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Showing papers in "Albany law review in 2014"


Journal Article

[...]

TL;DR: In the early morning hours of August 21, 2013, rockets carrying chemical weapons struck outside the Syrian capital of Damascus, killing an estimated 1429 people, including 426 children as discussed by the authors.
Abstract: I. INTRODUCTION In the early morning hours of August 21, 2013, rockets carrying chemical weapons struck outside the Syrian capital of Damascus, killing an estimated 1429 people, including 426 children. (1) The U.S. government concluded, with "high confidence," that the Syrian government, which was known to have stockpiles of various chemical weapons, perpetrated the attack. (2) While the brutal nature of this attack may be surprising to most, it is just one example of many in which the Syrian government utilized force against its own population. (3) The Syrian Civil War has been described as "the biggest humanitarian catastrophe of this century." (4) It began in March of 2011 "in the wake of the Arab Spring [and] has evolved into a brutal and bloody civil war between the Assad Regime and opposition forces." (5) While it was the August chemical weapon attack that nearly entangled the United States in an armed conflict with Assad's forces, (6) there are numerous concerns associated with this conflict that long precede the use of chemical weapons. (7) One such concern involves the growing number of refugees that continue to flee from Syria. (8) Between March 2011 and September 2013, two million refugees fled to neighboring countries, North Africa, and Europe, with 1.8 million leaving the war torn state between September 2012 and September 2013 alone. (9) At the time of this writing, there are 2.8 million refugees. (10) Of that population, it is estimated that thousands have no access to assistance from the international community because they are living outside of refugee camps. (11) Perhaps most startling is that an estimated fifty-two percent of these refugees are children under the age of eighteen. (12) By March of 2014, the number of Syrian child refugees surpassed 1.2 million. (13) Not only are many of these children exposed to traumatic violence and family upheaval during the course of their escape, but many have missed upwards of two years of school and are unable to reenroll in their host countries. (14) This note will consider the international human right to education for child refugees in the context of the Syrian Refugee Crisis. There are numerous provisions in international law aimed at protecting children's right to education. Unfortunately, the flaws in these provisions are notable as political unrest may, at any time, deny an entire generation of children an education. Part II will discuss the genesis of the Syrian Refugee Crisis, briefly examining the origins of the civil war. Part III will discuss the refugee crisis that has emerged from that war in the context of the most effected host countries. In addition, particular attention will be directed at the actions taken by each host country to expand access to education for Syrian child refugees. Part IV will discuss the role of international law in protecting the right to education and how the right to education's status as a "second-generation human right" severely limits its applicability in the context of the Syrian crisis. (15) Part V will address the current problems facing the international community with respect to obtaining sufficient humanitarian aid for those adversely affected by the Syrian Crisis. It will also consider why international law is unable to compel wealthy nations to contribute humanitarian aid, by examining the limitations of the novel concept of Responsibility to Protect. Through this discussion it will become evident that international law is currently unequipped to protect second-generation human rights in the context of extraordinary crises akin to the Syrian Refugee Crisis. In order for future displaced populations to fully realize their secondgeneration human rights, international law must respond to the deficiencies highlighted in this note. II, THE SYRIAN CIVIL WAR The Syrian Civil War began in March 2011 as a dispute between the government of Bashar al-Assad and Syrian citizens dissenting from his regime. …

