Law Commons^™

Reply Brief Of Edward A. And Doris Zelinsky In The New York Tax Appeals Tribunal, Edward A. Zelinsky, Doris Zelinsky

Amicus Briefs

Three reasons of state law independently compel a refund of the New York income tax Professor Edward A. Zelinsky paid on the Cardozo Law School salary Professor Zelinsky earned during the COVID period from March 15, 2020 through December 31, 2020. That salary was not New York source income because Professor Zelinsky earned that COVID period salary at his home in Connecticut “wholly without” New York’s borders. 20 N.Y.C.R.R. § 132.4(b). In addition, New York’s “convenience of the employer” rule does not apply to that COVID period salary because Professor Zelinsky’s remote work at home was for Cardozo’s necessity rather …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

Traditional Notions Of Fair Play And Substantial Justice?: The Interplay Between Remote Work, State Regulations, And Personal Jurisdiction, Kathryn M. Couture

Roger Williams University Law Review

No abstract provided.

A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres

Golden Gate University Law Review

The United States Immigration and Customs Enforcement agency (ICE) detained Jane Doe #15, an immigrant woman, at the Irwin County Detention Center (ICDC) in Georgia. During Jane’s time at ICDC, Doctor Mahendra Amin hastily examined her because she was experiencing severe pain in her pelvic area. Abandoning established professional and legal protocols for diagnosis and treatment, the medical staff scheduled Jane for surgery. Jane did not know what to expect from the surgery or what the medical personnel would do. After the surgery, the staff at ICDC neglected Jane’s care. She could not get out of bed on her own; …

Defending Dobbs: Ending The Futile Search For A Constitutional Right To Abortion, Robert J. Pushaw, Jr.

San Diego Law Review

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Privacy: Pre- And Post-Dobbs, Rona Kaufman

Law Faculty Publications

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s …

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Truth And Reconciliation: The Ku Klux Klan Hearings Of 1871 And The Genesis Of Section 1983, Tiffany R. Wright, Ciarra N. Carr, Jade W.P. Gasek

Dickinson Law Review (2017-Present)

Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten …

Gang Databases: Race And The Constitutional Failures Of Contemporary Gang Policing In New York City, Jasmine Johnson

St. John's Law Review

(Excerpt)

Similar to many jurisdictions throughout the United States, the New York City Police Department (“NYPD”) has a gang database—a criminal intelligence system utilized by the NYPD to keep track of alleged “gang members” in New York City. And similar to many jurisdictions throughout the United States, the NYPD’s gang database has been severely criticized. Opponents of the gang database accuse the NYPD of using it as a tool for racial profiling, mass incarceration, and mass criminalization of Black and Brown young men in New York City. Opponents of the database also take issue with the NYPD’s lack of transparency …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

A Costly Victory: June Medical, Federal Abortion Legislation, And Section 5 Of The Fourteenth Amendment, Thomas J. Molony

Arkansas Law Review

The United States Supreme Court’s recent major abortion ruling in June Medical Services L.L.C. v. Russo was a win for abortion rights supporters, but a costly one. Although the June Medical Court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital, a majority of the Justices—and most importantly, Chief Justice Roberts, whose concurrence constitutes the Court’s holding—stressed that Casey’s constitutional standard for pre-viability abortion regulations is not the amorphous balancing test the Court suggested in Whole Woman’s Health v. Hellerstedt, but a more deferential one under which a pre-viability regulation typically will be …

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …

A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson

Faculty Publications

In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.

Registration-based consent to jurisdiction has a long …

The Democracy Ratchet, Derek T. Muller

Indiana Law Journal

This Article proceeds in five Parts. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to …

Whole Woman’S Health V. Hellerstedt, Kelly Lynn Claxton

Ohio Northern University Law Review

No abstract provided.

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.

Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.

Janus's Two Faces, Kate Andrias

Faculty Scholarship

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on …

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

How To Improve The Debt Ceiling To Fit A Partisan Government: A Global Examination Of Which International Solutions Excel, Sarah Love

Indiana Journal of Global Legal Studies

This Note explores the changing role the debt ceiling has played within the United States and considers how that role should be altered moving forward. The debt ceiling's history and its political connections are discussed as a backdrop to how the United States might alter the debt ceiling to limit both future government shutdown and political gridlock. This Note examines both domestic and international solutions to the debt ceiling problem with an emphasis on the latter. In particular, the Note focuses on the possible international solution of adopting a system similar to Denmark's debt ceiling, or adopting a high debt-to- …

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Michigan Law Review Online

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the …

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Full Faith And Credit, Choice Of Laws, And Extraterritorial Regulation Of Corporate Transactions, Gregory S. Sergienko

Greg Sergienko

In a federal system in which each state may enact laws providing for the chartering and governance of corporations and in which corporations can and do conduct business in more than one state, several states may claim an interest in regulating the conduct of a given corporation. The enactment of state laws that are intended to restrict hostile corporate takeovers and that purport to extend to foreign corporations is one example of this phenomenon. "Typically, any of a number of jurisdictional links might trigger the application of such an anti-takeover statute: the target's being incorporated in the state, its having …