Law Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Toward A New Separation Of Church And State: Implications For Analogies To Last Year's Supreme Court Decision In Hobby Lobby By This Year's Decision In Obergefell V. Hodges, Vincent Samar

Vincent J. Samar

No abstract provided.

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Animus And Marriage Equality, Susannah W. Pollvogt

Susannah W Pollvogt

Many scholars have speculated about the approach the United States Supreme Court might take in the marriage equality cases currently on its docket. One option that is underexplored is that the Court may revive and rationalize the doctrine of unconstitutional animus. Dormant since the 1996 decision in Romer v. Evans, the doctrine of unconstitutional animus has made only fleeting appearances in the Court’s equal protection jurisprudence, and when it has appeared, it has taken on a distinct incarnation in every instance. For this reason, both scholars and practitioners consider the doctrine to be ill-defined and unreliable. Nonetheless, the doctrine of …

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as …

Execution By Accident: Evidentiary And Constitutional Problems With The "Childhood Onset" Requirement In Atkins Claims, Steven Mulroy

Steven Mulroy

The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the …

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Ian C Bartrum

This Colloquy piece explores the constitutional relationship between religious exercise and racial discrimination in the context of the "ministerial exception" and the Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

ABSTRACT

Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law, in a way that may utterly defeat that cause.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII, “anti-subordination” and “anti-classification.” The …

All Who Live In Love: The Law & Theology Behind Same-Sex Marriage, Frank R. Flaspohler

Frank R Flaspohler

The issue of same-sex unions in the United States intertwines two fields of study that do not often intersect: constitutional law and religious theology. This essay seeks to present a summary of the constitutional law issues considered by several states courts and multiple legal scholars in presenting a modern approach to legal same-sex marriage. Additionally, this essay includes an overview of several Catholic Christian theologians who have presented grounds for a sexual theology that is more responsive to our modern understanding of sexual orientation. Together, these viewpoints show that same-sex unions can grow from our constitutional understanding of the rights …

Preventing And Responding To Workplace Sexual Harassment, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

A review of Title VII and state-based claims alleging workplace sexual harassment circa 1996-99.

The Constitutional Ghetto, Robert L. Hayman, Nancy Levit

Nancy Levit

The goal of this Article is to assess two Supreme Court desegregation decisions. It is our view that Board of Education v. Dowell and Freeman v. Pitts are, by almost every measure, seriously flawed decisions. The opinions of the Court rest on epistemic premises - reductionist views of race and racism, and an absurdly formalistic conception of equality - that are by turns either anachronistic, cramped and inauthentic, or demonstrably wrong. Worse, they promote a vision of American society - fragmented, hierarchical, and shamelessly individualistic - that is fundamentally inconsistent both with the egalitarian norms embodied in the Fourteenth Amendment …