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Unequal Protection: Examining The Judiciary’S Treatment Of Unwed Fathers, Brett Potash 2018 Touro College Jacob D. Fuchsberg Law Center

Unequal Protection: Examining The Judiciary’S Treatment Of Unwed Fathers, Brett Potash

Touro Law Review

No abstract provided.


Did The African-American Electorate Unintentionally Help Elect Donald Trump President?, C. Daniel Chill 2018 Touro College Jacob D. Fuchsberg Law Center

Did The African-American Electorate Unintentionally Help Elect Donald Trump President?, C. Daniel Chill

Touro Law Review

No abstract provided.


Income-Dependent Punitive Damages, Ronen Perry, Elena Kantorowicz-Reznichenko 2018 University of Haifa

Income-Dependent Punitive Damages, Ronen Perry, Elena Kantorowicz-Reznichenko

Washington University Law Review

The Article unfolds in six parts. Part I outlines the development of the law governing punitive damages. Part II analyzes the possible rationales for this unique “middle-ground” doctrine, focusing on deterrence and retribution. Part III considers whether the defendant’s wealth should be considered in assessing punitive damages in light of their underlying goals. Part IV demonstrates how the defendant’s wealth can be integrated into the calculation. It extracts the foundations from European criminal justice systems and adapts the model to American civil law. Part V defends the proposed model from the relevant theoretical perspectives. Lastly, Part VI discusses ...


Remedies And The Government's Constitutionally Harmful Speech, Helen Norton 2018 University of Colorado Law School

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Articles

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory ...


Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young 2018 Duke Law School

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction ...


Teaching The Transformative Fourteenth Amendment, Joel K. Goldstein 2018 Saint Louis University School of Law

Teaching The Transformative Fourteenth Amendment, Joel K. Goldstein

All Faculty Scholarship

If the constitutional law casebooks are a reliable guide, most teach the Fourteenth Amendment, like other parts of the Constitution, by presenting separately the various doctrinal topics it has raised.[1] The principal clauses of the Amendment, or really those in the second sentence of Section 1[2]—the Equal Protection, Due Process, and Privileges or Immunities Clauses—are generally extracted from its text and classes are structured around the leading cases decided under each and the resulting doctrine. Cases under the Equal Protection or Due Process Clause may be further separated. Based on the class of claimants, for instance ...


Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira 2017 Cleveland-Marshall College of Law

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against ...


The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana 2017 Brooklyn Law School

The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Brooklyn Journal of International Law

Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to ...


Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small 2017 University of Maine School of Law

Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small

Maine Law Review

Rideout v. Riendeau presented a case in which two grandparents, Rose and Chesley Rideout, sought visitation of their three grandchildren. Though the Rideouts had served as the childrens' “primary caregivers and custodians” for significant periods of time, the childrens' parents, Heaven-Marie Riendeau, who was the Rideouts' daughter, and Jeffrey Riendeau, ended all contact between the children and the Rideouts due to a strained relationship between the Rideouts and the Riendeaus. The Rideouts filed a complaint pursuant to Maine's Grandparents Visitation Act (the Act), which allows grandparents to bring a petition for visitation when there is a “sufficient existing relationship ...


With Malice Toward One: Malice And The Substantive Law In "Class Of One" Equal Protection Claims In The Wake Of Village Of Willowbrook V. Olech, Shaun M. Gehan 2017 University of Maine School of Law

With Malice Toward One: Malice And The Substantive Law In "Class Of One" Equal Protection Claims In The Wake Of Village Of Willowbrook V. Olech, Shaun M. Gehan

Maine Law Review

It may be time to relearn the fundamentals of the Equal Protection Clause of the Fourteenth Amendment. According to the Supreme Court, in a brief and unassuming per curiam opinion in Village of Willowbrook v. Olech, violations of equal protection do not of necessity rely on class-based discriminations. Federal, state, and local governments can violate the equal protection rights of an individual qua individual; a so-called “class of one.” The ramifications of this decision are just now becoming clear, and it has already led to some surprising results in areas of statutory law thought to be well settled. The only ...


Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck 2017 University of Michigan Law School

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender and Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how ...


Due Process Abroad, Nathan Chapman 2017 University of Georgia

Due Process Abroad, Nathan Chapman

Scholarly Works

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up ...


Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh 2017 St. John's University School of Law

Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh

The Catholic Lawyer

No abstract provided.


Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson 2017 St. John's University School of Law

Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson

The Catholic Lawyer

No abstract provided.


Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson 2017 Valparaiso University Law School

Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson

Notre Dame Law Review

Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority’s analysis and the dissent’s objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official’s failure to protect or failure to care for the medical and other needs of pretrial detainees ...


The Failure Of Education Federalism, Kristi L. Bowman 2017 Michigan State University College of Law

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging ...


Legal/Legislative Issues In Euthanasia And Physician-Assisted Suicide, Edward Grant 2017 St. John's University School of Law

Legal/Legislative Issues In Euthanasia And Physician-Assisted Suicide, Edward Grant

The Catholic Lawyer

No abstract provided.


The Right To Self-Directed Death: Reconsidering An Ancient Proscription, G. Steven Neeley 2017 St. John's University School of Law

The Right To Self-Directed Death: Reconsidering An Ancient Proscription, G. Steven Neeley

The Catholic Lawyer

No abstract provided.


The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein 2017 University of Maine School of Law

The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein

Maine Law Review

In Adoption of M.A., the Maine Supreme Judicial Court, sitting as the Law Court, held that an unmarried, same-sex couple could file a joint petition for adoption of two foster children in their care. This recent decision is only a fraction of a story that originated a long time ago when same-sex couples began raising children. This Comment begins by examining the role of the state courts and the United States Supreme Court in their exposition of family law relating to adoption by same-sex couples. The United States Supreme Court has periodically weighed in on family law and parenting ...


Bray V. Alexandria Women's Health Clinic: Abortion Protesters Are Not Liable Under The Ku Klux Klan Act, Sue Mota 2017 St. John's University School of Law

Bray V. Alexandria Women's Health Clinic: Abortion Protesters Are Not Liable Under The Ku Klux Klan Act, Sue Mota

The Catholic Lawyer

No abstract provided.


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