its evaluation of not only this bill but also in like circumstances. While this Note focuses particularly on the weight of the right to vote as compared to the excessiveness of the fine, this test can be broadly applied to any infringement of a right via fines, through the lens of proportionality.This abstract has been taken from the author's introduction.
      PubDate: Thu, 05 Jan 2023 06:35:53 PST
  • Limited Protection: The Impact of Illegal Entry on Due Process Rights in
           Expedited Removal Proceedings

    • Authors: Sun Shen
      Abstract: [...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments that persecuted them. Furthermore, illegality of entry creates the concept of undeserving asylum applicants, which often conflicts with the principle of fairness in removal proceedings.This Note proceeds as follows. Part I discusses important legal issues relevant to understanding asylum seekers’ due process rights in expedited removal proceedings, including Congress’s plenary power over immigration, the asylum application process, and the statutory expedited removal framework. Part II analyzes the Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam, which reversed key determinations from the Ninth Circuit. Part III advances this Note’s main arguments. Illegal entry significantly limits asylum seekers’ due process rights by triggering expedited removal. However, giving the legality of entry undue weight in the asylum process leads to arbitrary adjudications and high risks of error. Asylum eligibility should not be contingent upon legal entry in a way that violates the Due Process Clause of the Fifth Amendment. Finally, Part IV examines how sociopolitical factors complicate the issue.This abstract has been taken from the author's introduction.
      PubDate: Thu, 05 Jan 2023 06:35:49 PST
  • Maybe We Don't Need to Find Waldo After All: Why Preventing Voter
           Fraud is Not a Compelling Interest

    • Authors: Brandon T. Goldstein
      Abstract: This Note takes the position, counter to established jurisprudence, that the prevention of voter fraud is not a compelling state interest that can independently justify restrictions on the right to vote. It will seek to do so through two mechanisms. First, it will argue that the right to vote is unjustifiably treated differently than other rights by courts, using a comparison to the Second Amendment right to bear arms. Second, it will argue that current jurisprudence holding the prevention of voter fraud to be a compelling interest misunderstands the inherent means-ends distinction in voting rights standards. The prevention of voter fraud is not an end in itself, rather it is a means designed to serve the overarching end of election integrity. Finally, the Note will account for electoral policy solutions that can help address election integrity without overburdening citizens’ voting rights.This abstract has been taken from the author's introduction.
      PubDate: Thu, 05 Jan 2023 06:35:46 PST
  • Originalism's Implementation Problem

    • Authors: Michael L. Smith et al.
      Abstract: Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.We do not seek to bridge this gap in the originalist literature or to cast aspersions on the reasons for its uptake in legal practice. Instead, we argue that originalism is difficult, if not impossible, to implement—at least in cases where a theory of interpretation matters. By demonstrating that originalism is more of an academic phenomenon than a guide for legal practice, we cast serious doubt on judicial and political treatment of originalism which tends to frame originalism as a method, if not the method, that judges should employ when interpreting the Constitution.[...]We do not propose solutions for implementing originalism. Indeed, we have little hope that originalists will succeed in solving the problem of implementation should they finally decide to devote the necessary time and effort to confront this issue. We hope that this Article will prompt originalists to at least attempt to take the practice—not just the theory—of originalism seriously. Should originalists fail to rise to this challenge, academic originalism will remain little more than an abstract, theoretical exercise that is fatally disconnected from the practice of law. In such a case, originalism’s supporters, including judges and politicians, will need to acknowledge that originalism in practice lacks the rigor and nuance of originalism as theorized.This abstract has been adapted from the authors' introduction.
      PubDate: Thu, 05 Jan 2023 06:35:42 PST
  • The Case for Local Data Sharing Ordinances