52 citations


Journal Article

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TL;DR: In this article, the influence of procedural justice on popular legitimacy is analyzed and two models of popular legitimacy are developed and contrasted in a national survey of the American public, and their validity is tested using the results of a survey conducted by the University of Southern California.
Abstract: When legal authorities evaluate the court, their focus has traditionally been upon the degree to which the courts achieve two distinct objectives: establishing the truth and punishing justly. These two goals are not, of course, unrelated, since establishing the truth is often viewed as a precursor to determining just punishments. A first concern of the system is with using the courts to draw upon investigative reports and evidence presented during trials to establish the facts of the case, that is, to determine as well as possible what actually happened. These facts in turn address the second concern of the courts: justly punishing wrongdoing. Hence, establishing truth and achieving substantive justice in punishment are two goals of the courts and are central to their evaluation by legal authorities and scholars. To determine how well the courts achieve these objectives, scholars examine the frequency of erroneous verdicts (1) and punishments departing from objective standards of substantive justice. (2) A parallel social science literature considers the role of perceptions--about the degree to which court proceedings establish truth and deliver substantive justice--on public support for the courts. (3) This literature considers the views of members of the public about the frequency of inaccurate verdicts, (4) and the degree to which judicial punishments depart from public perceptions about substantive justice. (5) These public views are then typically connected to the popular legitimacy of the courts. This literature considers the influence of these issues upon public perceptions rather than evaluations of objective reality. Two models of popular legitimacy are developed and contrasted in this analysis. Their validity is then tested using the results of a national survey of the American public. The first model links popular legitimacy to the attainment of the goals of establishing truth and punishing justly. The courts are expected to be viewed as legitimate to the degree that they achieve these objectives. This goal-based model is contrasted with a second model, one which focuses upon the perceived fairness of court procedures. The second model argues that by exercising legal authority through procedures that people see as fair, the courts gain legitimacy and popular support from the public. This model is based upon the now substantial empirical literature linking popular legitimacy to public judgments about the procedural justice of the courts. (6) Beyond examining the influence of perceptions of procedural justice on popular legitimacy, this analysis will contrast two arguments about why procedural justice might be important in shaping popular legitimacy. The first argument is that the public views about the use of fair procedures are linked to the attainment of truth and substantive justice. From this perspective people's widely demonstrated interest in the fairness of judicial procedures supports a goal attainment perspective on popular legitimacy. People use information about the fairness of court procedures to estimate the likelihood that the courts have determined the truth and punished justly. An alternative model suggests that procedural justice is not influential because the public connects the use of fair procedures to the establishment of truth and/or the attainment of substantive justice. Rather, the influence of procedural justice is linked to relational mechanisms linked to the enactment of procedural justice. The relational model argues that people value the use of fair procedures because those procedures carry messages of status and inclusion which reinforce people's identification with legal institutions and authorities and support their feelings of inclusion and status in the community. This then leads to high self-worth and favorable self-esteem. When people can present their concerns to judicial authorities and feel that those authorities consider and take account of their concerns, people's identification with law and legal authorities is strengthened. …

19 citations


Journal Article

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TL;DR: The authority to approve an application withdrawal at DEA has historically been vested in the discretion of the Deputy Assistant Administrator for Diversion Control, but a recent Agency case reviewed and reversed a withdrawal denial issued by the DAA/OD, notwithstanding the regulatory absence of a basis for appeal on this ground.
Abstract: IV. Application Cases Under 21 U.S.C. [section] 823(f), the Administrator may deny an applicant's request for a DEA registration if the granting of the registration "would be inconsistent with the public interest." (218) Just as with revocation cases, the government bears the burden of proof to show that it is not in the public interest to grant an application. (219) In order to determine the public interest, the CSA provides that the following five factors must be considered: (1) The recommendation of the appropriate [sjtate licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under [f]ederal or [s]tate laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable [s]tate, [f]ederal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. (220) In practice, the interpretation and application of these five factors in application cases mirrors the application of those factors in revocation cases, discussed supra Part III. (221) Agency precedent has extended the CSA revocation grounds to also constitute bases for the denial of applications under the theory that the law would not require, from the beginning, the granting of a registration that should be revoked. (222) These other separate bases are (1) material falsification in a registration application; (2) conviction relating to a violation of state or federal controlled substance laws; (3) state action against state-issued controlled substance license (or recommendation); and (4) exclusion from participation in Medicare. (223) The Agency has denied applications for registration based on these revocation factors. Once an order to show cause has been issued regarding an application, it may only be withdrawn with the permission of the Administrator. (224) Permission will only be granted upon a showing of good cause or if the withdrawal is in the public interest. (225) While there is no requirement to do so, it is not uncommon for the ALJ to grant a continuance or even a stay of proceedings while the Agency is deliberating over a withdrawal request submitted by an applicant. Although the authority to approve an application withdrawal at DEA has historically been vested in the discretion of the Deputy Assistant Administrator for Diversion Control (DAA/OD), a recent Agency case reviewed and reversed a withdrawal denial issued by the DAA/OD, notwithstanding the regulatory absence of a basis for appeal on this ground. (226) In its final order, the Agency created a new test by which it would evaluate the discretion exercised by the DAA/OD in accepting or rejecting an applicant's request to withdraw an application. In this new, Agency-created right of review, DEA will consider the following factors: (1) the egregiousness of the misconduct established by the record, (227) (2) the extent of government resources that have been expended in the litigation and review of the case, and (3) any potential prejudice to the government's case regarding a registration application that could be filed subsequently on related facts. (228) V. IMMEDIATE SUSPENSION CASES The CSA authorizes the DEA Administrator, upon a finding of "imminent danger to the public health or safety," to immediately suspend a registration "simultaneously with the institution of [administrative] proceedings." (229) The regulations provide that where the Administrator issues an immediate suspension order, that order will be issued contemporaneously with the service of an order to show cause on a registrant and "shall contain a statement of his findings regarding the danger to public health or safety." (230) Unlike an order to show cause proceeding, an immediate suspension order issued by the Administrator is final when issued, is not reviewed by a DEA ALJ, and "continue[s] in effect until the conclusion of [formal administrative] proceedings, including judicial review thereof, unless sooner withdrawn by the [Administrator] or dissolved by a court of competent jurisdiction. …

