Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
-
- Pepperdine Law Review (4)
- Journal of the National Association of Administrative Law Judiciary (3)
- Touro Law Review (3)
- All Faculty Scholarship (2)
- Indiana Journal of Law and Social Equality (2)
-
- AARON N TAYLOR (1)
- Aaron J Shuler (1)
- Abraham Z Melamed (1)
- Adam Lamparello (1)
- Andrea Armstrong (1)
- Andrew T. Hyman (1)
- Articles (1)
- Ayriel Bland (1)
- Barry Law Review (1)
- Bertrall L Ross (1)
- Casey Scott McKay (1)
- Catherine L Carpenter (1)
- Charles H. Baron (1)
- Christopher S. Elmendorf (1)
- Corey A Ciocchetti (1)
- Daniel M Braun (1)
- Derek R VerHagen (1)
- Eric H Schepard (1)
- Francine Banner (1)
- George B. Crawford (1)
- Indiana Law Journal (1)
- Jacob M Reif (1)
- James G. Pope (1)
- Joe Custer (1)
- Law Faculty Publications (1)
- Publication Type
- File Type
Articles 31 - 52 of 52
Full-Text Articles in Entire DC Network
Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer
Joe Custer
This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.
Reimagining Merit As Achievement, Aaron N. Taylor
Reimagining Merit As Achievement, Aaron N. Taylor
AARON N TAYLOR
Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …
Clear Depictions Promote Clear Decisions: Drafting Abortion Speech-And-Display Statutes That Pass First And Fourteenth Amendment Muster, Ryan J. Pulkrabek
Clear Depictions Promote Clear Decisions: Drafting Abortion Speech-And-Display Statutes That Pass First And Fourteenth Amendment Muster, Ryan J. Pulkrabek
Ryan J Pulkrabek
Several states have passed legislation requiring physicians to take, display, and describe an ultrasound to their patients who are seeking an abortion. These statutes have been challenged under both the Fourteenth and First Amendments because the statutes place burdens on women who seek abortion and compel physician speech. Courts are divided on these questions and state legislatures need guidance as they consider reform. This Article proposes a model "speech-and-display" statute that is both consistent with the Constitution and good public policy. This model statute is designed to protect the mental health of patients and the life of the unborn by …
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Jacob M Reif
No abstract provided.
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
Pepperdine Law Review
After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …
Constitutional Considerations: Government Responsibility And The Right Not To Be A Victim , Richard L. Aynes
Constitutional Considerations: Government Responsibility And The Right Not To Be A Victim , Richard L. Aynes
Pepperdine Law Review
Within a democratic society, citizens are provided with certain rights and liberties. Among those rights and liberties is the right not to be a victim. In this article, the author examines and analyzes the growing concern for the protection of victims of crimes. Recent legislative enactments have been designed to alter the role of the victim in the civil and criminal justice systems by defining and implementing a series of "victims' rights." The author concludes by recognizing that one of the most important duties of government is to provide for the physical safety of those within its jurisdiction. To implement …
Equal Protection And The New Rational Basis Test: The Mentally Retarded Are Not Second Class Citizens In Cleburne, Gordon W. Johnson
Equal Protection And The New Rational Basis Test: The Mentally Retarded Are Not Second Class Citizens In Cleburne, Gordon W. Johnson
Pepperdine Law Review
Recently, the Fifth Circuit held that classifications involving the mentally retarded were quasi-suspect and should be reviewed under a heightened scrutiny analysis. The Supreme Court reversed that holding but granted the retarded a remedy by applying a more genuine scrutiny under the rational basis test. The Court's decision in City of Cleburne, Texas v. Cleburne Living Center, Inc. raises the question whether the Court intends to apply an increased level of scrutiny under the rational basis test or whether this case merely represents another ad hoc decision made on the horns of a dilemma. This Note discusses the uncertain impact …
Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland
Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland
Pepperdine Law Review
No abstract provided.
