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Sixty years ago political divisions in the United States ran even deeper than today's name-calling showdowns between the left and right. Back then, to call someone a communist was to threaten that person's career, family, freedom, and, sometimes, life itself. Hysteria about the \"red menace\" mushroomed as the Soviet Union tightened its grip on Eastern Europe, Mao Zedong rose to power in China, and the atomic arms race accelerated. Spy scandals fanned the flames, and headlines warned of sleeper cells in the nation's midst--just as it does today with the \"War on Terror.\" In his new book,The Fear Within, Scott Martelle takes dramatic aim at one pivotal moment of that era. On the afternoon of July 20, 1948, FBI agents began rounding up twelve men in New York City, Chicago, and Detroit whom the U.S. government believed posed a grave threat to the nation--the leadership of the Communist Party-USA. After a series of delays, eleven of the twelve \"top Reds\" went on trial in Manhattan's Foley Square in January 1949. The proceedings captivated the nation, but the trial quickly dissolved into farce. The eleven defendants were charged under the 1940 Smith Act with conspiring to teach the necessity of overthrowing the U.S. government based on their roles as party leaders and their distribution of books and pamphlets. In essence, they were on trial for their libraries and political beliefs, not for overt acts threatening national security. Despite the clear conflict with the First Amendment, the men were convicted and their appeals denied by the U.S. Supreme Court in a decision that gave the green light to federal persecution of Communist Party leaders--a decision the court effectively reversed six years later. But by then, the damage was done. So rancorous was the trial the presiding judge sentenced the defense attorneys to prison terms, too, chilling future defendants' access to qualified counsel. Martelle's story is a compelling look at how American society, both general and political, reacts to stress and, incongruously, clamps down in times of crisis on the very beliefs it holds dear: the freedoms of speech and political belief. At different points in our history, the executive branch, Congress, and the courts have subtly or more drastically eroded a pillar of American society for the politics of the moment. It is not surprising, then, thatThe Fear Withintakes on added resonance in today's environment of suspicion and the decline of civil rights under the U.S. Patriot Act.

This chapter contains sections titled: The common law The United States experience The decision in Frye v. United States The codified federal rules of evidence The decision in Daubert v. Merrill Dow 25 The scientific method The “pure opinion” rule The United Kingdom experience The criminal procedure rules 2010, s.33 The law commission consultation paper no. 190

The Supreme Court’s qualified immunity jurisprudence provides little guidance on a central component of the doctrine: the proper sources of “clearly established law.” As a result, lower courts often resort to a restrictive definition of clearly established law, requiring a controlling precedent in the jurisdiction where the violation took place. This formalist approach unmoors qualified immunity from its intended purpose: ensuring that public officials are subject to liability only when they have fair warning about the legality of their conduct. As applied to the First Amendment right to record police, qualified immunity formalism has produced an artificial circuit split. While the Supreme Court has yet to rule on the issue, each of the six federal appellate courts to address the constitutional question has concluded that the First Amendment protects the right of citizens to document the police. In the other circuits, which have remained silent on the matter, trial courts maintain that the right is not clearly established, thereby immunizing law enforcement defendants from liability. Despite the near-nationwide agreement that citizen recording merits constitutional protection, courts generally refuse to consider out-of-circuit decisions in their qualified immunity analyses. This Note critiques qualified immunity doctrine in the context of the First Amendment right to record public police activity, arguing that the formalist approach deviates from the policy considerations undergirding qualified immunity and impedes the development of First Amendment jurisprudence. It proposes a more functional approach to qualified immunity in which a “robust consensus of persuasive authority” suffices to establish federal rights.

Louisiana recently enacted a law requiring a Ten Commandments display in every public school classroom from kindergarten to college. Forty-five years ago, the U.S. Supreme Court ruled that a nearly identical attempt to introduce Christianity into the public schools violated the Establishment Clause-the clause in the U.S. Constitution's First Amendment that requires some degree of separation between church and state. Unfortunately, the U.S. Supreme Court has since reduced the Establishment Clause to a shadow of its former self. It replaced doctrinal tests that protected religious minorities with a history and tradition test that is easily manipulated and that presumes the constitutionality of any longstanding religious practice. It has also developed multiple strategies for dodging establishment claims such as \"secular-washing\"-recharacterizing an inherently religious symbol as secular. However, the U.S. Constitution and the U.S. Supreme Court do not have a monopoly on protecting rights, including the right against establishment. As \"New Judicial Federalism\" highlights, our dual system of government means state constitutions and their establishment clauses provide another layer of constitutional protection. Moreover, state courts are not obliged to interpret their establishment provisions in lockstep with the Supreme Court, even in the rare cases where the text is the same. Accordingly, state courts can and should interpret their establishment provisions independently of federal jurisprudence to provide more robust protection when confronted with laws like Louisiana's. Although the U.S. Supreme Court has all but abandoned religious minorities, state courts need not follow in its footsteps. Even if state courts feel bound to rely on the history and tradition approach, they do not need to ground their analysis in blind acceptance of past practices as the Supreme Court regularly does. Unquestioning reliance on historical practices overlooks that the Establishment Clause sought to break with past practices and that past practices (such as anti-Catholic Protestantism in public schools) do not always live up to constitutional ideals. Instead, state courts can invoke foundational principles such as prohibiting religious favoritism and requiring secular justifications. State-mandated Ten Commandments posters on every public schoolroom wall undermine both principles. Foisting the sacred text of one or two religions onto students of various (or no) faiths epitomizes religious favoritism, and no persuasive secular reason justifies such an imposition.