3 citations


Journal Article

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TL;DR: In this article, the authors identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families.
Abstract: I. INTRODUCTION Change has come to the legal profession. Technology has supercharged the ability of lawyers to conduct lightning-fast legal research; engage in e-discovery; bend time and space by communicating with clients, colleagues, and adversaries scattered throughout the world; and draft hundreds if not thousands of documents with a few key strokes. But just as technology has made lawyering easier, it has also made it easier to provide services that look a lot like lawyering. And the provision of legal services is becoming commodified: carried out by lawyers and nonlawyers alike in a way that is far less expensive than the traditional, "bespoke" model of lawyering. In the words of Clayton Christensen, the legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever. Some lament this phenomenon. Some worry that it signals the end of big law and that it will have ripple effects throughout the legal industry; that it means there will be fewer lawyers and fewer law schools and that the transformation of lawyering will harm the ability of all lawyers to earn a living--not just those in large, white-shoe firms, but also those practicing in small towns and rural America. Others claim that the new modes of providing legal services--websites, mobile applications, do-it-yourself programs--threaten the consumer, who may receive services at a discounted price, yet those services may be of such low quality that they might end up causing more harm than good. (1) Some, like Richard Susskind, embrace this disruption and believe the changes in the legal profession will mean a different role for lawyers in the future. (2) Many assess the impact of these disruptions on the delivery of services to wealthier clients and corporations, who, in many instances, are the only ones able to afford lawyers in the U.S. legal market in the first place. But if Christensen's "Innovator's Dilemma" theory of business disruption is to be believed, true change in the market for the provision of legal services will not come from those serving wealthier clients. Instead, disruption in the legal field will come from those serving individuals of lower income who do not require the type of representation that has become the norm in the celebrated halls of the largest, wealthiest law firms. True disruption is likely to come from those serving the "lower end" of the market: the solo practitioners, legal services lawyers, and "low bono" providers of legal services. It is innovation in these corners of the market where pathbreaking disruption will take place, mostly out of necessity. What is more, it is the low-end of the market that is actually quite robust--that is, there is a desperate need for legal services, just an inability to pay for them. If disruption is indeed coming to the legal services market, and few can doubt that it is, technological innovation, one of the main drivers of this disruption, can serve to widen access to justice in communities desperate for legal assistance--low- to moderate-income communities, the working poor, and the middle class. Christensen's theories of disruption, which will be discussed here, posit that disruptive innovation does not start at the high-end of the market, but rather typically enters the low end and filters its way up, changing the way a particular market segment operates. (3) Most who have bemoaned the disruption occurring in the legal market have pointed out that lawyers for wealthier clients are seeing their profits diminish and their clients demanding more efficient, less expensive services. What we hope to do here is identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families. If Christensen's theories about disruption are to be believed, it is here where true disruption of the legal services profession will occur. …

