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All Volumes | Volume 86 | Issue 1

Emergence of a Deportation Gideon: The Impact of Padilla v. Kentucky on Right to Counsel Jurisprudence

Duncan Fulton | Comment

In Padilla v. Kentucky, the United States Supreme Court imposed a Sixth Amendment mandate on criminal defense attorneys to warn their clients of the immigration consequences of a criminal plea. Rooted in Sixth Amendment precedent, the Court’s new constitutional requirement arose principally out of its concern that the unique nature of immigration consequences required heightened due process protections. This Comment analyzes Padilla‘s specific impact on the concept of a right to appointed counsel in deportation proceedings. Although no deportation Gideon right existed before Padilla, signs indicate that the Court may be willing to revisit the issue. After explaining Padilla‘s relation [...]

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Transnational Class Actions and the Illusory Search for Res Judicata

Tanya J. Monestier | Article

The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign [...]

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Is It Really That Simple?: Circuits Split over Reasonable Suspicion Requirement for Visual Body-Cavity Searches of Arrestees

Camille E. Gauthier | Comment

In Bell v. Wolfish, the United States Supreme Court upheld visual body-cavity strip searches on pretrial detainees but called for a balancing of privacy and security interests. For the three decades following Bell, courts routinely read in a reasonable suspicion requirement as part of that balance. That changed in 2008 when the United States Court of Appeals for the Eleventh Circuit held that the Fourth Amendment permits strip searches of all arrestees, regardless of whether there is any reasonable suspicion that an arrestee possesses contraband. In 2010, the United States Courts of Appeals for the Third and Ninth Circuits followed [...]

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Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy Essay

Karl S. Coplan | Article
The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century, however, American legal realists persuasively questioned the determinacy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement “decisions” before the cognitive parts of the brain are even aware that [...]
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False Efficiency and Missed Opportunities in Law and Economics

Shawn J. Bayern Tul. L. Rev. Article
This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability. The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly, that when it is more efficient for an activity to occur than for it not to occur, it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. [...]
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Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines

Michael Pappas | Article
This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines. This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of [...]
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