Fourteenth Amendment Commons^™

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

Articles

If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

My Body, Not My Say: Justice Blackmun's Influential Decision In Roe V. Wade, Kisha K. Patel

Gender, Women's, and Sexuality Studies Summer Fellows

Abortion laws have regulated women’s bodies since the beginning of the country. Many people associate regulation with the case of Roe V. Wade in 1973, in which the Supreme Court ruled that states could not outlaw abortion during the first trimester. Roe v. Wade remains controversial to this day as it failed to establish consensus that women’s decision whether or not to terminate a pregnancy falls within their constitutional right to privacy. Understanding the implications of this decision is fundamental to analyze the debate over the constitutionality of abortion today. This paper examines the opinion written by Justice Blackmun in …

Nevada's Education Savings Accounts: A Constitutional Analysis, Thomas W. Stewart, Brittany Walker

Nevada Supreme Court Summaries

This piece will analyze potential conflicts between Senate Bill 302 and Article XI of the Nevada Constitution to explore the constitutionality of educational savings accounts.

Combining Constitutional Clauses, Michael Coenen

Journal Articles

No abstract provided.

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Martin Luther King, Jr. Celebration Keynote Address: The Honorable Carlton W. Reeves, United States District Court For The Southern District Of Mississippi, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

All Faculty Scholarship

Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

It’S Time For The Fourth Circuit To Rethink Deshaney, Dale Margolin Cecka

Law Faculty Publications

In 2015, the Fourth Circuit heard Doe v. Rosa, in which the parent plaintiffs sought to extend civil liability to the Citadel’s president, for failing to protect their minor sons from sex abuse inflicted by one of the Citadel’s employees. In dismissing the matter, the Fourth Circuit followed precedent set by the Supreme Court years ago in Deshaney. This interpretation of Deshaney, however, is no longer valid in light of the growing number of sexual misconduct cases involving educational institutions. Strictly applying Deshaney encourages schools to place their interests higher than the security of their students. In …

The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

All Faculty Scholarship

We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Fundamental Rights In A Post-Obergefell World, Peter Nicolas

Articles

In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in …

Rejecting The Tattooed Applicant, Disciplining The Tattooed Employee: What Are The Risks?, Stephen Allred

Law Faculty Publications

In the last twenty years, there has been a significant rise in the popularity of tattoos. Once relegated to the marginal realm of sailors, motorcycle gang members, or dock workers, tattoos are now proudly displayed by NBA stars, rock artists, and film actors. Perhaps not surprisingly, American workers, particularly younger workers, have emulated their idols and obtained tattoos too—at a remarkable rate. In fact, a 2012 Harris Poll found that one in five American adults had at least one tattoo. And while increasing percentages of Americans view tattoos as acceptable (indeed, even as art), tattoos still carry a persistent stigma …

Unleashing The Fourteenth Amendment, Ann L. Schiavone

Law Faculty Publications

Do Justice Anthony Kennedy's opinions in the gay rights cases of Romer v. Evans,2 Lawrence v. Texas,³ United States v. Windsor,⁴ and Obergefell v. Hodges⁵ have any impact on the future of Fourteenth Amendment jurisprudence beyond rights for gays., lesbians, and transgender persons? We don't know. It is possible these cases will simply remain siloed in their unique legal and cultural niche, but viewing tbem through the lens of 150 years of Fourteenth Amendment jurisprudence suggests they may signaJ a shift in due process and equal protection analysis. This shift couJd open the doors …

Race Based Medicine, Color Blind Disease: How Racial Preferences In Violation Of The 14th Amendment Are Killing Us All, Ruqaiijah Yearby

All Faculty Scholarship

Disease is color blind, but medicine is not. For example, sickle cell disease is often discussed in terms of a Black disease; however, people of all different races suffer from sickle cell. Moreover, sickle cell is found in a number of places that have little to no Blacks, such as Afghanistan, Bangladesh, Burma, and Honduras. Nevertheless, health care providers often provide people of different races different levels of care justifying their disparate treatment based on scientific claims. However, not only are these scientific claims baseless, but also the explicit use of race to determine what medical treatment is provided patients …

If Corporations Are People, Why Can’T They Play Tag?, Cody Jacobs

Faculty Scholarship

The Supreme Court’s decision in Burnham v. Superior Court — despite producing a splintered vote with no opinion garnering a majority of the Court — made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient or “tag” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and used to be the primary method for determining whether an out of state defendant …

On Pride’S Eve, The State Of Transgender Equality, Arthur S. Leonard

Other Publications

No abstract provided.

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos

Articles

At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being. In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that …

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Articles

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.

The High Power Of The Lower Courts, Doni Gewirtzman

Other Publications

No abstract provided.