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Articles 1 - 30 of 40
Full-Text Articles in Fourteenth Amendment
Coercive Ideology, Tyler Rose Clemons
Coercive Ideology, Tyler Rose Clemons
Faculty Publications
Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this Article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script …
A New Test For The New Crime Exception, Colin Miller
A New Test For The New Crime Exception, Colin Miller
Faculty Publications
The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.
By doing so, courts have allowed the new crime exception to swallow two …
Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes
Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes
Faculty Publications
This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.
First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.
Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …
Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich
Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich
Faculty Publications
Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates …
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Faculty Publications
The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.
This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes …
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
Faculty Publications
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …
Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer
Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer
Faculty Publications
Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …
The School Civil Rights Vacuum, Emily Suski
The School Civil Rights Vacuum, Emily Suski
Faculty Publications
Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. …
The Diverging Right(S) To Bear Arms: Private Armament And The Second And Fourteenth Amendments In Historical Context, Alexander Gouzoules
The Diverging Right(S) To Bear Arms: Private Armament And The Second And Fourteenth Amendments In Historical Context, Alexander Gouzoules
Faculty Publications
This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. …
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
Faculty Publications
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …
Dark Sarcasm In The Classroom: The Failure Of The Courts To Recognize Students' Severe Emotional Harm As Unconstitutional, Emily Suski
Faculty Publications
Sometimes the very people who are supposed to teach, nurture, and protect students in public schools — the students’ teachers, principals, coaches, and other school officials — are instead the people who harm them. Public school officials have beaten students, causing significant physical harm. They have also left students suffering from depression, suicidal ideation, and Post-Traumatic Stress Disorder. When school officials cause such severe harm to students, all the federal courts of appeals to consider the issue have concluded that the Fourteenth Amendment at least in theory protects them, regardless of whether the form of the harm is emotional or …
Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons
Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons
Faculty Publications
(Excerpt)
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg
Faculty Publications
Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …
Debate On Birthright Citizenship, John Eastman Dr., Ediberto Román
Debate On Birthright Citizenship, John Eastman Dr., Ediberto Román
Faculty Publications
The following is the transcript from a debate between Dr. John Eastman and Professor Ediberto Roman, and moderated by Dean of the Florida International University College of Law, Alex Acosta. This debate took place on February 24-25, 2011 as a part of the FIU Law Review's Symposium on immigration reform in the United States. Specifically, this debate centers on the Fourteenth Amendment and birthright citizenship. Both Dr. Eastman and Professor Romdn were given ten minutes for their own remarks, beginning with Dr. Eastman. After the opening remarks, the debate goes into a brief back-and-forth between Dr. Eastman and Professor Roman …
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Faculty Publications
No abstract provided.
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Faculty Publications
No abstract provided.
The Citizenship Dialectic, Ediberto Román
The Citizenship Dialectic, Ediberto Román
Faculty Publications
Imagine that you reside in a country not unlike the United States, with a similar cultural, economic, racial and ethnic mix. As in many other countries, the events of September 11, 2001, dramatically changed the lives of the inhabitants of your land. Your country passed a series of Special Laws specifically designed to enhance national security, and has joined the United States in its efforts in Afghanistan and Iraq. Your country's law enforcement and military officials, in several high-profile arrests that captured the attention of the populace, took three suspects into custody who allegedly were involved in terrorist-related activities. While …
Immigration And The Allure Of Inclusion, Ediberto Román
Immigration And The Allure Of Inclusion, Ediberto Román
Faculty Publications
