Fourteenth Amendment Commons^™

Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an “impartial decision maker is essential” to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that “due process requires a neutral and a detached judge in the first instance.” Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings …

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

Federal Prohibition Of Medical Marijuana In Pain Management: Undue, Unimportant, And Irrational, Michael L. Timm Jr.

Michael L. Timm Jr.

This paper provides a review of the historical right of the people of the United States to seek, and use, alternative medicinal treatment options in the realm of managing both the pain and symptoms associated with a variety of illnesses. The focus then turns to the right involved: a patient’s ability to employ medical marijuana instead of a commonly prescribed narcotic or mass-market non-steroidal anti-inflammatory analgesic (NSAIA) drug to manage pain and increase quality of life under the advice and consent of a treating physician. No one article has argued that there is a fundamental, important, or at least recognizable …

Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn

William & Mary Law Review

No abstract provided.

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer

Joe Custer

This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.

Reimagining Merit As Achievement, Aaron N. Taylor

AARON N TAYLOR

Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

Clear Depictions Promote Clear Decisions: Drafting Abortion Speech-And-Display Statutes That Pass First And Fourteenth Amendment Muster, Ryan J. Pulkrabek

Ryan J Pulkrabek

Several states have passed legislation requiring physicians to take, display, and describe an ultrasound to their patients who are seeking an abortion. These statutes have been challenged under both the Fourteenth and First Amendments because the statutes place burdens on women who seek abortion and compel physician speech. Courts are divided on these questions and state legislatures need guidance as they consider reform. This Article proposes a model "speech-and-display" statute that is both consistent with the Constitution and good public policy. This model statute is designed to protect the mental health of patients and the life of the unborn by …

Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif

Jacob M Reif

No abstract provided.

Sex Segregation In Public Schools: Separate But Equal?, Lily A. Saffer

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Harris V. Mcrae: Whatever Happened To The Roe V. Wade Abortion Right?, Laura Crocker

Pepperdine Law Review

The controversial Roe v. Wade decision purportedly removed the abortion controversy from the political arena and set constitutional standards by which questions on the issue could be resolved. The enactment of the Hyde Amendment, a bill which generally forbids the use of Medicaid funds for abortions, was a recent political response to the abortion controversy. However, in the recent case of Harris v. McRae, the Supreme Court upheld the constitutionality of the Hyde Amendment and thus injected the abortion controversy back into the political arena. The author exhaustively examines the abortion controversy from the time of the Roe decision up …

Wengler V. Druggists' Mutual Insurance Company: No More Skirting The Issue Of Sex Discrimination In Workers' Compensation Dependency Statutes, Teresa A. Saggese, Lawson A. Cox Ii

Pepperdine Law Review

No abstract provided.

Rostker V. Goldberg: A Step Backward In Equal Protection, Or A Justifiable Affirmation Of Congressional Power?, Gilbert L. Purcell, Janet Rappaport

Pepperdine Law Review

The Supreme Court in Rostker v. Goldberg upheld a Congressional decision which excluded women from registration for service in the Armed Forces of the United States. Although the case was brought based upon equal protection grounds, the majority took a separation of powers stance and based its decision upon the fact that the Court has traditionally granted deference to the decisions of Congress in the area of military affairs. The minority opinions disagreed with the majority's analysis and claimed that the central issue in Rostker was not military in nature, but was that Congress' plan to register males only, promoted …

Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner

Pepperdine Law Review

No abstract provided.

The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer

Pepperdine Law Review

After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …

Constitutional Considerations: Government Responsibility And The Right Not To Be A Victim , Richard L. Aynes

Pepperdine Law Review

Within a democratic society, citizens are provided with certain rights and liberties. Among those rights and liberties is the right not to be a victim. In this article, the author examines and analyzes the growing concern for the protection of victims of crimes. Recent legislative enactments have been designed to alter the role of the victim in the civil and criminal justice systems by defining and implementing a series of "victims' rights." The author concludes by recognizing that one of the most important duties of government is to provide for the physical safety of those within its jurisdiction. To implement …

Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii

William & Mary Law Review

No abstract provided.

A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg

William & Mary Law Review

This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the …

Reinforcement Of Middle Level Review Regarding Gender Classifications: Mississippi University For Women V. Hogan , Mary Ellen Shull

Pepperdine Law Review

In Mississippi University for Women v. Hogan, the United States Supreme Court was presented with an equal protection challenge initiated by a male who was denied admission to a state-supported all-female school of nursing. After a review of relevant decisions in this area, the author examines the Supreme Court's intermediate level of scrutiny analysis and argues that application of a higher level of scrutiny to gender-based classifications is a prerequisite to true equality between the sexes.

An Analysis Of Selective Service System V. Minnesota Public Interest Research Group, Teresa L. Howell

Pepperdine Law Review

Section 1113 of the Department of Defense Authorization Act passed in 1982 prohibits the receipt of Title IV educational funds by students who do not comply with draft registration requirements. In Selective Service System v. Minnesota Public Interest Research Group, the United States Supreme Court upheld section 1113 in the face of a multi-tiered constitutional challenge. After exploring the history of section 1113, the author examines the Supreme Court's analysis of each of the constitutional challenges: bill of attainder, privilege against self-incrimination, and equal protection. Finally, the author investigates the probable impact of the Court's decision.

Aids: Do Children With Aids Have A Right To Attend School?, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Equal Protection And The New Rational Basis Test: The Mentally Retarded Are Not Second Class Citizens In Cleburne, Gordon W. Johnson

Pepperdine Law Review

Recently, the Fifth Circuit held that classifications involving the mentally retarded were quasi-suspect and should be reviewed under a heightened scrutiny analysis. The Supreme Court reversed that holding but granted the retarded a remedy by applying a more genuine scrutiny under the rational basis test. The Court's decision in City of Cleburne, Texas v. Cleburne Living Center, Inc. raises the question whether the Court intends to apply an increased level of scrutiny under the rational basis test or whether this case merely represents another ad hoc decision made on the horns of a dilemma. This Note discusses the uncertain impact …

The Supreme Court Refused To Expand The Right Of Privacy To Include Homosexual Sodomy In Bowers V. Hardwick, Richard J. Wittbrodt

Pepperdine Law Review

No abstract provided.

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Sentencias Trascendentales Del Tribunal Supremo De Los Estados Unidos. Pasos Hacia La Igualdad Del Matrimonio Para Parejas Del Mismo Sexo, Julie A. Davies

McGeorge School of Law Scholarly Articles

In 2013, the United States Supreme Court decided two major cases on marriage equality – U.S. v. Windsor and Hollingsworth v. Perry. These cases paved the way for the Court’s eventual decision in 2015, in Obergefell v. Hodges, that the Constitution requires that states permit same-sex marriage. This article analyzes those precedents for an audience of Spanish-speaking legal professionals and academics seeking to understand the basis for the Court’s decisions.

Shelby V. Holder: Brief Of Professor Patricia A. Broussard And Famu College Of Law Students As Amici Curiae In Support Of Respondents, Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba

Amicus Briefs

Shelby County, Alabama v. Eric H. Holder, Jr., In the Supreme Court of the United States, Brief of Professor Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba and Named Students and Organizations of Florida A & M University College of Law as Amici Curiae in Support of Respondents

Just Another Brick In The Wall: The Establishment Clause As A Heckler's Veto, Richard F. Duncan

Nebraska College of Law: Faculty Publications

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'

Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are …

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 …