    • Authors: Beatriz Botero Arcila
      Abstract: Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig workers. These companies, however, sometimes argue that sharing this information violates their users’ privacy rights and their own privacy rights, because this information is theirs; it is part of their business records. The question is thus what those rights are, and whether it should and could be possible for local governments to access that information to advance equity and sustainability, without harming the legitimate privacy interests of both individuals and companies. This Article argues that within current Fourth Amendment doctrine and privacy law there is space for data sharing programs. Privacy law, however, is being mobilized to alter the distribution of power and welfare between local governments, companies, and citizens, within current digital information capitalism to extend those rights beyond their fair share and preempt permissible data sharing requests. This Article warns that if the companies succeed in their challenges, privacy law will have helped shield corporate power from regulatory oversight, while still leaving individuals largely unprotected and submitting local governments further to corporate interests.
      PubDate: Thu, 05 Jan 2023 06:35:39 PST
  • Forgetting Marbury's Lesson: Qualified Immunity's Original

    • Authors: Tobias Kuehne
      Abstract: Substantial parts of the history of qualified immunity remain unwritten. While qualified immunity is hotly debated among scholars and practitioners, we know little about qualified immunity’s origins, and the institutional pressures that shaped its historical path. This Article provides that missing history. It begins by observing the striking parallels between Pierson v. Ray—qualified immunity’s origin case—and Marbury v. Madison. Both were suits against government officials to vindicate individual rights granted by a congressional statute, and both cases arose while the Court was under intense political pressure. In each case, the Supreme Court struck a surprising middle ground: It insisted that those individual rights should be broadly available but reserved judicial discretion on when to provide a remedy. In both cases, the Court thus declined to apply a broad statutory grant of authority and interposed a new, judicially created authority—judicial review in Marbury, and qualified immunity in Pierson. And in both cases, the Supreme Court turned political pressures to its advantage.But while Marbury is recognized as a success story, qualified immunity is not. In the first decade after Pierson, the Court still tried to use qualified immunity to position the judiciary as a mediator between citizens and government officials in § 1983 and Bivens actions. This effort, led by Justice Byron White, culminated in Harlow v. Fitzgerald, which articulated the modern qualified immunity standard. But ever since Harlow, the Supreme Court has abandoned the Marburian middle position of balancing rights and remedies. Spearheaded by Chief Justice William Rehnquist, the Court began to limit the availability of both judicial remedies and individual rights in qualified immunity actions.Marbury’s success story—and qualified immunity’s failure—thus gives guidance on how a politically beleaguered Court should mediate between citizen plaintiffs and officer defendants: recognize the broad availability of individual while granting a partial victory to the Court’s critics, and carve out a new domain of authority that enhances the judiciary’s independence and legitimacy in the process. This Article traces qualified immunity’s historical departure from its Marburian wisdom, points to a litigation strategy that could restore it, and derives some deeper lessons about the Court’s institutional limitations.
      PubDate: Thu, 05 Jan 2023 06:35:35 PST
  • The First Amendment Weaponized: When Guns Become Public Discourse

    • Authors: Danny Li
      Abstract: This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and social norms. This Article maps a doctrinal path that judges should take to reject these challenges while providing a conceptual language for bystanders to reassert and reclaim their rights to public safety and participation from open carriers trying to weaponize the First Amendment.To courts, the Article argues that the practice of open carry is too divorced from the value of democratic self-governance to constitute public discourse deserving of First Amendment coverage. Courts should deny First Amendment coverage to gun carry both because bearing arms in public does not facilitate the formation of public opinion and because doing so preserves the social and legal norms that exclude guns from the public sphere. These norms—encoded in commonplace gun control laws— serve important constitutional values and interests central to the First Amendment.To nonjudicial audiences, the Article calls for advocates of gun control to flip the script on these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political participation more broadly. These First Amendment challenges illustrate the extent to which pro-gun rights movements transcend the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs about the right to bear arms trickle down into popular beliefs about other, adjacent constitutional rights like the First Amendment right to freedom of speech. Through considering these First Amendment challenges to gun control measures and looking beyond their lack of judicial success, we can begin to see how popular beliefs about the right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech.
      PubDate: Thu, 05 Jan 2023 06:35:31 PST
  • From Negative to Positive Algorithm Rights

