Issues to Watch

A Long-Standing Double Jeopardy Exception Is in Jeopardy of Being Overruled by the Supreme Court


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*Emma J. Dorris

I.  INTRODUCTION

The Fifth Amendment to the United States Constitution provides that “no person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”  U.S. Const. amend. V.  This constitutional protection, which prohibits the government from prosecuting individuals twice for the same crime, is known as the Double Jeopardy Clause.  See David Cole & Somil Trivedi, It’s Time to Close a Loophole in the Constitution’s Double Jeopardy Rule, aclu (Sept. 12, 2018, 11:30 AM), https://www.aclu.org/blog/criminal-law-reform/its-time-close-loophole-constitutions-double-jeopardy-rule.

However, almost one hundred years ago, in United States v. Lanza, the Supreme Court upheld the federal prosecution of defendants who had already been tried and convicted in state court for the same crime, holding that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382 (1922).  This has come to be known as the “separate sovereigns” exception and it “allows state and federal prosecutors to bring separate charges for the same alleged crime.”  Cole & Trivedi, supra.  The Supreme Court recently heard arguments on December 5, 2018, for Gamble v. United States, a case that directly challenges the separate sovereigns exception to the Double Jeopardy Clause.  Gamble v. United States, SCOTUSblog, http://www.scotusblog.com/case-files/cases/gamble-v-united-states/ (last visited Jan. 18, 2019). (more…)

Issues to Watch

Voting Rights for the Disabled: The Need for a Clear Standard


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*Christina Araviakis

Recently, voting has become a larger issue in public discourse than it has been in years past, which has made the right to vote increasingly valuable.  See Priya Khatkhate, Taking Away the Vote, A.B.A. J. Mag., Oct. 2018, at 9–10, http://dashboard.mazsystems.com/webreader/57776?page=10.  However, little attention has been given to the lack of a legal standard for determining whether disabled people who are under guardianship or conservatorship should lose their right to vote.  See id.

When Jack Vaile turned eighteen in 2016, he was looking forward to his first opportunity to vote in California.  Id.  During the same year, due to Jack’s cerebral palsy and autism, Lou Vaile, Jack’s father, was granted conservatorship over Jack by a California judge.  Id.  This was meant to help with Jack’s medical decisions.  Id.  However, in the process, the judge also took away Jack’s voting rights.  Id.  Although Jack had cerebral palsy and autism, he used an assistive device to communicate, and he had been doing his research to take part in the primary elections in 2016.  Id.  Jack’s father states, “Jack was really excited about the election process. He had done research. He was totally stoked to vote in the primaries in the election—and then I got this piece of paper in the mail. I was sick. I didn’t even know how to tell him.”  Id.  Like many other people going through the guardianship or conservatorship process, the Vailes did not know that Jack’s voting rights were on the table if conservatorship was granted.  Id. (more…)

Issues to Watch

Scandalous and Immoral Trademarks Are (Almost) In!


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*Reginald Smallwood

Imagine that you are Native American and you are invited to a Washington Redskins (Redskins) game.  Or you are Asian and you are invited to the concert of an Asian-American band called “The Slants.”  Now imagine that you are in the mall and see a mannequin in the Urban Outfitters’ window wearing a t-shirt that says “FUCT.”  Is any one of these phrases more offensive than the others?  Should these word marks be registrable and protected by the United States Patent and Trademark Office (USPTO)?  In Tam, the United States Supreme Court held that the USPTO could not deny registration to disparaging trademarks.  Matal v. Tam, 582 U.S. ___, 137 S. Ct. 1744, 1747 (2017).  Now, the Court has the opportunity to determine if the USPTO can deny registration to scandalous and immoral trademarks.  See In re Brunetti, 877 F.3d 1330, 1335 (Fed. Cir. 2017). (more…)

Issues to Watch

Is Sexting Child Porn?  Maryland Court of Appeals Set to Decide this Term.


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* Shannon Hayden

Legislatures and courts alike have had trouble keeping up with the ever-evolving technological advances in today’s modern world.  Vivek Wadhwa, Laws and Ethics Can’t Keep Pace with Technology, MIT Tech. Rev. (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/.  Technology is developing more rapidly than before, causing gaps between the times that new technology emerges and when laws are actually made to address these changes.  Wadhwa, supra.

In Maryland, this delay in the development of the law has led to an issue that courts around the country are also facing: whether minors, who consensually “sext” other minors by sending photos and videos depicting sexual conduct, are involved in distributing child pornography in violation of state law.  See In re S.K., 186 A.3d 181 (Md. Ct. Spec. App. 2018); see also State v. Gray, 402 P.3d 254 (2017) (upholding the child pornography conviction of a seventeen-year-old boy who sent unsolicited images of his genitals to an adult woman); Teresa Nelson, Minnesota Prosecutor Charges Sexting Teenage Girl with Child Pornography, Am. Civil Liberties Union (Jan. 5, 2018, 11:45 PM), https://www.aclu.org/blog/juvenile-justice/minnesota-prosecutor-charges-sexting-teenage-girl-child-pornography.  The Maryland Court of Appeals will decide on this issue next year when it hears arguments in the case of In re S.K. (more…)

Issues to Watch

The Insidious Slippery Slope of Our Freedom of Speech and Expression


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*Sumbul Alam

Heightened surveillance of noncitizens in the United States has been increasing since the 1980s.  See Anil Kalhan, Immigration Surveillance, 74 Md. L. Rev. 1, 11–16 (2014).  Throughout the decades, citizens and noncitizens at the border have been subjected to more intrusive questioning, as well as searches and seizures of computer hard drives and other electronic storage media with limited, if any, judicial oversight.  Id. at 16–17.  This may promulgate extreme bias of the enforcement agent.  See id. at 20–25.  For example, soon after the 2001 terrorist attacks, the Federal Bureau of Investigation (FBI) initiated a program of voluntary interviews for thousands of nonimmigrant Arab and Muslim men; subsequently, in 2002, the Attorney General required noncitizens from specific countries which were predominately Arab or Muslim to register in a national database.  Id. at 20. (more…)