Law Commons^™

R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro

Cleveland State Law Review

This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out …

Dobbs And The Future Of Liberty And Equality, Kim Forde-Mazrui

Cleveland State Law Review

This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status. …

The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh

Cleveland State Law Review

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …

Holding The Big House Accountable: The Sixth Circuit Concludes A Pretrial Detainee's Fourteenth Amendment Deliberate Indifference Claim Is A Wholly Objective Determination, Noah Speitel

Villanova Law Review

No abstract provided.

“Protection For Every Class Of Citizens”: The New York City Draft Riots Of 1863, The Equal Protection Clause, And The Government’S Duty To Protect Civil Rights, Andrew J. Lanham

UC Irvine Law Review

This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked …

A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres

Golden Gate University Law Review

The United States Immigration and Customs Enforcement agency (ICE) detained Jane Doe #15, an immigrant woman, at the Irwin County Detention Center (ICDC) in Georgia. During Jane’s time at ICDC, Doctor Mahendra Amin hastily examined her because she was experiencing severe pain in her pelvic area. Abandoning established professional and legal protocols for diagnosis and treatment, the medical staff scheduled Jane for surgery. Jane did not know what to expect from the surgery or what the medical personnel would do. After the surgery, the staff at ICDC neglected Jane’s care. She could not get out of bed on her own; …

Retaining A Constitutional Right To Terminate A Pregnancy By Reinterpreting Pregnancy As An Implied Contract, Esra Coskun-Crabtree

Golden Gate University Law Review

This Comment considers the question of abortion as a fundamental right by reframing pregnancy as a ground for implied contract. The recent decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) rejected the Fourteenth Amendment’s Due Process Clause as a basis for asserting a fundamental right to abortion. However, other constitutional limits on state power may provide different avenues to such an assertion. Specifically, the Contracts Clause of Article I, Section 10 of the U.S. Constitution prohibits the states from impairing the freedom to contract. This Comment argues that the key issue in the abortion …

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Taking The Long Road: The Excessive Fines Clause As A Tool For Protecting Washington's Unsheltered Population, Anna Ferron

Washington Law Review

Over the last decade, Washington State has seen a substantial increase in its unhoused population and an increase in laws that harm this group. Many of these laws subject unhoused and unsheltered people to fines, fees, and forfeitures that are exceedingly difficult for them to afford. The ExcessiveFinesClauses in the United States and Washington Constitutions protect citizens from fines deemed constitutionally excessive and could be used to shield unsheltered people from the burden of paying unjust fines they cannot afford. In City of Seattle v. Long, the Washington State Supreme Court analyzed the ability to pay of a person who …

Dobbs' Sex Equality Troubles, Marc Spindelman

William & Mary Bill of Rights Journal

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …

Reasonable In Time, Unreasonable In Scope: Maximizing Fourth Amendment Protections Under Rodriguez V. United States, Thomas Heiden

Washington Law Review

In Rodriguez v. United States, the Supreme Court held that a law enforcement officer may not conduct a drug dog sniff after the completion of a routine traffic stop because doing so extends the stop without reasonable suspicion in violation of the Fourth Amendment’s prohibition on unreasonable seizures. Tracing the background of Rodriguez from the Supreme Court’s landmark decision in Terry v. Ohio, this Comment argues that Rodriguez is best understood as a reaction to the continued erosion of Fourth Amendment protections in the investigative stop context. Based on that understanding, this Comment argues for a strict reading of Rodriguez, …

Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble

ConLawNOW

This essay reviews the book by Randy Barnett and Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021). Ask any constitutional law professor about how judges should or do interpret the Constitution, and you will likely hear an answer that ends in “ism.” In their latest book, Professors Randy Barnett and Evan Bernick discuss an “ism” that is found in our nation’s highest court, state courts, and academia: originalism. No matter which constitutional interpretation “ism” that one follows, this book provides an intimate and historical view of what two leading originalist scholars believe is the …

This Isn't A Reality Show: How Social Media Livestreams Of High-Profile Criminal Trials May Violate One's Right To A Fair Trial, Ryan Fenn

St. John's Law Review

(Excerpt)

Since the invention of television in 1927, the American legal system faced drastic changes. In 1935, the first trial was broadcast to the public in the case of Bruno Hauptmann. During the trial, “[e]laborate telegraph equipment” was installed in the courtroom, with “sound and motion picture equipment . . . plainly visible in the [courtroom] balcony.” From 1935 on, broadcasting technology has been utilized in the courtroom to convey the inner workings of certain courts to the public, which has stimulated debate over whether the use of this technology is conducive to a fair trial under the Sixth and …

Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic

Cleveland State Law Review

In 2019, Senate Bill 201, also known as the Reagan Tokes Act, reintroduced an indeterminate sentencing scheme in Ohio whereby sentences are assigned in the form of a range. Under this sentencing scheme, the Ohio Department of Rehabilitation and Correction, through the parole board, has discretion to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch, and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only …

In Pursuit Of A Modern Standard: The Constitutional Proportions Of Collateral Harm From Pursuits And Police High-Speed Driving, Julian Gilbert

Cleveland State Law Review

Police chases and high-speed driving are common practices that pose a substantial amount of harm and are often unjustified. The benefits of such chases are questionable, and rapid police action at all costs is often unnecessary. When bystanders are injured as a result of police high-speed driving, there are few avenues to have their rights vindicated, and federal court cases require plaintiffs to meet an almost impossible burden. However, under the United States Supreme Court case of County of Sacramento v. Lewis, a plaintiff can put forth evidence that their substantive due process right to life under the Fourteenth …

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal

No abstract provided.

