Category Archives: Constitutional Law

Sean F. Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

The U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District injected significant confusion into negotiations over land development approvals. The principal source of this confusion is the majority’s unwillingness to clarify when and how a proposed … Continue reading

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Brannon P. Denning, One Toke over the (State) Line: Constitutional Limits on “Pot Tourism” Restrictions

Among the myriad legal issues confronting states—like Colorado—that are experimenting with the legalization of marijuana, is the need to regulate “pot tourism” by visitors from other states where marijuana remains illegal. In Colorado, the final recommendations from the Amendment 64 … Continue reading

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Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

The right to a jury trial, the presumption of innocence, the social compact between the individual and the State—these are among the weighty interests in our criminal justice system that can be bolstered or undermined through attorney pretrial publicity. The … Continue reading

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Adam M. Hapner, You Have the Right to Remain Silent, But Anything You Don’t Say May Be Used Against You: The Admissibility of Silence as Evidence After Salinas v. Texas

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel … Continue reading

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Marc B. Hernandez, Guilt Without Mens Rea: How Florida’s Elimination of Mens Rea for Drug Possession is Constitutional

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the … Continue reading

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Edward A. Purcell, Jr., Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist … Continue reading

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