    • Authors: Cary Coglianese et al.
      Abstract: We consider this issue here and suggest that the current calls for a negative right to be free from AI could very well transform over time into positive claims that demand the use of algorithmic tools by government officials. In Part I, we begin by sketching the current landscape surrounding the adoption of AI by government. That landscape is characterized by strong activist and scholarly voices expressing a pronounced aversion to the use of digital algorithms—and taking a decidedly negative rights tone. In Part II, we show that, although aversion to complex technology might be understandable, that aversion is neither inevitable nor impossible to overcome. We offer several examples of advanced technologies and analytic techniques that in the past have emerged in the face of significant criticism, but which have come to be widely accepted. In fact, there now exists an affirmative expectation—even at times a legal one—that government should use these technologies when making consequential decisions affecting people’s interests.Given the possibility of legal and, more broadly, public insistence on the use of at least certain kinds of advanced technologies, we put forward in Part III a set of factors that may help lead eventually to widespread acceptance of algorithmic technologies similar to the acceptance of the technologies discussed in Part II. We suggest that a path forward exists that might build a general acceptance of the use of algorithmic tools by governmental entities, a path that would represent a shift from present-day calls for negative-rights protections against AI to eventual positive-rights expectations that good government practices routinely involve the use of AI.This abstract has been taken from the authors' introduction.
      PubDate: Thu, 05 Jan 2023 06:35:27 PST
  • Table of Contents (v. 30, no. 4)

    • PubDate: Thu, 05 Jan 2023 06:35:24 PST
  • Not So Objective Indicia: Why Public Polling and Ballot Referenda Could
           Create a More Concrete Standard for Eighth Amendment Objective Indicia

    • Authors: Jonathan Marchuk
      Abstract: The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a maturing society.” To evaluate how society views the punishment at a given time, the Court looks to “objective indicia” of the nation’s opinion.This Note will focus on what the phrase “cruel and unusual punishment” means in the context of modern-day punishments. It will argue that the objective indicia used to evaluate the current evolving standards of decency causes too much confusion and leaves this portion of Eighth Amendment analysis up in the air. If the purpose of the objective indicia test was to capture society’s moral standards, then the test is failing to achieve its goal. With recent changes to the Supreme Court, objective indicia have been, and will likely continue to be, interpreted in ways that do not reflect current societal standards. In fact, current standards may encourage penalties, such as the death penalty, for the political reason of ensuring the punishment remains constitutional.[...]Part I of this Note will discuss the history of the Eighth Amendment and what objective indicia the Court has used in the past. Part II will discuss questions raised by the current analysis of objective indicia. Finally, Part III will argue that to fix the problems with objective indicia, the evolving standards of decency test needs to be changed to allow for a more objective method of evaluation.This abstract has been adapted from the author's introduction.
      PubDate: Tue, 18 Oct 2022 14:30:51 PDT
  • Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission: The Supreme
           Court Misses Its "Shot" at Clarifying State Alcohol Regulations and the
           Commerce Clause

    • Authors: Josephine Battles
      Abstract: The Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the Fifth Circuit has misapplied and misinterpreted case precedent to generate an arbitrary per se rule for similarly situated businesses. The interpretation used by the Fifth Circuit has created a circuit split for both state alcohol regulations and the Commerce Clause more generally. The Supreme Court’s ignorance of the errors committed by the Fifth Circuit in Wal-Mart Stores has opened the door to constitutional, legislative, and economic harms.Part I of this Note will discuss the interconnection between the Commerce Clause and the Twenty-First Amendment. Part II will discuss the case history of Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. Part III will argue that the Supreme Court erred by denying certiorari in Wal-Mart Stores preview the potential harms stemming from this decision.This abstract has been taken from the author's introduction.
      PubDate: Tue, 18 Oct 2022 14:30:48 PDT
  • All the Sovereign's Agents: The Constitutional Credentials of

    • Authors: Kate Jackson
      Abstract: [...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained from political theory’s representative turn. It will first define this important intellectual development and then explain how administrative agencies might fit comfortably within a representative system. The Article concludes by showing how theories of representation can inform some enduring debates in administrative law and suggesting some changes that might enhance the legitimacy of agency action.This abstract has been taken from the author's introduction.
      PubDate: Tue, 18 Oct 2022 14:30:44 PDT
  • The Coddling of the American Worker's Mind: The Anti-Free Speech
           Nature of Popular Labor Law Reforms

