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Topic: Constitutional Law

Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need To Reform the Fourth Amendment Special Needs Doctrine

Josh Gupta-Kagan | Article

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements.  The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights.

Child protection investigations illustrate the problem:  millions of times each year, state child protection authorities search families’ homes and seize children for interviews about alleged maltreatment.  Only a minority of these investigations [...]

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Fisher v. University of Texas at Austin: The Fifth Circuit Questions Judicial Deference to Race-Conscious Admissions Policies in Higher Education

Kathleen McNearney | Note

The Fifth Circuit held that as long as Grutter remained good law, UT’s use of race-conscious measures in admissions decisions complied with the Equal Protection Clause of the Fourteenth Amendment because it was narrowly tailored to achieve a critical mass of minorities despite its simultaneous use of the Ten Percent Law. Fisher v. University of Texas at Austin, 631 F.3d 213, 246-47 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012).

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Capitalism, Liberalism, and the Right to Privacy

Ofer Raban | Article

The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or–more likely–is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it then applies to Supreme Court cases dealing with the right to privacy. As we shall see, the Court’s failure to follow liberal principles lies at the heart of its inconsistencies. [...]

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Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Ira P. Robbins | Article

Per curiam—literally translated from Latin to “by the court”—is defined by Black’s Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’s tenure, almost nine percent of the Court’s full opinions were per curiams. The prevalence [...]

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Advisory Adjudication

Girardeau A. Spann | Article

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court’s decision, therefore, has the paradoxical effect of both honoring [...]

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With Adar v. Smith, the Fifth Circuit Opens a Hole in the Full Faith and Credit Clause

Cassandra R. Hewlings | Note

[T]he Fifth Circuit, sitting en banc, held the obligation imposed on state courts under the Full Faith and Credit Clause does not give rise to a cause of action under § 1983 against nonjudicial state actors; that the Registrar’s refusal to issue a birth certificate listing both Adar and Smith as parents did not deny full faith and credit to the New York adoption; and that Louisiana’s adoption law restricting joint adoption to married couples was rationally related to its legitimate interest in encouraging stable familial environments for adopted children. Adar v. Smith, 639 F.3d 146, 154, 161-62 (5th Cir. [...]

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I’ll Believe it When I C It: Rethinking 501(c)(3)’s Prohibition on Politicking

Jennifer Rigterink | Comment

The United States Supreme Court’s decision in Citizens United v. FEC challenged fundamental notions of free speech jurisprudence. While many commentators have focused on the decision’s implications for corporate speech, this Comment examines whether the new First Amendment paradigm announced in Citizens United will challenge current speech restrictions on churches and other entities organized under § 501(c)(3). Not only does this Comment propose that such restrictions could potentially be invalidated based on the Court’s reasoning in Citizens United, but also that practical factors relating to compliance and enforcement problems inherent in § 501(c)(3) indicate the ban should be amended. This [...]

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Documentary Disenfranchisement

Jessie Allen | Article

In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfran-chisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of [...]

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Breaking the Grip of the Administrative Triad: Agency Policy Making under a Necessity-Based Doctrine

Michael Ray Harris | Article
The justification for the modern American administrative state is built on a belief that (1) limited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference are akin to the system of checks and balances established by the nation’s Founders. In this Article, I propose that the time has come to rid ourselves of this legal fiction, particularly as it has developed in two well-known (and highly criticized) lines of administrative cases: the United States Supreme Court’s Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., jurisprudence and the United States Court of Appeals for the District of [...]
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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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