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Racial Indirection, Yuvraj Joshi 2019 Yale Law School

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. The Article then discusses the potential benefits and costs of adopting indirection in affirmative action, and describes disagreements among Justices about the value of indirection ...


Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield 2019 Boston College Law School

Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield

Kent Greenfield

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...


The Constitution As Poetry, Samuel J. Levine 2019 Touro Law Center

The Constitution As Poetry, Samuel J. Levine

Samuel J. Levine

Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


To Be Physically Present Or Not To Be Physically Present: The Use Of Videoconferences During Felony Proceedings, Meaghan Annett 2019 Boston College Law School

To Be Physically Present Or Not To Be Physically Present: The Use Of Videoconferences During Felony Proceedings, Meaghan Annett

Boston College Law Review

In April 26, 2018, the United States Court of Appeals for the Seventh Circuit held, in United States v. Bethea, that a felony defendant could not affirmatively waive his right to be physically present in the courtroom, despite requesting to appear via videoconference during his combined plea and sentencing hearing. Bethea represented a matter of first impression among the federal circuit courts. This Comment argues that the Seventh Circuit’s decision is in line with the decisions its sister circuits regarding similar questions that strictly interpreted the plain text of Rule 43 of the Federal Rules of Criminal Procedure. This ...


Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon 2019 Northwestern Pritzker School of Law

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.


Whole Woman’S Health V. Hellerstedt, Kelly Lynn Claxton 2019 Ohio Northern University Pettit College of Law

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

Ohio Northern University Law Review

No abstract provided.


Fisher V. University Of Texas At Austin, Christopher M. Calpin 2019 Ohio Northern University Pettit College of Law

Fisher V. University Of Texas At Austin, Christopher M. Calpin

Ohio Northern University Law Review

No abstract provided.


Thornton & The Pursuit Of The American Presidency, Jackson C. Smith J.D., LLM 2019 Ohio Northern University

Thornton & The Pursuit Of The American Presidency, Jackson C. Smith J.D., Llm

Ohio Northern University Law Review

No abstract provided.


Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez 2019 Duke Law

Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez

Duke Journal of Constitutional Law & Public Policy Sidebar

In Timbs v. Indiana, Petitioner Tyson Timbs asks the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment against the states, providing extra protection for individuals against fines and forfeiture that are “grossly disproportionate” to the harm caused. The decision to incorporate the Excessive Fines Clause and the guidelines for applying that incorporation would have a substantial effect on governments, which often rely on the revenue gained from forfeiture. This commentary argues that the Supreme Court of the United States should incorporate the Excessive Fines Clause based on historical support of an individual’s right to be ...


Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman 2019 Duke Law

Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary highlights the considerations the Supreme Court should attend to in its decision in Virginia Uranium, Inc. v. Warren, both in construing § 2021(k) and in reviewing the Fourth Circuit’s reading of precedent from other circuits and from the Court’s prior opinions. Specifically, the Court must clarify how to interpret § 2021(k)’s activities component in concert with its “for purposes” language and determine the importance of the particular underlying activity the state seeks to regulate in a preemption analysis under the Atomic Energy Act. Clarification is necessary to ensure that courts properly effectuate Congress’s intent ...


Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez 2019 Duke Law

Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez

Duke Journal of Constitutional Law & Public Policy Sidebar

Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further extends to ...


Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp 2019 Duke Law

Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp

Duke Journal of Constitutional Law & Public Policy Sidebar

The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v ...


No Indeterminate Sentencing Without Parole, Katherine Puzauskas, Kevin Morrow 2019 Sandra Day O'Connor College of Law

No Indeterminate Sentencing Without Parole, Katherine Puzauskas, Kevin Morrow

Ohio Northern University Law Review

This article looks critically at the indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993. It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline. Next it compares two commonly confused forms of “release”: parole and executive clemency. The article then examines the three types of defendants affected by indeterminate sentences without parole: death row defendants denied parole eligibility instructions at trial, defendants sentenced with parole at trial, and defendants whose plea agreement includes parole. Finally, the article argues that without parole ...


Youth And Punishment At The Roberts Court, Sara Mayeux 2019 Selected Works

Youth And Punishment At The Roberts Court, Sara Mayeux

Sara Mayeux

No abstract provided.


Qualified Tenure: Presidential Removal Of The Fbi Director, Leah A. Hamlin J.D. 2019 Clerk, Central District of California

Qualified Tenure: Presidential Removal Of The Fbi Director, Leah A. Hamlin J.D.

Ohio Northern University Law Review

In 1976, Congress passed a bill instituting a ten-year term for the FBI director, ostensibly to provide the head of the nation’s foremost law enforcement agency some measure of independence from political pressure that could improperly influence investigations. This note explores the impact of the tenured term on the president’s power to remove the director at will for a personal reason, a political reason, or no reason at all. Although the Supreme Court has never directly addressed the president’s power with respect to the FBI director, this note concludes that a statutory term alone does not restrict ...


The Authors' Reply To Commentaries On, And Criticisms Of The Militia And The Right To Arms, Or, How The Second Amendment Fell Silent, H. Richard Uviller, William G. Merkel 2019 Selected Works

The Authors' Reply To Commentaries On, And Criticisms Of The Militia And The Right To Arms, Or, How The Second Amendment Fell Silent, H. Richard Uviller, William G. Merkel

William G. Merkel

No abstract provided.


Punishing Poverty: Robinson & The Criminal Cash Bond System, Lauren Bennett 2019 Washington and Lee University School of Law

Punishing Poverty: Robinson & The Criminal Cash Bond System, Lauren Bennett

Washington and Lee Journal of Civil Rights and Social Justice

The current cash bail system works in a way that punishes poverty. In Robinson v. California, the Supreme Court held that it is unconstitutional under the Eighth Amendment to punish an individual for a status or condition. Poverty is a status. The cash bail system is unconstitutional under Robinson and the Eighth Amendment because it punishes the status of poverty. Similar to drug addiction, poverty “may be contracted innocently or involuntarily or it might even take hold from the moment of a person’s birth.” Kalief Browder had no control over his family’s financial position. Yet, this financial position ...


Dogs Of War Get A New Lease On Life: Why The Military Extraterritorial Jurisdiction Act Violates The Eighth Amendment In Light Of United States V. Slatten, Michael D. Stinnett-Kassoff 2019 Washington and Lee University School of Law

Dogs Of War Get A New Lease On Life: Why The Military Extraterritorial Jurisdiction Act Violates The Eighth Amendment In Light Of United States V. Slatten, Michael D. Stinnett-Kassoff

Washington and Lee Journal of Civil Rights and Social Justice

The United States has relied on Private Military Firms (PMFs) extensively to carry out its numerous overseas military missions since the end of the Cold War. Civilians and contractors have always had a place in American wars, even during the American Revolution and beyond. But the recent American incursions into Afghanistan and Iraq brought an unprecedented number of private contractors into the forefront of these conflict zones, the discussions surrounding them, and the legal questions arising from their ashes. Particularly, private contractors in Iraq seemed to be operating in a legal grey area—they clearly were not soldiers, and they ...


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes 2019 Texas A&M University School of Law

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that ...


Property-As-Society, Timothy M. Mulvaney 2019 Texas A&M University School of Law

Property-As-Society, Timothy M. Mulvaney

Timothy M. Mulvaney

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception ...


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