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Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry

ConLawNOW

This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.

Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst

ConLawNOW

The utility of state private enforcement statutes restricting abortion in Texas and other states is worthy of close scrutiny. Placing private enforcement in historical context aids in understanding when it may be a sustainable strategy. First, the strategy of involving the populace in the enforcement of legislative mandates has a long history in the United States. Self-help is a necessity where law enforcement is not equipped to prevent and respond to every call for assistance. Citizen’s arrest, posse comitatus, and mandatory reporting of misconduct by citizens, including professional misconduct, all involve private action for the common good in state and …

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman

ConLawNOW

Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Con Law Center Articles and Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country.

There is an easier way. The Supreme Court has recently reaffirmed its support for a …

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Rhetoric And Nostalgia In The Criminal Justice Reform Movement, Michael Gentithes

ConLawNOW

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an element of historical …

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer such an historical …

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the District …

Symposium: Pandemics And The Constitution: Tiered Scrutiny In A Pandemic, Jeffrey D. Jackson

ConLawNOW

During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

Masterpiece Cakeshop: A Formula For Legislative Accommodations Of Religion, Matthew A. Brown

Akron Law Review

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs.

In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado …

Felony Disenfranchisement & The Nineteenth Amendment, Michael Gentithes

Con Law Center Articles and Publications

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes

Con Law Center Articles and Publications

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …

Lockett Symposium: For Sandra Lockett, Anthony G. Amsterdam

ConLawNOW

Tony Amsterdam, lead counsel for Sandra Lockett in the U.S. Supreme Court case Lockett v. Ohio, offers his reflections on the case.

Lockett Symposium: Lockett V. Ohio And Its Subsequent Jurisprudence: Between Law And Politics, Cynthia Boyer

ConLawNOW

The death penalty raises serious questions regarding the unequal and arbitrary application of the law since the death penalty exceeds the threshold of law and relates to arguments beyond it, among which there are several fundamental political elements. The advent of the neoliberal revival of the 1970s, first as a new ideology emphasizing the value of free market competition and then as a policy model and practice of government, has had a significant impact on the consideration of individuals within society. The Lockett v. Ohio rulingis part of this particular context, setting the stage for the societal mutation toward a …

The End Of Miller's Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Con Law Center Articles and Publications

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority …

Book Review: Dershowitz On Presidential Impeachment: An Analysis Of The Case Against Impeaching Trump, Michael Conklin

ConLawNOW

This is a review of Alan Dershowitz’s 2018 book, The Case Against Impeaching Trump. Because the Constitution provides little guidance on presidential impeachment, the issue is often interpreted based on political party affiliation. Dershowitz, a strong Hillary Clinton supporter, provides a neutral examination of the issue. This review contains analysis of the current state of impeachment efforts, Dershowitz’s arguments against impeachment, and a critique of his proposed “shoe on the other foot” test.

Introduction To The "Lockett V. Ohio At 40 Symposium": Rethinking The Death Penalty 40 Years After The U.S. Supreme Court Decision, Margery B. Koosed

ConLawNOW

Professor Koosed provides an introduction to the symposium on the fortieth anniversary of the U.S. Supreme Court’s decision in Lockett v. Ohio, which discusses the backstory and import of the case. The decision in Lockett laid the framework for narrowing application of the death penalty by overturning Ohio’s 1974 era death penalty law, and heralding the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).

Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier

ConLawNOW

This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the Supreme Court reviewed these …

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led …

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year …

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.

Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner

ConLawNOW

Relying on contemporary historical-institutionalist literature concerning processes of American political development, this article argues that the nebulous status of religious rights in the United States is largely a recent phenomenon—the result of one coalition (centered around rights protections for the LGBTQ community) growing and making important strides at the same time that a separate "religious rights” coalition attempts to push beyond a disorienting critical juncture. How long this state of intercurrence will persist, and how it will be resolved, are unresolved questions.

Book Review: James Duane, You Have The Right To Remain Innocent: What Police Officers Tell Their Children About The Fifth Amendment, Cecily J. Mullins

ConLawNOW

In this essay, the student author reviews the book You Have the Right to Remain Innocent by James Duane, which emphasizes the inherent risks of speaking to the police, regardless of whether or not you have something to hide.

Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence, Mirko Bagaric, Sandeep Gopalan

Akron Law Review

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights. Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and …

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …

The Death Penalty And Justice Scalia's Lines, J. Richard Broughton

Akron Law Review

In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

Finding Justice, Laurie L. Levenson

ConLawNOW

In this essay memoralizing remarks presented on Constitution Day, Professor Laurie Levenson reflects on her transition from federal prosecutor to defense attorney as founder of Loyola Law School’s Project for the Innocent. She recounts the stories of two clients freed by the work of the Project. She then discusses how this work revealed blind faith in the Constitution is not enough to ensure that only the guilty are convicted. We need to do better. Levenson argues that we need to realize that constitutional rights only protect individuals if both prosecutors and defense lawyers want those rights to work. A prosecutor …

Who Amended The Amendment?, John Olsson

ConLawNOW

The purpose and intent of the Sixth Amendment of the US Constitution has been repeatedly distorted by textualist misinterpretation, orchestrated by elements of the judiciary more concerned with preserving the power of government than the rights of individual defendants. As a result, it is hard to know what the Amendment stands for, since it has been successively re‑interpreted and, effectively, amended for at least the past 80 years and possibly longer. The author argues that it is time for courts to return to the spirit of the laws that actuated the Bill of Rights over two hundred years ago, and …