The White Supremacist Structure Ofamerican Zoning Law, Sarah J. Adams-Schoen

Brooklyn Law Review

This article disrupts the false narrative of white supremacism that has, for more than a century, cast American land use law as race neutral. In doing so, this article builds on an important but underdeveloped body of legal scholarship elucidating zoning law’s role in creating and perpetuating a separate and unequal dual housing system. It provides primary historical evidence and a clear narrative demonstrating that the defining feature of American zoning law—a strict residential use taxonomy that privileges neighborhoods of restrictively regulated single-family homes and burdens less restrictively regulated residential areas—emerged directly from the facially race-based and facially neutral, but …

Keeping The Faith: How The Fourteenth Amendment Should Protect Against Faithless Electors, Jennifer A. Cranmer

Akron Law Review

Every four years, citizens across the United States vote for a presidential candidate. However, those citizens are actually voting for electors who then vote for the president in the Electoral College on the citizens’ behalf. Electors become faithless when they do not vote for the candidate that they were pledged to vote for. In Chiafalo v. Washington, the Supreme Court upheld the validity of states enacting strict faithless elector laws that require electors to vote for the candidates they were pledged to vote for and impose penalties on electors who fail to do so. Yet many states have failed …

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo

Emancipations: A Journal of Critical Social Analysis

Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.

Liberal feminists argued that in …

Blatant Discrimination Within Federal Law: A 14th Amendment Analysis Of Medicaid’S Imd Exclusion, J. Michael E. Gray, Madeline Easdale

University of Massachusetts Law Review

A discriminatory piece of Medicaid law, the institution for mental diseases (IMD) exclusion, is denying people with serious mental illness equal levels of treatment as those with only primary healthcare needs. The IMD exclusion denies the use of federal funding in psychiatric hospitals for inpatient care. This article discusses the history and collateral implications of the IMD exclusion, then examines it through the lens of the Equal Protection Clause of the Fourteenth Amendment, argues that people with severe mental illness constitute a quasi-suspect class, and that application of intermediate scrutiny would render the IMD exclusion unenforceable.

Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

A Tough Roe To Hoe: How The Reversal Of Roe V. Wade Threatens To Destabilize The Lgbtq+ Legal Landscape Today, Dane Brody Chanove

UC Irvine Law Review

For the first time in nearly thirty years, in the case of Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court was asked, again, to overturn its landmark ruling in Roe v. Wade finding a constitutional right to an abortion. And with three new Trump appointees and a 6-3 conservative majority, it was finally able to do just that. The Court’s decision in Dobbs has called into question not just the safety of abortion but of other constitutional rights grounded in similar tradition and legal doctrine. This Note considers the effects that the Dobbs decision could have …

Dignity And The Promise Of Conscience, Duane Rudolph

Cleveland State Law Review

This Article focuses on the relationship between three specific invocations of dignity in American law, whose emphases are different. The first appeared in the late eighteenth century and is concerned with the dignity of a state or sovereign. The second made its appearance at the beginning of the nineteenth century and is devoted to the dignity of the court. The third is concerned with the dignity of the human person. International instruments and foreign constitutions evoked dignity in this sense in the 1930s and 1940s. In the United States, the Restatement of Torts, First evoked this sense of the term …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

Freeing Females From Toplessness Bans: A Strict Scrutiny Analysis, Colleen Marron

Dickinson Law Review (2017-Present)

Males may exhibit their bare chests on outdoor public property their entire lives. In many locations, this fundamental right to bodily autonomy afforded to men is denied to women. This Comment examines the Equal Protection Clause of the Fourteenth Amendment in conjunction with the fundamental right to bodily autonomy and focuses on the regulations forbidding female breast exposure. The assumption that female breasts require coverage due to their provocative nature normalizes and entrenches problematic issues, particularly the objectification of women, into law. The fundamental right to bodily autonomy requires protection over arbitrary and capricious social norms. This Comment stresses courts …

Concepts Of Citizenship In The Controversy About Constitutional Citizenship For People Born In U.S. Territories, Janet M. Calvo

Fordham Law Review

In 2019, the District of Utah in Fitisemanu v. United States rejected the Insular Cases and held that persons born in American Samoa acquired Fourteenth Amendment constitutional citizenship at birth. The Tenth Circuit reversed through an analysis that attempted to “repurpose” the Insular Cases. This Essay discusses the differing concepts of citizenship presented in Fitisemanu, which raise significant questions about the nature and import of American constitutional citizenship. The Supreme Court’s recent denial of certiorari in Fitisemanu unfortunately leaves these questions unresolved, further continuing the second-class status of individuals born in the territories and underscores the uncertainty of …