3 citations


Journal Article

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TL;DR: New York Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 as mentioned in this paper was proposed by Democratic Gov. Andrew Cuomo and passed by 104 to forty-three in the Democratic-controlled assembly and forty-nine to eighteen in the Republican-controlled senate.
Abstract: I. INTRODUCTION The perennial political struggle over gun policy in America typically focuses, for understandable reasons, at the national level. Yet the American political system continues to be a system of federalism, where the states, and state policymaking, shape much of the American landscape. Thus, much attention was focused on President Barack Obama's ultimately unsuccessful effort in early 2013 to press Congress to enact a series of new national gun laws in the wake of the uniquely senseless and brutal slaying of twenty children and six adults at Sandy Hook Elementary School in December 2012. (1) Less recognized, however, was the fact that prolific action at the state level on gun policy exploded in 2013. The purpose of this article is to examine the case of New York--a state that has long been in the forefront of tougher gun laws, (1) and that has, in the minds of some, become a gun owner's nightmare since its enactment of new gun regulations in 2013. But has it? With so much hand-wringing among gun rights activists nationwide about the reputedly adverse effects of stricter gun laws, it is not only useful, but instructive, to examine a place that already has such laws. New York offers a both concrete and contemporary case study of how the relationship between the armed citizen and the government actually functions. As I will argue here, that relationship, while different than that of the majority of states, functions effectively to preserve gun rights in the context of a feasible regulatory scheme. II. THE NEW NEW YORK GUN LAW In January of 2013, the New York State Legislature moved rapidly--too rapidly, said many--to enact a sweeping and tough new set of gun regulations, the New York Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013, at the behest of Democratic Governor Andrew Cuomo. (2) Two events were clear catalysts for this action: the elementary school shooting of twenty children and six adults in Connecticut the previous month, and, less than two weeks later, the murder of two fire fighters in Webster, New York by a man who deliberately set a house fire to draw first responders to the scene to then murder them (two others were injured). (3) Relying on a power provided in the state constitution called a "message of necessity," the Democratic governor was able to rush the bill through the legislature. (4) Since 1938, the state constitution has stipulated that legislation must be presented to the members of the legislature at least "three calendar legislative days" before it can be acted upon--unless the governor certifies that, in his or her opinion, circumstances "necessitate an immediate vote," whereupon the three day rule is waived. (5) While the obvious purpose of the "message of necessity" provision is to address bona fide emergencies, the constitution's language is broad enough to allow governors to define those circumstances as they see fit, and that is how governors have treated this power for decades. (6) After huddling with legislative leaders, the bill was formally presented to both the state assembly and state senate on January 14.7 Both houses rapidly enacted the bill, by a vote of 104 to forty-three in the Democratic-controlled assembly, and forty-three to eighteen in the Republican-controlled senate. (8) Cuomo signed the bill into law the next day, on January 15. (9) Critics from the state's gun community lambasted the bill for its strict new provisions, but also for the rapidity of its passage, charging that the governor was abusing his powers by avoiding hearings and the opportunity for opponents outside of the legislature to make their case. (10) Here, however, Cuomo was doing what New York governors often do, especially with controversial legislation. According to a good government group, Cuomo used messages of necessity twenty-nine times in 2011 (his first year in office), only five times in 2012, and three times in 2013. …

2 citations


Journal Article

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TL;DR: In this article, the authors address the idea of hydrologic connectivity as a climate change issue through a multifaceted approach that looks at many impediments and advantages of adaptive management of water systems throughout the country.
Abstract: I. INTRODUCTION Water is the resource that sustains populations and allows for the growth and expansion of society. Across the nation, from contaminated water sources (1) to depleted reservoirs, (2) conflicts over water supplies are becoming increasingly common. (3) One of the main drivers of these conflicts is the rapidly growing understanding of the effects of climate change on the water cycle. (4) The fact that climate change is affecting our world (5) and consequently our water system is an undeniable truth. (6) The disjointed, and often uncoordinated allocation of water rights across our country (7) is in drastic need of an overhaul in light of the evolving conditions of climate change. In order to fully appreciate all of the challenges and opportunities present in current water allocation regimes, each element of the water system needs to be independently analyzed and adapted to prepare for future changes. Some of the necessary changes and adaptations are easily recognized by the general public, (8) and therefore have seen a more rapid response from regulators aimed at tackling the issues before they cause greater problems for water use. (9) However, full understanding and adaptation to climate change requires an analysis of all elements of the water system and how they are affected by the impacts of climate change. (10) This note will focus on a relatively obscure and unrecognized aspect of the water system--hydrologic connectivity. (11) Due to the (until recently) largely unknown properties of groundwater flow and its connection to surface waters, hydrologic connectivity has been a historically underrepresented element of water law. (12) In order to effectively govern water rights allocations, the entire water system needs to be analyzed in the context of climate change to ensure the preservation of sufficient water for our whole country. There is not enough of this precious resource to let it fall through the gaps of our management systems. We need to adopt a holistic approach to accounting for climate change impacts on every element of the water system in an environment where every drop counts. This note will address the idea of hydrologic connectivity as a climate change issue through a multifaceted approach that looks at many impediments and advantages of adaptive management of hydrologic systems throughout the country. Part II touches on the current understanding of the impacts climate change has and will continue to have on water supplies and provides an overview of the current scope of adapting water rights to climate change. Part III provides an understanding of how hydrologic connectivity has developed as a water management device. Part IV identifies water regimes that have included hydrologic connectivity as a part of their management system and discusses whether these take into account the impacts of climate change. Part V addresses the specific implications of hydrologic connectivity and why this element is necessary to include in the adaptive management of water rights. Finally, Part VI identifies several challenges impeding the inclusion of hydrologic connectivity in adaptive water management systems and provides possible solutions to the problem of implementing such a comprehensive policy. II. CLIMATE CHANGE IMPACTS ON THE WATER SYSTEM The scientific community has finally accepted the human contribution to climate change. (13) The impacts of climate change reach well beyond the common focus of increased temperatures on Earth, and these changes on Earth will impact nearly every aspect of human society over the next century. (14) Further, "[c]hanges in the global water cycle in response to the warming over the 21st century will not be uniform." (15) The changes to the water cycle will require an adaptive approach in order to evolve existing water institutions and policy to fit with climate change: "The likely hydrological effects of climate change will upset settled expectations and require water institutions to adapt. …