    • Authors: Daniel V. Johns
      Abstract: As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom of choice—the NLRA’s statutory goal in union elections. For these reasons, many labor law reform proposals should be rejected and seen for what they are: an attempt to suppress a particular viewpoint in furtherance of unionization, without regard for employee freedom of choice or a free and fair debate.This abstract has been taken from the author's introduction.
      PubDate: Tue, 18 Oct 2022 14:30:41 PDT
  • From Private Prejudice to Public Policy: How Religious Conservatives Use
           Liberalism to Control Women's Bodies -- the United States and Israel
           in Comparative Perspective

    • Authors: Gila Stopler
      Abstract: The Article uses the feminist critique of the patriarchal nature of religion and liberalism, the feminist critique of flaws in political liberalism, and a socio-political analysis of the power of religious conservative groups in the United States and Israel to claim that religious conservatives use the patriarchal nature of liberalism, its inherent flaws, and conservative political power to turn private religious prejudice into public policy. Analyzing the constitutional and legal status of religion in the United States and the recent dramatic changes it has undergone, the Article shows that contrary to popular belief, and due to the aforementioned factors, the American model of separation between religion and the state cannot protect women’s rights against the religious conservative attack. The Article uses a comparative analysis of the religious conservative attack on women’s rights in Israel to show that despite the very different religion-state relations, the religious conservative attack in the two countries is similar in both method and success.
      PubDate: Tue, 18 Oct 2022 14:30:37 PDT
  • Hope Dies Last: The Progressive Potential and Regressive Reality of the
           Antibalkanization Approach to Racial Equality

    • Authors: David Simson
      Abstract: This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both long-standing and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other'[...]Over the last four decades, the Supreme Court’s equal protection jurisprudence on governmental race-consciousness has answered with an “antibalkanization approach” which prioritizes social cohesion. Indeed, this approach views social cohesion as a prerequisite for racial equality progress. It considers racial hostility and resentment among White Americans as the most important racial equality obstacle and polices governmental race-consciousness in an attempt to minimize such hostility and resentment. It believes that this is the only way to reach the constitutional ideal of racial equality. Many policymakers in the past have agreed. This Article posits that while this approach appears to be well-meaning and cares about some of the right kinds of considerations, it is ultimately flawed because it misunderstands the dynamics of racial inequality and racial hierarchy. The antibalkanization approach attempts to solve a structural problem with a “bad apple” approach—what Critical Race Theory scholars have called a perpetrator perspective. This Article goes in depth to illustrate both the inner workings of the antibalkanization approach and how social science research on the sociological and social psychological dimensions of racial hierarchy shows it to be flawed. The approach ought to be replaced by a more accurate model of racial equality progress that would view White racial hostility and resentment not as an obstacle but as a likely inevitable side effect of the path of structural change that is necessary for achieving both racial equality and social cohesion over the long term. Adopting such a structural understanding of racial hostility and resentment would have important implications for both policymakers and for the Court.This abstract has been adapted from the author's introduction.
      PubDate: Tue, 18 Oct 2022 14:30:33 PDT
  • Solidifying Supremacy Clause Immunity

    • Authors: Leslie A. Gardner et al.
      Abstract: States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law' The answer lies in the doctrine of Supremacy Clause immunity. As the issue has seldom arisen, scholarship and case law on the subject is limited. In light of the rise in federal-state disputes, and considering the competing constitutional concerns and the criminal charges federal officers could face, a solidified framework for handling these types of cases is desperately needed. Moreover, these cases often involve motions to dismiss under Federal Rule of Criminal Procedure 12(b)(6), which presents a unique procedural question: whether a judge or jury should decide disputed issues of material fact. We propose a framework wherein juries should decide disputed issues of material fact in Supremacy Clause immunity cases. Further, we propose a Supremacy Clause immunity test that more thoroughly defines when (1) a federal officer is authorized by federal law to take certain actions, and (2) when a federal officer’s actions are “necessary and proper.” While our proposals do not solve every foreseeable problem in a Supremacy Clause immunity case, they do prevent the issues associated with the patchwork approach adopted by Supremacy Clause immunity’s cousin—qualified immunity.
      PubDate: Tue, 18 Oct 2022 14:30:30 PDT
  • Table of Contents (v. 30, no. 3)

