Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 33
Full-Text Articles in Law
Fourteen Going On Forty: Challenging Sex Offender Registration For Juveniles Under The Fourteenth Amendment Equal Protection Clause, Emily Baker
William & Mary Bill of Rights Journal
Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model …
Dobbs' Sex Equality Troubles, Marc Spindelman
Dobbs' Sex Equality Troubles, Marc Spindelman
William & Mary Bill of Rights Journal
This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …
Unequal Protection: Rethinking The Standards And Safeguards For Absentee Ballot Schemes, Kira M. Simon
Unequal Protection: Rethinking The Standards And Safeguards For Absentee Ballot Schemes, Kira M. Simon
William & Mary Bill of Rights Journal
No abstract provided.
Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto
Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto
William & Mary Bill of Rights Journal
This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …
Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal
William & Mary Bill of Rights Journal
No abstract provided.
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
William & Mary Bill of Rights Journal
No abstract provided.
The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman
The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman
William & Mary Bill of Rights Journal
The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …
Four Responses To Constitutional Overlap, Michael Coenen
Four Responses To Constitutional Overlap, Michael Coenen
William & Mary Bill of Rights Journal
Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …
Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus
Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus
William & Mary Bill of Rights Journal
No abstract provided.
Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta
Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta
William & Mary Bill of Rights Journal
No abstract provided.
Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer
Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer
William & Mary Bill of Rights Journal
No abstract provided.
Hiding In Plain View: A Path Around Sovereign Immunity For State Government Employees, William J. Rich
Hiding In Plain View: A Path Around Sovereign Immunity For State Government Employees, William J. Rich
William & Mary Bill of Rights Journal
No abstract provided.
Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone
Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone
William & Mary Bill of Rights Journal
No abstract provided.
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
William & Mary Bill of Rights Journal
No abstract provided.
Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green
Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green
William & Mary Bill of Rights Journal
Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …
Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer
Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer
William & Mary Bill of Rights Journal
No abstract provided.
Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden
Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden
William & Mary Bill of Rights Journal
This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account the political …
Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams
Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams
William & Mary Bill of Rights Journal
No abstract provided.
Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho
Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho
William & Mary Bill of Rights Journal
The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …
Challenges To State Anti-Preference Laws And The Role Of Federal Courts, Michael E. Rosman
Challenges To State Anti-Preference Laws And The Role Of Federal Courts, Michael E. Rosman
William & Mary Bill of Rights Journal
No abstract provided.
The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt
The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt
William & Mary Bill of Rights Journal
By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education1 prohibited racial segregation in schools and other stateoperated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most …
Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk
Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk
William & Mary Bill of Rights Journal
No abstract provided.
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
William & Mary Bill of Rights Journal
No abstract provided.
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
William & Mary Bill of Rights Journal
No abstract provided.
Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps
Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps
William & Mary Bill of Rights Journal
A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …
Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test The Boundaries, Timothy Sandefur
Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test The Boundaries, Timothy Sandefur
William & Mary Bill of Rights Journal
No abstract provided.
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
William & Mary Bill of Rights Journal
No abstract provided.
Not So Landmark After All? Lawrence V. Texas: Classical Liberalism And Due Process Jurisprudence, Davin J. Hall
Not So Landmark After All? Lawrence V. Texas: Classical Liberalism And Due Process Jurisprudence, Davin J. Hall
William & Mary Bill of Rights Journal
No abstract provided.
Continuing The Trend Toward Equality: The Eradication Of Racially And Sexually Discriminatory Provisions In Private Trusts, Katheryn F. Voyer
Continuing The Trend Toward Equality: The Eradication Of Racially And Sexually Discriminatory Provisions In Private Trusts, Katheryn F. Voyer
William & Mary Bill of Rights Journal
Racially and sexually discriminatory private trusts are presumed to be valid under traditional common law governing dispositions of property. Most courts have held that if the state plays a "passive" role, only private actors are involved and the Fourteenth Amendment is not implicated The United States Supreme Court, however, has declared in one context that discriminatory charitable trusts violate public policy and are unconstitutional. This Note argues that because private trusts involve unlawful state action and are not purely private, courts have an affirmative obligation imposed by the Supreme Court and a moral responsibility because of well-established public policy against …
Romer V. Evans And Invidious Intent, Andrew Koppelman
Romer V. Evans And Invidious Intent, Andrew Koppelman
William & Mary Bill of Rights Journal
In this Essay, Professor Koppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. Professor Koppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedential significance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage …