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Articles 1 - 15 of 15
Full-Text Articles in Law
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.
Solving Batson, Tania Tetlow
Solving Batson, Tania Tetlow
Tania Tetlow
The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule, a …
E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler
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
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
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
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 …
In Search Of Federal Remedies For Lgbtq Students Who Are Victims Of Assault And Harassment In School., Jerry R. Foxhoven Mr.
In Search Of Federal Remedies For Lgbtq Students Who Are Victims Of Assault And Harassment In School., Jerry R. Foxhoven Mr.
Jerry R. Foxhoven Mr.
This article describes details of the harassment that was inflicted upon the individual LGBTQ students involved in many of the federal reported cases, as well as the lack of response by, and sometimes even the participation of, school personnel in the harassment. The article then goes on to examine the various legal theories that were employed by the victim-students, including constitutional theories (Due Process, Equal Protection, and First Amendment claims) as well as statutory remedies (Title IX and the Equal Access Act).
This article is written in a format that is not only interesting (by providing the details of the …
Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio
Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio
Lorenzo Di Silvio
On February 23, 2011, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. Of great significance in this announcement was the Administration’s position that classifications on the basis of sexual orientation warrant heightened judicial scrutiny. Notwithstanding this announcement, the level of review applied to sexual-orientation classifications—and the manner in which a court determines whether a particular type of classification deserves more searching review—is an open question, the answer to which typically dictates the outcome of challenges to government classifications. Apart from this outcome determinativeness, affording heightened scrutiny to some classifications but …
Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler
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
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
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
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
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
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 …