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Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Faculty Scholarship
The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Faculty Scholarship
This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.
In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Faculty Scholarship
Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …
The Evolution Of Equality In American Law, Gerald Torres
The Evolution Of Equality In American Law, Gerald Torres
Gerald Torres
No abstract provided.
The Evolution Of Equality In American Law, Gerald Torres
The Evolution Of Equality In American Law, Gerald Torres
Gerald Torres
No abstract provided.
Yoder And The Question Of Equality, Laura S. Underkuffler
Yoder And The Question Of Equality, Laura S. Underkuffler
Laura S. Underkuffler
No abstract provided.
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Osgoode Hall Law Journal
This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Faculty Scholarship
No abstract provided.
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Faculty Scholarship
No abstract provided.
Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel
Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception.
In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would …
Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young
Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young
Faculty Scholarship
No abstract provided.
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Faculty Scholarship
No abstract provided.
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
Pepperdine Law Review
A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Pepperdine Law Review
The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.
Reflections On Hines V. Davidowitz: The Future Of Obstacle Preemption, Kenneth W. Starr
Reflections On Hines V. Davidowitz: The Future Of Obstacle Preemption, Kenneth W. Starr
Pepperdine Law Review
No abstract provided.
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Faculty Scholarship
Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …
Cruel And Unequal Punishment, Nita A. Farahany
Cruel And Unequal Punishment, Nita A. Farahany
Faculty Scholarship
This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …
Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii
Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii
Georgetown Law Faculty Publications and Other Works
Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …
Katrina, The Constitution, And The Legal Question Doctrine, Robin West
Katrina, The Constitution, And The Legal Question Doctrine, Robin West
Georgetown Law Faculty Publications and Other Works
In this paper I will not develop the case for constitutionally protected welfare rights - I have tried to do that elsewhere. Instead, I want to explore the tension between what I will take to be at least a plausible account of the state's Constitutional obligations to the poor, and what seems to me as at least equally self-evident, to wit, that no American court will discover and then impose such Constitutional obligations upon recalcitrant state or federal legislators. My conclusion will be pragmatic. I want to urge those who feel likewise regarding the Constitutional obligations of state actors, to …
The Evolution Of Equality In American Law, Gerald Torres
The Evolution Of Equality In American Law, Gerald Torres
Cornell Law Faculty Publications
No abstract provided.
Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles
Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter
Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
In this article, Professor Hunter questions the naturalness and inevitability of the dichotomy in constitutional law between freedom of expression and the right to equality. She places the origin of this doctrinal divergence in the history of American social protest movements in the first half of the twentieth century, which began with ideologically-based claims and shifted to a primary emphasis on identity-based equality claims. During the interim period between World War I and World War I, the wave of seminal First Amendment cases was ebbing and the wave of equality claims was beginning to swell. Close examination of the constitutional …
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
Faculty Scholarship
No abstract provided.
Quo Vadis, Posadas?, William W. Van Alstyne
Quo Vadis, Posadas?, William W. Van Alstyne
Faculty Scholarship
This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.
Yoder And The Question Of Equality, Laura S. Underkuffler
Yoder And The Question Of Equality, Laura S. Underkuffler
Cornell Law Faculty Publications
No abstract provided.
A Preliminary Report On The Bakke Case, William W. Van Alstyne
A Preliminary Report On The Bakke Case, William W. Van Alstyne
Faculty Scholarship
This comment breaks down the variety of opinions in the Bakke case and discusses the immediate implications the decision may have on the academic community.
A Constitution For Every Man, William W. Van Alstyne
A Constitution For Every Man, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Procedural Due Process And State University Students, William W. Van Alstyne
Procedural Due Process And State University Students, William W. Van Alstyne
Faculty Scholarship
This examination seeks to address the problems both universities and students confront regarding the growth of student expression. It is noted that contemporary students sometimes have fewer rights than petty criminals and this article explores the common reasons behind universities’ abbreviated procedures and reconcile those reasons with students’ emerging Fourteenth Amendment rights.