    • PubDate: Tue, 18 Oct 2022 14:30:26 PDT
  • Geofence Warrants: Geolocating the Fourth Amendment

    • Authors: A. Reed McLeod
      Abstract: This Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter's holding must mean location data should be treated as content, which triggers a statutory warrant requirement under the Stored Communications Act.In Part III, having established a warrant is necessary, this Note further argues geofence warrants can satisfy the probable cause and particularity requirements of the Fourth Amendment. For probable cause, the government must narrowly tailor the warrant to objective, established facts, avoiding the incidental capture of other users as much as possible. For particularity, in a similar sense, the government must use ex antelimitations on the warrant that restrict the capture of data to only those individual users for whom probable cause has been established, permitting as little officer discretion in the execution of the warrant as possible. Courts view the Fourth Amendment through the lens of what is reasonable: a narrow geofence warrant is better, all things considered. To effectively tackle these complex Fourth Amendment issues, this Note begins with technology and procedure of a geofence warrant itself.This abstract has been adapted from the author's introduction.
      PubDate: Fri, 29 Jul 2022 12:04:42 PDT
  • Ballots in an Unfamiliar Language and Other Things That Make No Sense:
           Interpreting How the Voting Rights Act Undermines Constitutional Rights
           for Voters with Limited English Proficiency

    • Authors: Abigail Hylton
      Abstract: This Note will argue that the current federal scheme for determining the baseline resources that a state must provide to voters with limited English proficiency is unconstitutional. Specifically, the Voting Rights Act neglects to require adequate translation and interpretation services for many voters with limited English proficiency. Such failure to adequately support this group of citizens throughout the election process effectively excludes them from the democratic process and deprives them of their constitutional right to vote. Whether this group of voters has access to translated materials currently hinges on the language they speak, their nationality, and their geographic location; the scheme set forth in the Voting Rights Act, therefore, deprives these citizens of their right to equal protection under the law.Part I will provide background information, including a closer look at the non- English speaking population in the United States. It will also examine the various ways that the federal and state governments have succeeded in expanding -- or have failed to expand -- voting rights for citizens who speak a language besides English, including relevant provisions of the Voting Rights Act. Part II will explain the remaining barriers to access and the problems with the current language assistance system laid out in the Voting Rights Act. Part III will assess whether the minority language provisions of the Voting Rights Act violate the Equal Protection Clause, using both the Anderson-Burdick test and a more traditional equal protection analysis. Part IV will recommend solutions that could expand access to language resources, while also considering potential counter-arguments and challenges that may stand in the way of implementing lasting change.This abstract has been adapted from the author's introduction.
      PubDate: Fri, 29 Jul 2022 12:04:38 PDT
  • Ridden with Controversy: Applying the Public Forum Doctrine to Public
           Transit Advertising

    • Authors: Remy T. B. Oliver
      Abstract: This Note tackles the application of the First Amendment to public transit advertising. Under the current judicial framework, the First Amendment is filtered through the "public forum doctrine" when discussing the rights of citizens to utilize government property for expressive purposes. The Note will argue that public transit advertising constitutes a "designated public forum" in most (if not all) cases. That characterization would force any content-based restrictions to be narrowly tailored to serve a compelling government interest. The natural result is a significant expansion of access to public transit advertising by interested parties. If the U.S. Supreme Court were to grant certiorari to resolve the circuit split, as it declined to do in 2016, it should hold that most public transit systems are categorically a designated public forum.Part I discusses the origins of, and the basic approach to, application of the public forum doctrine. Part II discusses the majority approach of circuit courts, finding that public transit systems are a designated public forum. Part III discusses the minority approach of circuit courts, asserting that public transit systems are a non-public forum. Part IV discusses the government speech doctrine in the context of public transit advertising, including the extent to which it is applicable in that context. Part V discusses the issue of the "captive audience" and potential avenues to distinguish controversial public transit advertising from other types of offensive content. The Conclusion provides a clear overview of the four-part majority approach and cleanly integrates the major issues of government speech and captivity into the overall analysis.This abstract has been adapted from the author's introduction.
      PubDate: Fri, 29 Jul 2022 12:04:34 PDT
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