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
Daniel M Braun
The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
Aaron J Shuler
Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …
Suspect Classification And Its Discontents, Susannah W. Pollvogt
Suspect Classification And Its Discontents, Susannah W. Pollvogt
Susannah W Pollvogt
Suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. But neither doctrine finds firm footing in precedent or theory. Rather, a close examination of the United States Supreme Court’s equal protection jurisprudence reveals these doctrines as historically contingent and lacking in any principled justification. But rather than disregard the contributions of these cases altogether, this Article mines that same body of law not for the discrete doctrinal mechanisms developed in each case, but …
The Due Process Plank, Andrew T. Hyman
The Due Process Plank, Andrew T. Hyman
Andrew T. Hyman
The Republican Party’s national platform of 1860 is useful for interpreting the Fourteenth Amendment of the U.S. Constitution, which was written just six years later by a Republican-controlled Congress. However, the platform is frequently misunderstood. The due process plank of the platform is often portrayed as supporting the doctrine called substantive due process, but a close look at the platform shows that it did not actually support that doctrine. The due process plank aimed to protect liberty in free federal territories, rather than in areas like the District of Columbia where substantive due process would have applied equally. Congress largely …
Immoral Waiver: Judicial Review Of Intra-Military Sexual Assault Claims, Francine Banner
Immoral Waiver: Judicial Review Of Intra-Military Sexual Assault Claims, Francine Banner
Francine Banner
This essay critiques the application of the Feres doctrine and the policy of judicial deference to military affairs in the context of recent class actions against government and military officials for constitutional violations stemming from sexual assaults in the U.S. military. The Pentagon estimates that 19,000 military sexual assaults occur each year. Yet, in 2011, fewer than two hundred persons were convicted of crimes of sexual violence. In the face of such pervasive and longstanding constitutional violations, this essay argues that the balance of harms weighs heavily in favor of judicial intervention. The piece discusses why, from both legal and …
Teaching The U.S. V. Windsor Same Sex Marriage/Equal Protection/Doma Case, Corey A. Ciocchetti
Teaching The U.S. V. Windsor Same Sex Marriage/Equal Protection/Doma Case, Corey A. Ciocchetti
Corey A Ciocchetti
The same sex marriage cases are proving to be the hottest of topics during a very eventful Supreme Court term. The U.S. v. Windsor case is a fitting vehicle to cover the topic. These slides help tell the story and can be used to teach the case as well as important constitutional law issues such as: (1) equal protection, (2) federalism, (3) executive discretion to defend federal laws, (4) incorporation and more.
Against Juvenile Sex Offender Registration, Catherine L. Carpenter
Against Juvenile Sex Offender Registration, Catherine L. Carpenter
Catherine L Carpenter
Against Juvenile Sex Offender Registration Catherine L. Carpenter* Abstract Imagine if you were held accountable the rest of your life for something you did as a child? This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. It is both unremarkable and true that children …
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
Barry Law Review
This article seeks to apply Rogers Smith’s Multiple Traditions thesis to the United States Supreme Court’s treatment of the Fourteenth Amendment to uncover the influences behind its major civil rights decisions. It will argue that liberalism dominates at the Court after mostly, but not completely, shedding its illiberal tendencies. This article will argue that the Court’s focus on intent over impact and its “color-blind” approach to racial classifications in the era of subterranean prejudice and indifference or ignorance to inequality solidifies and perpetuates the hierarchies created by ascriptive forms of Americanism under the Court’s liberal notions. This article will also …
The Origins Of The Privileges Or Immunities Clause, Part Iii: Andrew Johnson And The Constitutional Referendum Of 1866, Kurt T. Lash
The Origins Of The Privileges Or Immunities Clause, Part Iii: Andrew Johnson And The Constitutional Referendum Of 1866, Kurt T. Lash
Law Faculty Publications
This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public …
The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler
The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler
All Faculty Scholarship
This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …
Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal
Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal
All Faculty Scholarship
Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …
Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley
Articles
This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …
The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer
The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer
Christopher S. Elmendorf
The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the …
Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts
Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts
Tina F Botts
Misunderstanding the concept of race as based in biology is the root error of Professor Nancy Leong's recommendation of a switch to "perceived race" in antidiscrimination law in order to protect multiracial persons from illegal racial discrimination. Once race is understood as socio-historically constructed and context-dependent rather than as rooted in biology, antidiscrimination law need only add multiracial persons to the categories of specially protected groups in order to protect multiracial persons from illegal discrimination.