Essentially, all immigrant stories concern labels and their consequences, including the fiction of the legal and illegal "alien. ' These labels in turn are created by immigration regimes that have the effect of establishing identities of both welcomed and unwelcome newcomers into a society. These fictions or labels occur within what can be described as the legal fiction of the nation-state. In many respects, all immigrant debates and accounts are tales of inclusion and membership within legal frameworks that decide which groups of people are deemed worthy of eventual formal membership within a political structure. Indeed, the label of "alien" …
The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber
The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber
Faculty Publications
Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …
Members And Outsiders: An Examination Of The Models Of United States Citizenship As Well As Questions Concerning European Union Citizenship, Ediberto Román
Members And Outsiders: An Examination Of The Models Of United States Citizenship As Well As Questions Concerning European Union Citizenship, Ediberto Román
Faculty Publications
Be it in the United States or across the Atlantic, notions of citizenship conjure up thoughts of nationalism, membership, equality, price and patriotism. Though these notions suggest a sense of inclusion, the term citizenship also conjures up, for many, feelings of exclusion and subordination. This article will examine the fact that despite the virtuous rhetoric associated with the term, the status of citizen is often an elusive ideal, notwithstanding the attainment of such status. While the status is theoretically to include a litany of rights as well as a perception of belonging, for many in this society, citizenship means neither. …
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
No-Drop Prosecution Of Domestic Violence: Just Good Policy, Or Equal Protection Mandate?, Kalyani Robbins
No-Drop Prosecution Of Domestic Violence: Just Good Policy, Or Equal Protection Mandate?, Kalyani Robbins
Faculty Publications
Domestic violence is a problem that must be dealt with for what it is: a criminal act. The only way to effectively diminish it is through the full force of the criminal justice system, which must treat domestic violence the same as it treats crime by strangers. The purpose of this note is to argue that aggressive prosecution of domestic violence-at least to the same extent that other violent crimes are prosecuted-is mandated by the Equal Protection Clause of the Fourteenth Amendment. Part I will examine the extent of the problems that pervade the criminal justice system, both historically and …
The Cy Pres Doctrine In The United States: From Extreme Reluctance To Affirmative Action, Frances Howell Rudko
The Cy Pres Doctrine In The United States: From Extreme Reluctance To Affirmative Action, Frances Howell Rudko
Faculty Publications
In Part I, the author illustrates how the United States jurisdictions differ from England in the requirement for charitable intent. Earlier cases reveal the United States, unlike England, has resisted relaxation of the requirement. In Part II, the author uses the Restatement of Trusts to demonstrate further how jurisdictions had developed differently at the mid-twentieth century point. In Part III, the author reports on the significant reforms in England and the corresponding, though halting, movement toward reform in the United States jurisdictions. In Part IV, the author describes the specific reform proposals in the United States proliferating since 1943. Finally, …
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
Faculty Publications
No abstract provided.
Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf
Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf
Faculty Publications
This Article starts with the premise that the right to unemployment insurance benefits is a property right protected by the Fifth and Fourteenth Amendments to the United States Constitution, which apply to noncitizen unemployment applicants as well as to United States citizens. Given this assumption, certain actions being taken by the United States Department of Labor ("DOL") violate both procedural and substantive due process as well as the Administrative Procedure Act ("APA"). The challenged actions involve the DOL's issuance of internally-created missives, termed Unemployment Insurance Program Letters ("Program Letters"), that purport to interpret the meaning of a requirement under federal …
The Constitutionality Of High-Speed Pursuits Under The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
The Constitutionality Of High-Speed Pursuits Under The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Establishing A Deprivation Of A Constitutional Right To Personal Security Under Section 1983: The Use Of Unjustified Force By State Officials In Violation Of The Fourth, Eighth, And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
The Parameters Of Constitutional Reconstruction: Slaughter-House, Cruikshank, And The Fourteenth Amendment, Robert C. Palmer
The Parameters Of Constitutional Reconstruction: Slaughter-House, Cruikshank, And The Fourteenth Amendment, Robert C. Palmer
Faculty Publications
No abstract provided.
Are Residential Quotas Constitutional?, Neal Devins
Are Residential Quotas Constitutional?, Neal Devins
Faculty Publications
No abstract provided.
“Taking” A Constitutional Look At The State Bar Of Texas Proposal To Collect Interest On Attorney-Client Trust Accounts, Thomas E. Baker, Robert E. Wood Jr.
“Taking” A Constitutional Look At The State Bar Of Texas Proposal To Collect Interest On Attorney-Client Trust Accounts, Thomas E. Baker, Robert E. Wood Jr.
Faculty Publications
No abstract provided.