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Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce de R. Barondes 2023 University of Missouri School of Law

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 …


Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman 2022 Center for Individual Rights

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …


Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman 2022 John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science, Department of Philosophy Affiliated Faculty, Northwestern University

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …


The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby 2022 William & Mary Law School

The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby

William & Mary Law Review Online

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental …


The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis 2022 Pepperdine University

The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis

Pepperdine Law Review

In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …


It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey 2022 Washington and Lee University School of Law

It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey

Washington and Lee Journal of Civil Rights and Social Justice

In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …


Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash 2022 University of Richmond

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …


Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson 2022 Howard University School of Law

Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson

Washington and Lee Law Review

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the …


Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw 2022 Notre Dame Law School

Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw

Journal of Legislation

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and …


Book Review: The Mighty Roe Has Fallen (Probably): A Call To Action As An Antidote To Despair, Loreen Peritz 2022 Brooklyn Law School

Book Review: The Mighty Roe Has Fallen (Probably): A Call To Action As An Antidote To Despair, Loreen Peritz

Journal of Law and Policy

Reviewing CONTROLLING WOMEN: WHAT WE MUST DO NOW TO SAVE REPRODUCTIVE FREEDOM. By Kathryn Kolbert & Julie Kay. New York, NY: Hachette Books, 2021. 304 pp., $29.00


Constitutional Law—Fourteenth Amendment And Fetal Personhood—Established Injustice: American Abortion Jurisprudence And The Irreducible, Geoffrey "Chip" Gross 2022 University of Arkansas at Little Rock William H. Bowen School of Law

Constitutional Law—Fourteenth Amendment And Fetal Personhood—Established Injustice: American Abortion Jurisprudence And The Irreducible, Geoffrey "Chip" Gross

University of Arkansas at Little Rock Law Review

No abstract provided.


Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider 2022 Brigham Young University Law School

Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider

BYU Law Review

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …


The Problem Of Blackness In America: Becoming When The Being Never Comes To Be, Nkiru Anyaegbunam 2022 The Graduate Center, City University of New York

The Problem Of Blackness In America: Becoming When The Being Never Comes To Be, Nkiru Anyaegbunam

Dissertations, Theses, and Capstone Projects

The problem of Blackness in America is a consequence of the historical reality and continued legacies of colonialism, the triangular trade and chattel slavery that have been facilitated through violence and capitalism. This thesis will argue that this problem that is pronounced through racialized institutional systems of violence such as mass incarceration and housing inequality, which disproportionately negatively impacts Black Americans is part of a larger discourse on the human and (mis)recognition. This violence has created a quintessential incompleteness for Black Americans who neither are recognized as citizens nor human. The problem of Blackness will be continuously grounded in this …


The Dark Side Of Due Process: Part I, A Hard Look At Penumbral Rights And Cost/Benefit Balancing Tests, Joshua J. Schroeder 2022 St. Mary's University

The Dark Side Of Due Process: Part I, A Hard Look At Penumbral Rights And Cost/Benefit Balancing Tests, Joshua J. Schroeder

St. Mary's Law Journal

Due process is the fountainhead of legitimate government coercion. When an individual’s rights of life, liberty, or property are at stake, the government is meant to apply due process of the law or suffer reversal of its intrusions as a plain trespass. However, such reversals are merely theoretical, premised upon the willingness of federal judges to interpose their power for the protection of ordinary individuals.

The willingness of federal jurists to check the other branches of government for individual rights is transient at best. They do not usually check the global, dragnet United States surveillance programs that clearly violate the …


Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe 2022 University of New Hampshire Franklin Pierce School of Law

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …


And A Public Defender For All, Sara Mayeux 2022 Vanderbilt University Law School

And A Public Defender For All, Sara Mayeux

Vanderbilt Law School Faculty Publications

The Senate confirmation of Ketanji Brown Jackson to the Supreme Court last week means that she is soon to be the first Supreme Court justice with prior experience as a federal public defender. This is historic in its own right, though it is not quite as surprising on closer inspection, since the institution of the federal public defender — in its currently prevailing organizational particulars, anyway — dates back only to the 1970s. Still, given that several of the justices previously worked as federal prosecutors, Jackson’s confirmation injects a welcome measure of professional balance to the lineup. Moreover, Jackson can …


Warrant Nullification, L. Joe Dunman 2022 Morehead State University

Warrant Nullification, L. Joe Dunman

West Virginia Law Review

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people's homes. Many search warrants are executed by militarized "dynamic entry" teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide-not just suspects but also officers and bystanders. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This Article explores one such option: nullification. …


Mitigating The Discretion Disaster: How Changes In The Law Can Help Fema Effectuate Its Critical Mission, Paul G. Rando 2022 University of Cincinnati College of Law

Mitigating The Discretion Disaster: How Changes In The Law Can Help Fema Effectuate Its Critical Mission, Paul G. Rando

University of Cincinnati Law Review

No abstract provided.


A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron 2022 University of Cincinnati College of Law

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.


Pov: What Rights Could Unravel Next, In Light Of Draft Opinion By Scotus Overturning Roe V. Wade, Robert L. Tsai 2022 Boston University School of Law

Pov: What Rights Could Unravel Next, In Light Of Draft Opinion By Scotus Overturning Roe V. Wade, Robert L. Tsai

Shorter Faculty Works

Beyond what Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization portends for the future of abortion rights is the striking method of analysis he employs in the reported draft. Despite his many efforts to reassure that the opinion “does not undermine” other constitutional rights “in any way,” it actually outlines a roadmap for the withdrawal of other cherished constitutional rights.


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