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The Forfeiture Forecast After Timbs: Cloudy With A Chance Of Offender Ability To Pay, Rachel J. Weiss 2020 Boston College Law School

The Forfeiture Forecast After Timbs: Cloudy With A Chance Of Offender Ability To Pay, Rachel J. Weiss

Boston College Law Review

On February 20, 2019, the United States Supreme Court handed down a landmark decision in Timbs v. Indiana by unanimously holding that the Eighth Amendment’s Excessive Fines Clause applies to states as incorporated by the Fourteenth Amendment’s Due Process Clause. In so doing, the Court armed state litigants with a seemingly powerful constitutional protection against civil asset forfeiture. In reality, however, the Timbs decision raised far more questions than it resolved. Justice Ginsburg’s majority opinion implicitly endorsed Court precedent that would limit forfeiture assessment to a gross disproportionality standard. Yet the opinion also chronicled the history of ...


Political Culture And Abortion Policy, Caleb J. Evans 2020 Oklahoma City University

Political Culture And Abortion Policy, Caleb J. Evans

The Macksey Journal

Abortion policy in the United States varies greatly from state to state. The general understanding is that states controlled by Democrats are friendly towards abortion and states controlled by Republicans are more hostile towards abortion rights. In the research paper, this is displayed by the state of Oklahoma. However, the states of Rhode Island and Montana both defy this generally accepted trend. Rhode Island is a Democratically controlled state with a strong history of abortion restrictions, while Montana is a Republican-controlled state with a track record of more lax policy on reproductive rights. This research paper delves into the political ...


Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie 2020 Harvard Law School

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates ...


Cycles Of Punishment: The Constitutionality Of Restricting Access To Menstrual Health Products In Prisons, Mitchell O'Shea Carney 2020 Boston College Law School

Cycles Of Punishment: The Constitutionality Of Restricting Access To Menstrual Health Products In Prisons, Mitchell O'Shea Carney

Boston College Law Review

Despite the recent passage of federal legislation requiring free access to menstrual health products in federal prisons, many women in state and local prisons continue to have inadequate access to these products. Not only do most prisons provide subpar menstrual health products in terms of quality, prisons often do not provide enough of these products to allow for individuals to change their pads and tampons at the doctor-recommended frequency. As a result, incarcerated women are at a heightened risk of toxic shock syndrome, sepsis, and ovarian cancer. This Note argues that, because differential treatment on the basis of menstruation is ...


Enough Is As Good As A Feast, Noah C. Chauvin 2020 Seattle University School of Law

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ...


Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons 2020 New York University School of Law

Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons

Indiana Law Journal

This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case ...


What Is "Appropriate" Legislation?: Mcculloch V. Maryland And The Redundancy Of The Reconstruction Amendments, Franita Tolson 2020 University of Southern California

What Is "Appropriate" Legislation?: Mcculloch V. Maryland And The Redundancy Of The Reconstruction Amendments, Franita Tolson

Arkansas Law Review

I am thankful for the opportunity to review Professor David Schwartz’s really thoughtful and incisive critique of McCulloch v. Maryland. The book is a creative and masterful reinterpretation of a decision that I thought I knew well, but I learned a lot of new and interesting facts about McCulloch and the (sometimes frosty) reception that the decision has received over the course of the last two centuries. Professor Schwartz persuasively argues that modern views of McCulloch as a straightforward nationalist decision that has always had a storied place in the American constitutional tradition are flat-out wrong. The Spirit of ...


Table Of Contents, Seattle University Law Review 2020 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford 2020 Elisabeth Haub School of Law at Pace University

Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford

Pace Law Faculty Publications

Many universities around the United States are attempting to grapple with their institution’s history of direct and indirect involvement with transatlantic slavery. One of the first schools to do so was Brown University, which appointed a special committee in 2003 to study its historic institutional ties to slavery. After three years of investigation and discussion, the Brown committee recommended the creation of a public campus memorial and widespread educational efforts. In 2015, Georgetown University undertook a similar investigation on its campus; the working group ultimately recommended renaming certain university buildings, erecting public memorials, creating an academic center of the ...


You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell 2020 William & Mary Law School

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note ...


Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley 2020 Indiana University, Maurer School of Law

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the ...


South Dakota V. Wayfair: An Ill-Conceived Blow To The Free Flow Of Interstate Commerce, Revel Shinn Atkinson 2020 Brooklyn Law School

South Dakota V. Wayfair: An Ill-Conceived Blow To The Free Flow Of Interstate Commerce, Revel Shinn Atkinson

Brooklyn Journal of Corporate, Financial & Commercial Law

For more than a century, brick-and-mortar retailers have been losing local customers—first with the rise of mail-order houses and then more acutely with the rapid growth of online retail. As a result, states have noticed a significant loss in sales tax revenue. While an equivalent amount of tax is typically still owed to the state in the form of a use tax, which is to be remitted to the state by the customer, because these taxes are not automatically collected at the time of the sale, customers have overwhelmingly elected not to pay them. In an effort to recover ...


A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock 2020 Chief Judge, United States Court of Appeals for the Tenth Circuit

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the ...


Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal 2020 William & Mary Law School

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.


Free The Nipple–Fort Collins And The Enduring Fight For Gender Equality, Maria Massimo 2020 Boston College Law School

Free The Nipple–Fort Collins And The Enduring Fight For Gender Equality, Maria Massimo

Boston College Law Review

On February 15, 2019, the United States Court of Appeals for the Tenth Circuit in Free the Nipple–Fort Collins v. City of Fort Collins held that a public nudity ordinance that banned the exposure of female breasts violated the Equal Protection Clause. In doing so, the court split from the Fourth, Seventh, and Eighth Circuits and established that ordinances that restrict women, but not men, from being topless in public are unconstitutional. This Comment argues that the Tenth Circuit was correct in holding that the prohibition on public exposure of female breasts violated the Equal Protection Clause, as the ...


Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos 2020 The Catholic University of America, Columbus School of Law

Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos

Catholic University Law Review

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments.

Part I of this note ...


Restoring The Rights Multiplier: The Right To An Education In The United States, Katherine Smith Davis, Jeffrey Davis 2020 Brooklyn Law School

Restoring The Rights Multiplier: The Right To An Education In The United States, Katherine Smith Davis, Jeffrey Davis

Journal of Law and Policy

In 1973 the U.S. Supreme Court ruled that education was not a fundamental right, leaving in place systems that continue today to perpetrate vast inequities among school districts. Through a comparative analysis of treaties, constitutions, legislation, and international and state judicial decisions, we demonstrate that education is indeed a fundamental human right, though our constitutional jurisprudence has denied its fundamental right status. We use case studies from Baltimore, a typical city whose residents face economic hardships, to reveal the dire consequences of this ruling. Without the right to an education, schoolchildren in poor systems continue to be deprived of ...


The Equal Protection Clause & Suspect Classifications: Children Of Undocumented Entrants, Selene C. Vázquez 2020 University of Miami Law School

The Equal Protection Clause & Suspect Classifications: Children Of Undocumented Entrants, Selene C. Vázquez

University of Miami Inter-American Law Review

No abstract provided.


Political And Non-Political Speech And Guns, Gregory P. Magarian 2020 William & Mary Law School

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.


The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman 2020 William & Mary Law School

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what ...


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