Law Commons^™

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora

Akron Law Review

Wiggins v. State presented two unique issues: (1) whether it was proper to authorize courtroom security personnel to use prophylactic apparel while escorting a defendant merely suspected of having acquired immunodeficiency syndrome (AIDS), and (2) the extent to which this handling procedure impacted the jury.

This Note will analyze the Wiggins decision, emphasizing the court's reasoning as it pertains to the following: (1) the guarantee of a fair and impartial jury trial for defendants either having or being suspected of having AIDS; (2) the permissible exercise of discretion by the trial judge in authorizing precautions during the course of the …

Mu'min V. Virginia: Sixth And Fourteenth Amendments Do Not Compel Content Questions In Assessing Juror Impartiality, Cheryl A. Waddle

Akron Law Review

This note synopsizes the Supreme Court's prior decisions regarding the adequacy of voir dire in capital cases surrounded by prejudicial pretrial publicity. This note will then discuss Mu'Min and explore the weaknesses in the Court's analogies to its prior decisions. Next, the note will propose arguments in favor of mandating content questioning. Finally, this note will explore possible nonconstitutional reasons for requiring content questioning in cases where juror partiality should be presumed.

The Constutionality Of Punitive Damages: Pacific Mutual Life Insurance Company V. Cleopatra Haslip, Thomas P. Mannion

Akron Law Review

This Note examines the history of the constitutional challenges to the doctrine of punitive damages. Next, this Note explores the Supreme Court's decision in Haslip. Finally, this Note examines the ramifications of the Haslip decision.

A Historical Review Of Affirmative Action And The Interpretation Of Its Legislative Intent By The Supreme Court, Carl E. Brody Jr.

Akron Law Review

In Part I, I will discuss the history of pre-affirmative action programs. This involves an analysis of the original intent of the Fourteenth Amendment, its related remedial legislation, as well as several of the New Deal Acts prohibiting employment discrimination. Part II will analyze the advent of affirmative action, from its inception with the 1957 and 1960 Civil Rights Acts, and trace its development through Executive Orders 12250 and 12259, which constitute the last major expansion in affirmative action doctrine. Part III will examine the period between 1978 and 1991, where the Supreme Court's attempts to find a consistent interpretation …

State V. Nemeth: Equal Protection For The Battered Child, Joseph A. Shoaff

Akron Law Review

This Note analyzes the Court's decision in Nemeth. Part II presents a background of the battered child syndrome followed by a discussion of the admissibility of battered woman and battered child syndrome testimony in Ohio. In addition, it contains a brief overview of Ohio's ambiguous self-defense standard. Part III presents the facts, procedural history, and holding of Nemeth. Part IV analyzes the Court's holding.

This Note establishes why the Ohio Supreme Court should recognize the psychological equivalency of the battered woman and battered child syndromes and affirm the Nemeth holding on equal protection grounds. In doing so, the Court will …

Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene C. Goring

Akron Law Review

This Article will explore the origins of the Court’s color-blind interpretation of the Fourteenth Amendment, and the role that this interpretation plays in the development of new barriers against challenges to race-based affirmative action programs. Part II of this Article traces the development and application of the strict scrutiny test to evaluate the constitutionality of both invidious and benign racial classifications. Part III examines Justice Powell’s position that racial classifications used as remedial measures may overcome the presumption of constitutional invalidity associated with the use of race-based classifications. In this context, the Court recognizes that the continued impact of past …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Aclu V. Capitol Square Review And Advisory Board: Is There Salvation For The Establishment Clause? "With God All Things Are Possible.", Theologos Verginis

Akron Law Review

Part II of this Note provides a cursory review of the evolution of Establishment Clause jurisprudence, and it particularly focuses on the primary tests for analyzing the Establishment Clause that the Supreme Court has promoted over the years. Part III discusses the procedural history of the "Ohio State Motto" case with particular emphasis on the courts' decisions and their reasoning. Part IV analyzes the decision by the Court of Appeals for the Sixth District and addresses some of the concerns that inhere in the decision. Finally, Part V concludes the Note.

The Fourteenth Amendment: The Great Equalizer Of The American People, Abel A. Bartley

Akron Law Review

The Fourteenth Amendment to the United States Constitution, which was ratified on July 28, 1868, demonstrated the change in attitude, which hit many Americans after the chaotic Civil War. It was America’s first attempt to legally challenge White supremacist ideas by creating a truly equal multiracial society. With its emphasis on equal protection and equal justice, the Fourteenth Amendment was intended to be the great equalizer of American people, legally changing African American men into White men so that they could enjoy all the rights, privileges, and immunities of United States citizenship. However, determining the meaning of equality uncovered the …

The Constitutional Politics Of Interpreting Section 5 Of The Fourteenth Amendment, Christopher P. Banks

