Law Commons^™

Faq On The New York State Equality Amendment, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Adopted in 1938, the New York State Constitution’s equality protections fall far short of a modern notion of equality that would protect the rights of all New Yorkers. Legislation currently pending in the New York Legislature would update the state’s constitution by prohibiting forms of discrimination that are currently unrecognized by the law.

Smith's Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer

Faculty Publications

Part I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies …

The Pennhurst Doctrines And The Lost Disability History Of The "New Federalism", Karen Tani

All Faculty Scholarship

This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court decision recognized a constitutional “right to habilitation” and ordered the complete closure of an overcrowded, dehumanizing facility. For people concerned with present-day mass incarceration, the case retains relevance as an example of court-ordered abolition.

For those outside the world of deinstitutionalization and disability rights, however, …

Brief Of Professors Michael Knoll And Ruth Mason As Amici Curiae Supporting Petitioners In National Pork Producers Council V. Ross, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

The district court erred when it concluded that because Proposition 12 applies only to in-state sales, it could not be extraterritorial. On the contrary, because California regulates pork production based on domestic, inbound, and outbound sales, its regulation is internally inconsistent and overbroad. As an obligation of interstate comity, this Court has understood extraterritoriality to require the basis of regulation to be internally consistent. A regulation is internally consistent when, if every state regulated using the same nexus as the challenged state, cross-border commercial activity would not be regulated by more than one state. Proposition 12 cannot meet this basic …

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Faculty Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Debating When Clarence Thomas Should Recuse Himself Is The Wrong Argument, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

Universalizing Fraud, Parmida Enkeshafi

Duke Journal of Constitutional Law & Public Policy Sidebar

The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.

Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland …

A Leak? The Supreme Court Tipped Its Hand On Abortion Long Ago, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Era And Abortion Talking Points, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The Supreme Court has voted to strike down Roe v. Wade in a leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent protecting the fundamental right to abortion. If this draft indeed represents the majority opinion of the Supreme Court, it will be a monumental setback for women's rights and signals that many of the most basic protections in our society, starting with reproductive rights, are under threat.

What Comes Now? Religious Liberty And The End Of Roe, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

New York, NY – The Law, Rights, and Religion Project at Columbia Law School, an academic think tank that conducts research and policy analysis on the complex ways in which religious liberty rights interact with other fundamental rights, has a number of materials that can help to shed light on three key issues around the possible end of Roe v. Wade in light of the draft Supreme Court opinion released yesterday.

A Sixth Amendment Inclusionary Rule For Fourth Amendment Violations, Scott W. Howe

Connecticut Law Review

Early in the tenure of Chief Justice Roberts, a five-Justice majority of the Supreme Court signaled that it was ready to consider eliminating the exclusionary rule as a remedy for Fourth Amendment violations. The central concern was that, even after decades of limiting the rule through new exceptions, it purportedly lacked utility in balancing protections against the competing dangers of crime and police abuse, the only rationale on which it has been grounded in the modern era. That existential reappraisal never openly occurred, and the exclusionary rule, in further reduced form, still survives. Yet, given the Court’s recent conservative shift, …

Inadequate Healthcare, Inadequate Recovery: Exploring The Challenges Of Compensating Pregnant Inmates Deprived Of Adequate Healthcare At State Prisons, Katherine Mckeon

Connecticut Law Review

Prenatal healthcare services available to pregnant inmates in state prisons are wholly inadequate. Despite the glaring shortcomings of state prisons’ healthcare services, there has still only been limited attention paid to rectifying the problem. This lack of attention is problematic for many reasons, but especially because the number of women in prisons has increased in recent decades and inmates who are pregnant when they arrive to prison face conditions that risk extreme health condition.

Not only are pregnant inmates subjected to inadequate healthcare services, but they also have very few legal remedies available to them when they have been deprived …

Evaluating The Constitutionality Of Marital Status Classifications In The Regulation Of Posthumous Reproduction And Postmortem Sperm Retrieval, Alison Jane Walker

Connecticut Law Review

In Eisenstadt v. Baird, the Supreme Court held that a state law prohibiting the provision of contraceptives to unmarried persons violated the Fourteenth Amendment’s rational basis test because of the disparate treatment it afforded to married and unmarried individuals. Eisenstadt stands for an individual’s right to make their own procreative decisions, free from governmental intrusions which impose arbitrary classifications on privacy and freedom. This Note focuses on posthumous reproduction and, more specifically, postmortem sperm retrieval: the process of using a deceased male’s frozen sperm after his death to produce his biological children at the request of his spouse or intimate …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Diversity’S Distractions Revisited: The Case Of Latinx In Higher Education, Rachel F. Moran

Faculty Scholarship

As the United States Supreme Court considers the future of affirmative action in higher education, this Article reflects on a 2003 essay by Professor Derrick Bell, which provocatively argued that diversity is a distraction from other pressing problems of access to a bachelor’s degree. The Article evaluates his claims with a focus on Latinx students, a rapidly growing segment of the college-going population. Bell believed that diversity is a less compelling justification for the use of race in admissions than corrective justice is. As a result, he predicted persistent litigation over the constitutionality of affirmative action programs. That prediction certainly …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Scholarship

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Immigration Detention And Illusory Alternatives To Habeas, Fatma Marouf

Faculty Scholarship

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article …

How A Shuttered Bathroom At A Pgh Grocery Store Explains Structural Racism, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …

Law School News: Welcome, Professor Bernard Freamon 04-20-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Shurtleff Conundrum: Resolving The Conflict In Government-Speech And Public Forum Analysis, James Walraven

Duke Journal of Constitutional Law & Public Policy Sidebar

Shurtleff v. Boston is the Supreme Court's latest opportunity to clarify the murky line between the "government-speech" and "public forum" doctrines. The Court will decide whether the City of Boston violated the Free Speech Clause by refusing to fly a flag with Christian imagery in front of City Hall. The City had previously allowed the flying of numerous national and cultural flags by various organizations, but refused to fly a conservative social organization's "Christian flag" because of the City's fear of appearing to endorse a particular religion.

Under the public forum doctrine, private citizens' free speech is protected to varying …

Noncitizens' Rights In The Face Of Prolonged Detention: Johnson V. Arteaga-Martinez, Samantha L. Fawcett

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the Immigration and Nationality Act (the "INA"), codified in part at 8 U.S.C. § 1231, the federal government generally has ninety days to successfully deport a detained noncitizen who has reentered illegally after being removed once before. While exceptions to this time limit exist, the United States Supreme Court determined in 2001 that detention under Section 1231 cannot be indefinite.[1]

Now, more than two decades later, the Court must elaborate further. In Johnson v. Arteaga-Martinez, the Court must decide how long a detainment can last beyond the ninety-day statutory limit while a detainee seeks relief from deportation through …

Xiaomi Corporation V. U.S. Department Of Defense: Defending The International Emergency Economic Powers Act, Bailey Williams

Duke Journal of Constitutional Law & Public Policy Sidebar

The International Emergency Economic Powers Act (IEEPA) provides the Executive with emergency authority to act in the realm of foreign affairs and national security. As global power struggles increasingly play out in financial markets as opposed to battle fields, the United States is leveraging global capital markets, banking, and financial systems to effectuate national security goals – and is relying on IEEPA to do so. However, critics argue IEEPA lacks appropriate procedural safeguards given the courts' general deference to the Executive acting pursuant to national security and the corresponding lack of Congressional oversight.

After assessing various criticisms of IEEPA, this …

Toomey’S Vote Against Ketanji Brown Jackson Set A Dangerous Precedent. Here's Why, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Name And Shame: How International Pressure Allows Civil Rights Activists To Incorporate Human Rights Norms Into American Jurisprudence, Lily Talerman

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States has ratified international human rights treaties sparingly. Where it has ratified, it has provided such a large number of reservations that the treaties’ domestic effects are effectively nullified. Even though international human rights law has not been directly incorporated into American jurisprudence, however, international human rights norms have greatly affected civil rights provisions in the United States by naming and shaming American civil rights abuses. Recognizing the relatively low success rate of tackling systemic racism in the United States through treaty implementation, this Note instead argues that naming and shaming American civil and human rights abuses more …

Free Speech On Social Media: Unrestricted Or Regulated?, Alessandra Garcia Guevara

Student Writing

Social media has evolved into an essential mode of communication in recent years, allowing people to express their thoughts with the audience of their choice by sending private messages, posting their thoughts, or sharing their opinions. Such audiences can come from all over the world because this online technology breaks down geographic, linguistic, and cultural barriers. As a result, social media has evolved into a powerful tool for self-expression, allowing anyone with an Internet connection to participate in global debates. However, its misuse has had disastrous consequences in the real world, such as the attack on the Capitol that occurred …

Dobbs V. Jackson Women's Health Organization And The Likely End Of The Roe V. Wade Era, Jeffrey Hannan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.