Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Touro University Jacob D. Fuchsberg Law Center (52)
- Fordham Law School (12)
- University of Arkansas, Fayetteville (8)
- Pepperdine University (6)
- Selected Works (5)
-
- Georgetown University Law Center (4)
- Loyola Marymount University and Loyola Law School (4)
- Seattle University School of Law (4)
- New York Law School (3)
- Boston University School of Law (2)
- Claremont Colleges (2)
- Duke Law (2)
- Florida State University College of Law (2)
- Maurer School of Law: Indiana University (2)
- SelectedWorks (2)
- Barry University School of Law (1)
- Duquesne University (1)
- Emory University School of Law (1)
- Liberty University (1)
- Penn State Dickinson Law (1)
- Roger Williams University (1)
- Saint Louis University School of Law (1)
- University of Cincinnati College of Law (1)
- University of Georgia School of Law (1)
- University of Kentucky (1)
- University of Oklahoma College of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Richmond (1)
- University of Tennessee, Knoxville (1)
- Vanderbilt University Law School (1)
- Publication Year
- Publication
-
- Touro Law Review (46)
- Faculty Scholarship (9)
- Arkansas Law Review (8)
- Fordham Law Review (7)
- Pepperdine Law Review (6)
-
- Georgetown Law Faculty Publications and Other Works (4)
- Loyola of Los Angeles Law Review (4)
- Seattle University Law Review (4)
- Journal of Race, Gender, and Ethnicity (3)
- Scholarly Works (3)
- All Faculty Scholarship (2)
- CMC Senior Theses (2)
- NYLS Law Review (2)
- Adam Lamparello (1)
- American Indian Law Review (1)
- Barry Law Review (1)
- Chancellor’s Honors Program Projects (1)
- Darren L Hutchinson (1)
- Dickinson Law Review (2017-Present) (1)
- Erwin Chemerinsky (1)
- Faculty Articles (1)
- Faculty Articles and Other Publications (1)
- Florida State University Law Review (1)
- Indiana Journal of Law and Social Equality (1)
- Indiana Law Journal (1)
- James L. Kainen (1)
- Law Faculty Publications (1)
- Law Faculty Scholarly Articles (1)
- Law Faculty Scholarship (1)
- Martin A. Schwartz (1)
- Publication Type
Articles 31 - 60 of 125
Full-Text Articles in Constitutional Law
Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari
Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari
Loyola of Los Angeles Law Review
No abstract provided.
Diy Solutions To The Hobby Lobby Problem, Kristin Haule
Diy Solutions To The Hobby Lobby Problem, Kristin Haule
Loyola of Los Angeles Law Review
No abstract provided.
The High Power Of The Lower Courts, Doni Gewirtzman
The High Power Of The Lower Courts, Doni Gewirtzman
Other Publications
No abstract provided.
The Power Of Dignity, Elizabeth B. Cooper
The Power Of Dignity, Elizabeth B. Cooper
Fordham Law Review
This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …
Perspectives On Marriage Equality And The Supreme Court, The Editors
Perspectives On Marriage Equality And The Supreme Court, The Editors
Fordham Law Review
On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …
Hail Marriage And Farewell, Ethan J. Leib
Hail Marriage And Farewell, Ethan J. Leib
Fordham Law Review
My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell
Fordham Law Review
Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau
Fordham Law Review
By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …
Appellate Division, Fourth Department, People V. Allen, Joaquin Orellana
Appellate Division, Fourth Department, People V. Allen, Joaquin Orellana
Touro Law Review
No abstract provided.
Does The Public Care How The Supreme Court Reasons? Empirical Evidence From A National Experiment And Normative Concerns In The Case Of Same-Sex Marriage, Courtney Megan Cahill, Geoffrey Christopher Rapp
Does The Public Care How The Supreme Court Reasons? Empirical Evidence From A National Experiment And Normative Concerns In The Case Of Same-Sex Marriage, Courtney Megan Cahill, Geoffrey Christopher Rapp
Scholarly Publications
Can the Supreme Court influence the public’s reception of decisions vindicating rights in high-salience contexts, like samesex marriage, by reasoning in one way over another? Will the people’s disagreement with those decisions—and, by extension, societal backlash against them—be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate with the people as a descriptive matter, should the Court minimize anxiety-producing characteristics in decisions vindicating civil rights—such as homosexuality in the marriage-equality context—simply in order to assuage the people?
This Article combines constitutional theory and empirical legal analysis to ask …
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Faculty Articles
The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "
Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …
Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington
Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington
Fordham Law Review
I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.
Race, Dignity, And The Right To Marry, Robin A. Lenhardt
Race, Dignity, And The Right To Marry, Robin A. Lenhardt
Fordham Law Review
Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?
Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii
Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii
All Faculty Scholarship
As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation …
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Touro Law Review
No abstract provided.
Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin
Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin
Touro Law Review
No abstract provided.
Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen
Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen
James L. Kainen
During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …
Campaign Finance And Political Gerrymandering Decisions In The October 2005 Term, Burt Neuborne
Campaign Finance And Political Gerrymandering Decisions In The October 2005 Term, Burt Neuborne
Touro Law Review
No abstract provided.
The Importance Of Interpretation: How The Language Of The Constitution Allows For Differing Opinions, Christina J. Banfield
The Importance Of Interpretation: How The Language Of The Constitution Allows For Differing Opinions, Christina J. Banfield
Chancellor’s Honors Program Projects
No abstract provided.
"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson
"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson
Darren L Hutchinson
The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.
A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …
Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz
Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz
Martin A. Schwartz
"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Indiana Journal of Law and Social Equality
No abstract provided.
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Touro Law Review
Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.
Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman
Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman
Touro Law Review
In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean …
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Adam Lamparello
Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …
Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan
Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan
CMC Senior Theses
In my analysis of affirmative action policy, I began the search without having formed any opinion whatsoever. The topic was interesting to me, and after reading a mass of news editorials and their op-eds, I decided to take up the argument for myself. Other than the fact that I am a student, I have no stake in affirmative action policy. This paper relies primarily on the foremost half-dozen or so notable mismatch theory scholars, a close reading of an innumerable number of Supreme Court opinions, affirmative action related studies from higher education academics and policy institutes, and how historical executive …
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
Barry Law Review
This article seeks to apply Rogers Smith’s Multiple Traditions thesis to the United States Supreme Court’s treatment of the Fourteenth Amendment to uncover the influences behind its major civil rights decisions. It will argue that liberalism dominates at the Court after mostly, but not completely, shedding its illiberal tendencies. This article will argue that the Court’s focus on intent over impact and its “color-blind” approach to racial classifications in the era of subterranean prejudice and indifference or ignorance to inequality solidifies and perpetuates the hierarchies created by ascriptive forms of Americanism under the Court’s liberal notions. This article will also …
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
Pepperdine Law Review
No abstract provided.
A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler
A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler
Pepperdine Law Review
No abstract provided.
Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle
Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle
Pepperdine Law Review
No abstract provided.