Akron Law Review

This essay analyzes the Rehnquist Court’s Section 5 cases by first, in Section I, establishing how the Supreme Court has historically assumed the task of interpreting Congress’ power to act under the Fourteenth Amendment. Two periods, Reconstruction and then the mid- 1960s, are examined because they present contrasting views about the scope of what the Fourteenth Amendment and its enforcement section means. Section II then surveys Section 5 cases from the Rehnquist Court in order to illustrate how its jurisprudence mirrors the antifederalist rhetoric established in the post-reconstruction era while, not surprisingly, departing from the principles set forth in the …

Congressional Enforcement Of Civil Rights And John Bingham's Theory Of Citizenship, Rebecca E. Zietlow

Akron Law Review

In the Twentieth Century, Congress’ power to enact civil rights legislation, and make it privately enforceable against states and private parties, became widely recognized as one of the most important functions of the federal government. Yet in recent years, the Supreme Court has greatly restricted this function with its rulings restricting Congress’ commerce power and its power to enforce the Equal Protection Clause under Section five of the Fourteenth Amendment. Cases such as United States v. Morrison, Board of Trustees of the University of Alabama v. Garrett and Kimel v. Florida Board of Regents have left Congress in a vacuum, …

John Bingham And The Background To The Fourteenth Amendment, Paul Finkelman

Akron Law Review

Legal scholars have long debated the “original intent” of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as “privileges or immunities of citizens of the United States,” “due process of law” or “equal protection of the laws.”

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin …

John A. Bingham And The Story Of American Liberty: The Lost Cause Meets The "Lost Clause", Michael Kent Curtis

Akron Law Review

Nations have stories too. Ours is a story about the American Revolution against monarchy and aristocracy, a revolution based on the faith that all people are created equal and endowed by their Creator with certain unalienable rights. The revolution espoused the ideal that legitimate governmental power comes only from the consent of the governed.

In the old world, kings were sovereign. In America, the sovereign was “the people.” That ideal appeared in the preamble of the Constitution—a preamble that declared (somewhat inaccurately) that the Constitution came from “we the people” and was designed to assure liberty and justice. Though we …

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Review

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The meaning of the Amendment was ultimately …

Due Process Limitations On Punitive Damages: Why State Farm Won't Be The Last Word, Laura J. Hines

Akron Law Review

Part I of this article will trace the development of the evolving principles and requirements the Court is imposing on state awards of punitive damages, identifying notable undercurrents within the Court regarding this new and expanding application of the Due Process Clause. Part II will present a detailed analysis of State Farm Mutual Automobile Insurance Co. v. Campbell, which represents the Court’s most ambitious attempt yet to provide guidance to states on how to approach the imposition of punitive damages and how to assess the appropriate size thereof. Finally, Part III of this article will examine recent lower court cases …

The Little Word "Due", Andrew T. Hyman

Akron Law Review

The Fifth and Fourteenth Amendments bar the government from depriving anyone of “life, liberty, or property, without due process of law.” The ambiguity of that phrase has kept the judiciary busy for many generations, but that same ambiguity has become “completely eclipsed by the little word ‘due.’” The goal of the present article is to study this critical word, and in particular to examine whether a process is automatically “due” if it is owed according to positive law, or alternatively whether a process can only be “due” if it accords with judicially ascertained principles of liberty and justice. The present …

Professor Nimmer Meets Professor Schauer (And Others): An Analysis Of "Definitional Balancing" As A Methodology For Determining The "Visible Boundaries Of The First Amendment", Norman T. Deutsch

Akron Law Review

This article examines definitional balancing as a methodology for determining the “visible boundaries of the First Amendment.” More specifically, it focuses on the Court’s use of definitional balancing, as a technique for drawing definitional lines within categories of speech, to distinguish between speech that is included within the First Amendment, and speech that is excluded so that it may be proscribed based on its content. Part II describes definitional balancing in Professor Nimmer’s terms. Part III discusses the Court’s application of definitional balancing and the issues raised by commentators.

Obama, The Fourteenth Amendment, And The Drug War, Martin D. Carcieri

Akron Law Review

This article is written to help clarify the full range of understanding Obama would bring to a second term.

Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court …

The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill, Jessica L. Knopp

Akron Law Review

This Comment analyzes the constitutionality of Ohio’s controversial H.B. 125 under the Fourteenth and First Amendments to the United States Constitution in the context of current United States Supreme Court precedent. Part II outlines Ohio’s current abortion laws, describes Ohio’s role in creating anti-abortion legislation and case law, provides a context of other abortion bills occurring nationwide, and explains H.B. 125. Part III analyzes how H.B. 125 is unconstitutional under the Fourteenth Amendment in its current form, analyzes its constitutionality if the bill was modified to be a consent-only bill, and analyzes its unconstitutionality under the Establishment Clause of the …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …