Law Commons^™

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Jennifer Daskal

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as …

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Is Brown Holding Us Back? Moving Forward, Sixty Years Later, Palma Joy Strand

palma joy strand

Brown v. Board of Education brought the democratic value of equality to U.S. democracy, which had previously centered primarily on popular control. Brown has not, however, resulted in actual educational equality—or universal educational quality. Developments since Brown have changed the educational landscape. While the social salience of race has evolved, economic inequality has risen dramatically. Legislative and other developments have institutionalized distrust of those who do the day-to-day work of education: public schools and the teachers within them. Demographic and economic shifts have made comprehensive preschool through post-secondary education a 21st-century imperative, while Common Core Standards represent a significant step …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck

Whitney Scherck

Thirty years ago, the U.S. Supreme Court in Bearden v. Georgia held that the Equal Protection Clause of the Fourteenth Amendment prevents a court from incarcerating an individual for failure to pay a fine unless it first inquires into their reasons for failing to do so and determines that the defendant willfully failed to make bona fide efforts to pay. However, recently, a new kind of legal debt has emerged. As states’ budgets tighten, so-called user fees are becoming an increasingly common way for legislatures to toughen the criminal justice system without having to come up with funding for it. …

Workers’ Compensation And The Right To Interstate Travel – Schatz V Interfaith Care Centre, Mel Cousins

Mel Cousins

In Schatz, the Minnesota supreme court considered the interesting question of the right to interstate travel as it affects workers’ compensation. While we know that durational residence requirements for welfare benefits and medical care are likely to be found to be unconstitutional, the US courts have to date not greatly explored where other conditions of social security, workers compensation or welfare schemes may impinge on the right to interstate travel. In order to set the groundwork, Part 1 of this note sets out the Supreme Court’s decisions concerning benefits and the right to travel, focusing on the aspects of most …

Amicus Brief: State V. Glover (Maine Supreme Judicial Court), Adam Lamparello, Charles Maclean

Adam Lamparello

When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence—under the United States and Maine Constitutions—might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.

Suspect Classification And Its Discontents, Susannah W. Pollvogt

Susannah W Pollvogt

Suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. But neither doctrine finds firm footing in precedent or theory. Rather, a close examination of the United States Supreme Court’s equal protection jurisprudence reveals these doctrines as historically contingent and lacking in any principled justification. But rather than disregard the contributions of these cases altogether, this Article mines that same body of law not for the discrete doctrinal mechanisms developed in each case, but …

Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren

Geoffrey Heeren

Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and …

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Wilson R. Huhn

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Urban Bias, Rural Sexual Minorities, And The Courts, Luke Boso

Luke A. Boso

Urban bias shapes social perceptions about sexual minorities. Predominant cultural narratives geographically situate sexual minorities in urban gay communities, dictate the contours of how to be a modern gay person, and urge sexual minorities to “come out” and assimilate into gay communities and culture. This Article contests the urban presumption commonly applied to all sexual minorities and focuses specifically on how it affects rural sexual minorities, who remain largely invisible in the public discourse about sexuality and equality.

This Article makes two important contributions. First, by exposing urban bias, it contributes to a broader discussion about how law and society …

Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins

Mel Cousins

The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …

Rethinking Abortion: Equal Choice, The Constitution, And Reproductive Politics, Mark Graber

Mark Graber

Mark Graber looks at the history of abortion law in action to argue that the only defensible, constitutional approach to the issue is to afford all women equal choice--abortion should remain legal or bans should be strictly enforced. Steering away from metaphysical critiques of privacy, Graber compares the philosophical, constitutional, and democratic merits of the two systems of abortion regulation witnessed in the twentieth century: pre-Roe v. Wade statutory prohibitions on abortion and Roe's ban on significant state interference with the market for safe abortion services. He demonstrates that before Roe, pro-life measures were selectively and erratically administered, thereby …

Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Tracy A. Thomas

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler

Aaron J Shuler

Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …

The State Marriage Cases: Implications For Hawaii's Marriage Equality Debate In The Post-Romer And Lawrence Era, Kristin D. Shotwell

Kristin D Shotwell

No abstract provided.

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Wilson R. Huhn

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

A (Trans) Gender-Inclusive Equal Protection Analysis Of Public Female Toplessness, Luke Boso

Luke A. Boso

Federal, state, and municipal laws have long regulated, and often blanketly prohibited, the exposure of female breasts in public venues for a variety of purported reasons. Generally worded to prohibit the exhibition of the “female breast with less than a fully opaque covering or any portion thereof below the top of the nipple,” nudity-regulating laws lack a similar provision for male breasts, and, in fact, exclude the male torso from coverage entirely.

Pursuant to the Supreme Court’s sex-based discrimination jurisprudence, advocates for topfree equality have repeatedly challenged these laws in court, arguing that they violate U.S. and state constitutions’ equal …

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

The Usual Suspect Classifications: Criminals, Aliens And The Future Of Same-Sex Marriage, Michael A. Helfand

Michael A Helfand

In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as traits that are in the words of the Supreme Court in Frontiero v. Richardson, mere "accident[s] of birth." In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in …

Lawrence V. Texas: When Profound And Deep Convictions Collide With Liberty Interests, Nancy J. Knauer

Nancy J. Knauer

This Essay offers a brief analysis of Lawrence v. Texas, arguing that Justice Kennedy's recognition of a liberty interest is preferable to the Equal Protection analysis urged by the Petitioners and advanced by Justice O'Connor. Equality arguments based on orientation and group affiliation in the absence of a core right to sexual autonomy reinforce a view of stable gay identities that is ultimately disingenuous and disempowering. After seventeen years of attempts by pro-gay advocates to bifurcate conduct from status and sidestep Bowers v. Hardwick, Justice Kennedy's majority opinion has conclusively put the sex back into homosexual. Under Equal Protection analysis, …

Equal Protection’S Antinomies And The Promise Of A Co-Constitutive Approach, Julie Nice

Julie A. Nice

This article explores how a central insight of Law and Society scholarship – that law and society are mutually constitutive – explains and informs Equal Protection jurisprudence. Professor Nice describes the state of equal protection discourse as caught in perpetual antinomic debates, with courts typically endorsing the more conservative alternative within such debates, including: (1) adopting assimilation (not anti-subordination) as the goal; (2) treating subordinated persons the same as (not different than) dominant persons; (3) looking backward toward remediation (not forward toward substantive equality); (4) requiring blindness (not consciousness) of the relevant trait; (5) focusing on the classifying trait (not …

Revisiting Gay Rights Coalition Of Georgetown Law Center V. Georgetown University A Decade Later: Free Exercise Challenges And The Nondiscrimination Laws Protecting Homosexuals, Matthew J. Parlow

Matthew Parlow