Digital Commons Network^™

Privacy: Pre- And Post-Dobbs, Rona Kaufman

Law Faculty Publications

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s …

Foreword: A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, Rona Kaufman

Law Faculty Publications

One hundred years have passed since (white) women attained the right to vote. In the century since the Nineteenth Amendment was ratified, American women have transitioned from an existence as mere objects of history to becoming active subjects of history. In 2019 and 2020, many programs and conferences were organized to celebrate the achievements of America's women and commemorate the 100th anniversary of women's suffrage. The Section on Women in Legal Education hosted a program at the January 2020 American Association of Law Schools (AALS) Annual Meeting titled, “A Century Since Suffrage: How Did We Get Here? Where Will We …

Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London

Law Faculty Publications

AI systems are powerful technologies being built and implemented by private corporations motivated by profit, not altruism. Change makers, such as attorneys and law students, must therefore be educated on the benefits, detriments, and pitfalls of the rapid spread, and often secret implementation of this technology. The implementation is secret because private corporations place proprietary AI systems inside of black boxes to conceal what is inside. If they did not, the popular myth that AI systems are unbiased machines crunching inherently objective data would be revealed as a falsehood. Algorithms created to run AI systems reflect the inherent human categorization …

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Law Faculty Publications

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …

Soft Supremacy, Corinna Barrett Lain

Law Faculty Publications

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …

Republicanism And Natural Rights At The Founding, Jud Campbell

Law Faculty Publications

Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant …

Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias

Law Faculty Publications

In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …

Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Law Faculty Publications

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

Justice For All: Reimagining The Internal Revenue Service, David J. Herzig

Law Faculty Publications

The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is …

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Law Faculty Publications

Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida …

Partial Unconstitutionality, Kevin C. Walsh

Law Faculty Publications

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …

Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson

Law Faculty Publications

Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has “impliedly” foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new “preempting” federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish.

It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, …

Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff

Law Faculty Publications

No abstract provided.

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers, Jr.

Law Faculty Publications

Part I of this brief essay discusses Dred Scott and the Court's acceptance of tiered citizenship and tiered personhood. Part II discusses the Reconstruction Amendments as a response to tiered citizenship and tiered personhood. Part III notes two issues-felon disfranchisement and the treatment of detainees in the War on Terror-that help illuminate tiered citizenship and tiered personhood and help us evaluate the conditions under which citizenship and personhood rights may be restricted without creating tiers of citizenship and tiers of personhood.

Tucker’S Rule: St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

Law Faculty Publications

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond the ordinary memorials of political and military glory." Throughout the Commentaries, Story generously quoted Chief Justice Marshall's great nationalist opinions in McCulloch v. Maryland, Gibbons v. Ogden, and Cohens v. Virginia and used them to construct a thoroughly nationalist reading of the federal Constitution. Along the way, Story seemingly dismantled prior states' rights interpretations of federal power, particularly St. George Tucker's …

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Review Of David E. Bernstein's "You Can't Say That!--The Growing Threat To Civil Liberties From Antidiscrimination Laws", Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

The Balance Of Forces And The Empire Of Liberty: States' Rights And The Louisiana Purchase, Robert Knowles

Law Faculty Publications

This Article challenges the conventional wisdom about the Louisiana Treaty and argues that it was unconstitutional. As many students of history know, President Jefferson had serious misgivings about its constitutionality, which scholars have dismissed as driven by an overly strict construction of the Constitution. The Article concludes that Jefferson's concerns were in fact motivated primarily by respect for federalism principles.

This Article identifies and discusses the underlying conflict between two radically different visions of federalism. While Jefferson s Republicans believed that the incorporation of new states in the West would merely expand the Constitutions form of government to more territory, …

Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Unmasking Federalism, Carl W. Tobias

Law Faculty Publications

Judge John Noonan has astutely chronicled law and society over a half century. He was a professor for twenty-five years, authoring such classics as Persons and Masks of the Law, and has rendered distinguished service since 1985 on the United States Court of Appeals for the Ninth Circuit.Thus, the publication of Narrowing the Nation's Power: The Supreme Court Sides with the States ("Narrowing') would be important, even if the monograph were only a venerated scholar's reflections on his long, rich experience. This book, however, is a provocative critique that meticulously and incisively exposes the Court's new federalism and separation of …

Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson

Law Faculty Publications

No abstract provided.

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.

Peer Harassment--Interference With An Equal Educational Opportunity In Elementary And Secondary Schools, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Islamic And American Constitutional Law: Borrowing Possibilities Or A History Of Borrowing?, Azizah Y. Al-Hibri

Law Faculty Publications

Islam is commonly viewed in the West as being incompatible with democracy. It is also viewed as an "Oriental" religion that has spawned violence and encouraged human rights violations. Because of the historical interaction between the West and Islam, the United States has recently been supporting efforts to export its democratic principles and human rights values to Muslim countries. In this context, the question of constitutional borrowing gains special significance. To assess the possibilities of constitutional borrowing between Islamic countries and the United States, it is important to first discuss the historical relation between the two, as well as between …

Montana Fight Over Women's Rights, Carl W. Tobias

Law Faculty Publications

Report of abortion protests that took place in various locations around Montana.