Most people don't spend much time thinking about the ways that environmental statutes, such as the Endangered Species Act, Clean Air Act, and Clean Water Act, are implemented and enforced. To the extent that they do, they might imagine someone like a bespectacled, clipboard-and-hard-hat-equipped Environmental Protection Agency (EPA) employee visiting industrial facilities to make sure that companies are complying with environmental rules and regulations. That kind of work has, historically, been a key part of environmental enforcement. As the second Trump administration haphazardly works to downsize the federal workforce, many people reasonably worry that offices like EPA's Office of Enforcement and Compliance Assurance will have reduced capacity to hold firms and individuals accountable to environmental laws.

In June 2022, the Supreme Court of the United States overturned The European Court of Human Rights is also expected to decide on several abortion cases. In this paper, the interpretative approaches of both courts are compared. Whereas the U.S. Supreme Court in decided on an originalist approach to the Constitution, the highest European court has always regarded the European Convention on Human Rights as a living instrument. As a result, domestic laws regulating the interruption of pregnancy are seen by the Strasbourg court as interferences with a fundamental right, the right to respect for private life. Although member states of the Council of Europe enjoy a wide margin of appreciation with regard to the circumstances in which abortion will be permitted, its highest court put forward the state's positive obligation to secure pregnant women's right to effective respect for their physical and psychological integrity in several landmark judgments. In this way, it ensures the existence of effective mechanisms in countries with a poor record of implementing the right to a lawful abortion. Albeit at a minimum, the Strasbourg court offers protection, whereas the U.S. Supreme Court no longer does.

As the major election season winds down, Texas is gearing up for the next legislative session. Unfortunately, libraries are very likely to see legislation introduced that will negatively impact the ability to serve patrons. Libraries of all types, more than ever, need all people to be informed citizens and voters, and effective advocates. They must stand up for the rights of all their patrons to access the information they seek. Intellectual freedom is a core value of librarians and library associations like the Texas Library Association. Little's hometown has been ground zero in the fight against censorship in public libraries, and she hopes that their story will inspire people to take action.

In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78 —raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

Protests are woven into the history and social fabric of the United States. Whether the topic involves racial inequity, abortion, police brutality, oil and gas pipelines, war, or allegedly stolen elections, Americans will voice their opposition-occasionally, in frightening or destructive ways. Politicians, in turn, have a history of using their lawmaking power to discourage protest by creating crimes like unlawful assembly, riot, civil disorder, disorderly conduct, trespass, and others. While lawmakers have considerable power to decide what is and isn't legal, they cannot criminalize expression or assembly that the First Amendment protects. But the lines delineating what forms of protest the government can and cannot criminalize are anything but bright. This Symposium Piece aims to clarify how far lawmakers can go in prohibiting protest. It does so by illuminating a notoriously murky area of First Amendment doctrine: overbreadth. The overbreadth doctrine authorizes courts to strike down laws that are written so broadly as to infringe on constitutionally protected expression. Overbreadth concerns are especially acute in laws used to criminalize protests. This Piece makes three significant contributions to overbreadth scholarship. First, it analyzes decades of Supreme Court case law addressing overbreadth claims arising from protests and articulates five features of protest-related laws that generate overbreadth concerns. Second, the Piece surveys statutes that lawmakers and law enforcement officials have used to deter protests and, employing the five features of overbroad laws, examines which statutes present overbreadth concerns. Third, the Piece closes with guidelines for correcting (or eliminating, when appropriate) overbroad protest laws.

In another tumultuous term of the United States Supreme Court in 2022-2023 a series of critical cases implicate instant and forthcoming changes in multiple fronts that collectively shift the national public health law and policy environment.