2 citations


Journal Article

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TL;DR: A recent survey of the legal analysis of the Second Amendment right to keep and bear arms can be found in this article, where the authors present an updated look at the ongoing legal battle over the second amendment in the lower courts.
Abstract: I. INTRODUCTION The Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) settled several important controversies concerning the Second Amendment right to keep and bear arms. (3) They also left many vital questions unanswered. Struggling with these unresolved issues, lower courts have produced a large and continually growing volume of decisions about the Second Amendment in recent years. In an article published in 2012, I described a surprising trend in the lower court decisions. (4) "Justice Antonin Scalia's majority opinion in Heller heavily emphasized historical investigation of the original meaning and traditional understandings of the right to keep and bear arms." (5) The Heller majority "also viewed the right in categorical terms, suggesting that courts should try to clearly demarcate the types of guns, people, and activities protected" by the Second Amendment. (6) While attempting to follow the Supreme Court's lead, the lower courts nevertheless drifted away from such a rigidly historical and categorical approach. They instead favored a more flexible, pragmatic sort of analysis, enabling them to weigh the burdens imposed by legal limits on firearms against the public policy concerns motivating such restrictions. (7) The emerging consensus in the lower courts was that constitutional challenges to gun laws should be evaluated under an intermediate scrutiny approach that was "highly deferential to legislative determinations and [resulted in] all but the most drastic restrictions on guns being upheld." (8) Historical analysis had "taken a backseat" to consideration of contemporary public policy implications. (9) I argued that this result was both inevitable and commendable. It was an unavoidable result of the fact that "historical inquiries are extremely difficult and do not produce determinate answers to the types of detailed questions" raised by the array of constitutional challenges being brought against a wide variety of gun laws. (10) The courts' cautious, sensible approach to these challenges deserved praise for giving appropriate deference to legislative decisions, respecting the wide variation in attitudes toward and experience with guns in different parts of the country, and being consistent with the American public's general consensus that the right to keep and bear arms should not preclude strong legal regulation of the possession and use of guns. (11) Moreover, the lower courts' approach had "the simple virtue of being candid," because it allowed judges to be honest and open about the policy calculus underlying their decisions, rather than pretending that historical analysis alone dictated the outcome of cases. (12) Gun rights advocates essentially agreed with that assessment of the lower courts' approach, although they strongly condemned the phenomenon rather than praising it. (13) They have begged the Supreme Court to take another step into the Second Amendment fray in order to provide additional guidance to "rectify the lower courts' widespread, determined resistance to enforcing the enumerated, fundamental constitutional right to keep and bear arms." (14) To date, they have been unsuccessful, as the Supreme Court has denied certiorari petitions in a string of cases concerning the right to keep and bear arms. (15) This Article provides an updated look at the ongoing battle over the Second Amendment in the lower courts. To some extent, the situation is much the same as it was when I last surveyed this field in 2012. (16) Judges have generally continued to apply a form of intermediate scrutiny that is very deferential to reasonable legislative determinations about what restrictions on guns address legitimate public safety concerns. (17) At the same time, they have moved toward integrating more historical analysis into their approach to Second Amendment issues. (18) History often will not provide any clear answers to modern Second Amendment questions, but courts are increasingly making efforts to glean whatever insight may be drawn from historical reflection. …

1 citations


Journal Article

[...]

TL;DR: The De Bour test remains in effect just as strongly today as it was when first decided over thirty years ago, and the Court of Appeals continues to faithfully apply this standard when deciding cases based on street encounters between the police and private citizens as mentioned in this paper.
Abstract: I. INTRODUCTION To preserve a safe society and keep crime at a minimum, it is well-settled in both federal and New York case law that, in some situations, police have the authority to question, detain, search, or arrest individuals. The search and seizure provisions of the New York State Constitution and the federal Constitution are identical: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (1) However, the United States Supreme Court and the New York State Court of Appeals long ago began carving out differing interpretations of search and seizure rights and how broadly to extend those rights to private citizens. Both courts have sought to balance the need to maintain a safe society with the need to uphold the constitutional rights of its citizens, as search and seizure situations naturally lend themselves to a tension between law enforcement interests and an individual's privacy. The Court of Appeals has long recognized that the New York State Constitution provides more protection to citizens in search and seizure cases than the federal Constitution does. (2) Since deciding People u. De Bour (3) in 1976, the Court of Appeals has maintained a strict construction and application of that standard, resisting attempts to allow courts more latitude in deciding police encounter cases through consideration of other factors. (4) In doing so, the court has developed a wide body of decisions interpreting the state constitution and state law, and expanded considerably the reservoir of independent state constitutional cases in New York. The De Bour test remains in effect just as strongly today as it was when first decided over thirty years ago, and the Court of Appeals continues to faithfully apply this standard when deciding cases based on street encounters between the police and private citizens. (5) II. THE UNITED STATES SUPREME COURT STANDARD FOR STOPS AND FRISKS: TERRY V. OHIO In Terry v. Ohio (6) in 1968, the United States Supreme Court enumerated the federal standard for briefly stopping and searching (commonly known as a "stop and frisk") individuals suspected by police of engaging in some criminality. (7) In that case, the on-street encounter between police and a private citizen, Terry, occurred when an officer on patrol duty observed Terry and another man walking down the sidewalk. (8) The men were walking back and forth and looking at a storefront window, eventually joined by a third man. (9) Despite the hour of 2:30pm, the officer became suspicious and began keeping a closer eye on Terry, concerned they were planning a robbery by "casing" the storefront window. (10) "Deciding that the situation was ripe for direct action," (11) the officer approached the group and asked for their names, and then proceeded to physically grab Terry and pat him down. (12) He felt a pistol in Terry's front coat pocket, and the officer removed Terry's coat before patting down and arresting the other two men. (13) Terry was later convicted for carrying a concealed weapon. (14) Chief Justice Warren wrote for the majority and framed the issue as whether, given all the circumstances, Terry's Fourth Amendment rights were violated by an unreasonable search and seizure. (15) Interestingly, he began this analysis by setting out the policy arguments for both those in favor of stopping and frisking suspicious persons and those concerned about the personal privacy of citizens. (16) Rejecting the "all-or-nothing" approach advocated by both sides, Chief Justice Warren focused on the reasonableness, in all circumstances, of the government's invasion of personal privacy, and to what extent that privacy was invaded. …

