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All Articles in Fourteenth Amendment

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Keeping Gideon'S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren Sudeall Lucas 2017 American Civil Liberties Union

Keeping Gideon'S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren Sudeall Lucas

Faculty Publications By Year

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant ...


After Flint: Environmental Justice As Equal Protection, David A. Dana, Deborah Tuerkheimer 2017 Northwestern Pritzker School of Law

After Flint: Environmental Justice As Equal Protection, David A. Dana, Deborah Tuerkheimer

Northwestern University Law Review

This Essay conceptualizes the Flint water crisis as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.


Post-Racialism And The End Of Strict Scrutiny, David Schraub 2017 University of California, Berkeley

Post-Racialism And The End Of Strict Scrutiny, David Schraub

Indiana Law Journal

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or ...


An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky 2017 Brigham Young University Law School

An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky

BYU Law Review

This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due ...


Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr. 2017 Cleveland-Marshall College of Law, Cleveland State University

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Matthew W. Green Jr.

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and ...


Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn 2017 St. John's University School of Law

Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn

The Catholic Lawyer

No abstract provided.


Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson 2017 Washington and Lee University

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of ...


The Right To Abortion: Expansion Of The Right To Privacy Through The Fourteenth Amendment, David Goldenberg 2017 St. John's University School of Law

The Right To Abortion: Expansion Of The Right To Privacy Through The Fourteenth Amendment, David Goldenberg

The Catholic Lawyer

No abstract provided.


Constitutional Incorporation: A Consideration Of The Judicial Function In State And Federal Constitutional Interpretation, Richard Boldt, Dan Friedman 2017 University of Maryland Francis King Carey School of Law

Constitutional Incorporation: A Consideration Of The Judicial Function In State And Federal Constitutional Interpretation, Richard Boldt, Dan Friedman

Maryland Law Review

No abstract provided.


American Nationals And Interstitial Citizenship, Rose Cuison Villazor 2017 UC Davis King Hall School of Law

American Nationals And Interstitial Citizenship, Rose Cuison Villazor

Fordham Law Review

Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have ...


Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell 2017 University of Michigan Law School

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those ...


Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander 2017 Brigham Young University Law School

Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander

BYU Law Review

No abstract provided.


Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens 2017 University of Maine School of Law

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This ...


Obscenity Law: Après Stanley, Le Deluge?, Michael J. Gaynor 2017 St. John's University School of Law

Obscenity Law: Après Stanley, Le Deluge?, Michael J. Gaynor

The Catholic Lawyer

No abstract provided.


Recent Abortion Litigation, Martin F. McKernan, Jr. 2017 St. John's University School of Law

Recent Abortion Litigation, Martin F. Mckernan, Jr.

The Catholic Lawyer

No abstract provided.


Raped Abroad: Extraterritorial Application Of Title Ix For American University Students Sexually Assaulted While Studying Abroad, Brittany K. Bull 2017 Northwestern University School of Law

Raped Abroad: Extraterritorial Application Of Title Ix For American University Students Sexually Assaulted While Studying Abroad, Brittany K. Bull

Northwestern University Law Review

Female college students who study abroad are five times more likely to be raped than their counterparts who remain on their domestic campuses. Students raped or sexually assaulted on or around campuses in the United States can seek a remedy under Title IX, which provides administrative and judicial remedies. Very few federal cases have ever addressed whether Title IX applies extraterritorially to allegations of sex discrimination occurring abroad, and courts have reached different results in these cases. Moreover, no federal circuit has ever addressed the issue. This Note explores whether Title IX applies extraterritorially to students raped while studying abroad ...


Discrimination In Employment, Housing, And Education: Constitutional Concepts And Social Theories, Frederick D. Braid 2017 St. John's University School of Law

Discrimination In Employment, Housing, And Education: Constitutional Concepts And Social Theories, Frederick D. Braid

The Catholic Lawyer

No abstract provided.


Beyond Rehabilitation: Constitutional Violations Associated With The Isolation And Discrimination Of Transgender Youth In The Juvenile Justice System, Sonja Marrett 2017 Boston College Law School

Beyond Rehabilitation: Constitutional Violations Associated With The Isolation And Discrimination Of Transgender Youth In The Juvenile Justice System, Sonja Marrett

Boston College Law Review

The juvenile justice system is predicated on a theory of rehabilitation with concern for protecting juveniles and society. For lesbian, gay, bisexual, and transgender (“LGBT”) youth, however, the system has developed into a punitive arrangement. LGBT youth face higher rates of criminalization and incarceration for non-violent crimes than any other group of youth. They also face unique threats, including sexual, physical, and emotional harassment; isolation; and a lack of medical care. Transgender youth are especially impacted. In response, victims have increasingly brought constitutional claims against federal prison officials for unconstitutional conditions of confinement. The courts are inconsistent on whether the ...


The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler 2017 University of Baltimore School of Law

The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler

Washington and Lee Law Review Online

No abstract provided.


Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk 2017 Charleston School of Law

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Marquette Law Review

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has ...


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