1 citations


Journal Article

[...]

TL;DR: State constitutional protections for free-exercise of religion have been studied in the context of state constitutional case law as discussed by the authors, with the focus on the role of state courts in the federalist system.
Abstract: I. Introduction For decades, the United States Supreme Court stood as a national defender of the free exercise of religion. In the 1960s, the Court was unflinchingly adamant that "[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation," (1) and reviewed any burden on religion through the searching inquiry of strict scrutiny. (2) However, in 1990 the Court abruptly turned its back on the Free Exercise Clause in Oregon u. Smith. (3) The Court refused to acknowledge the precedent of the 1960s and 1970s for what it was, and lowered the standard of review to mere rational basis for facially neutral, generally applicable legislation, regardless of the burden it placed on a religious entity. (4) The removal of federal protections still allows state courts to adopt the federal pre-Smith tests through the use of their state constitutions. Even by the time Smith was decided, many state courts had "rediscovered] [their] state constitutions" and were becoming more and more accustomed to the role of state courts in the system of "New Federalism" (5) in place following the Supreme Court's decision Michigan v. Long. (6) Some state courts immediately transitioned and quickly built a body of state constitutional case law providing heightened protections for free exercise. (7) Others were plunged into a state of uncertainty, and would not define the protections of religion for decades. (8) It is the purpose of this article to articulate the state of state constitutional protections for free exercise of religion after Oregon v. Smith. The focus will start on the history of religious protections federally and will analyze the underlying rationale of the federal precedent. It will then analyze the role of state courts in the federalist system and describe how other state courts have interpreted constitutional provisions that mirror the strengthened language in New York State Constitution article I, section 3. Ultimately, it is concluded that Smith should be scrutinized by state courts, legislatures, and practitioners, and that these individuals and entities can and should employ a number of methods to restore the historic level of protection for religious liberties. II. The Federal History and Traditions The history of the Supreme Court's handling of the First Amendment's Free Exercise Clause is somewhat varied, although over the years certain trends emerge. In the late nineteenth century, the Court rejected two free exercise challenges to laws that directly targeted polygamy. The cases were heard over a decade apart, with the first, Reynolds v. United States, (9) decided in 1878, and the second, Davis v. Beason, (10) decided in 1890. In both cases, a unanimous Supreme Court upheld statutes criminalizing the Mormon practice. (11) In Beason, Justice Field drew parallels between bigamy and the practices of human sacrifice and sati (widow burning). (12) The Court ultimately dispelled with the free exercise challenge stating, "[the crime of bigamy] is not the less odious because [it is] sanctioned by what any particular sect may designate as 'religion.'" (13) In the decades that followed the Mormon polygamy cases, the Court struck similar chords with regard to free exercise. In United States v. Schwimmer, (14) the Seventh Circuit Court of Appeals held against a Hungarian-born Quaker, who in her application for citizenship, claimed that she "would not take up arms personally" in defense of the United States. (15) Her application was subsequently denied, and she eventually appealed to the Supreme Court. (16) A divided Court upheld the statute, with Justice Holmes dissenting. (17) Holmes, joined by Justice Brandeis, suggested that "many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount." (18) While glimmers of hope occasionally shone in an occasional dissent, (19) heightened protections for free exercise were not fully articulated until the mid-twentieth century. …

1 citations