Law Commons^™

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Bray V. Russell: The Constitutionality Of The "Bad Time" Statute, Erin Kae Cardinal

Akron Law Review

This Note analyzes the Court’s decision in Bray. Part II presents an overview of sentencing systems in the United States, the bad time penalty, and a brief background of the doctrine of separation of powers. Part III presents the facts, procedural history, and holding of Bray. Part IV analyzes the Court’s holding pursuant to the Due Process Clause rather than the doctrine of separation of powers. This Note concludes that although the bad time statute is unconstitutional as a violation of the doctrine of separation of powers, the court could have alternatively decided that the bad time statute also violates …

The Constitutional Politics Of Interpreting Section 5 Of The Fourteenth Amendment, Christopher P. Banks

Akron Law Review

This essay analyzes the Rehnquist Court’s Section 5 cases by first, in Section I, establishing how the Supreme Court has historically assumed the task of interpreting Congress’ power to act under the Fourteenth Amendment. Two periods, Reconstruction and then the mid- 1960s, are examined because they present contrasting views about the scope of what the Fourteenth Amendment and its enforcement section means. Section II then surveys Section 5 cases from the Rehnquist Court in order to illustrate how its jurisprudence mirrors the antifederalist rhetoric established in the post-reconstruction era while, not surprisingly, departing from the principles set forth in the …

Barefoot In Quicksand: The Future Of "Future Dangerousness" Predictions In Death Penalty Sentencing In The World Of Daubert And Kumho, Thomas Regnier

Akron Law Review

To understand the Barefoot decision, it is necessary to examine Jurek v. Texas, an earlier case in which the Supreme Court upheld the constitutionality of using predictions of future dangerousness as an element in capital sentencing. I will begin by analyzing the background to Barefoot, and then the Barefoot case itself. I will consider how admissibility of future dangerousness testimony in capital cases may or may not have changed after the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael. I will argue that future dangerousness predictions in capital cases are an unconstitutional due …

John Bingham And The Background To The Fourteenth Amendment, Paul Finkelman

Akron Law Review

Legal scholars have long debated the “original intent” of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as “privileges or immunities of citizens of the United States,” “due process of law” or “equal protection of the laws.”

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin …

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Review

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The meaning of the Amendment was ultimately …

Due Process Limitations On Punitive Damages: Why State Farm Won't Be The Last Word, Laura J. Hines

Akron Law Review

Part I of this article will trace the development of the evolving principles and requirements the Court is imposing on state awards of punitive damages, identifying notable undercurrents within the Court regarding this new and expanding application of the Due Process Clause. Part II will present a detailed analysis of State Farm Mutual Automobile Insurance Co. v. Campbell, which represents the Court’s most ambitious attempt yet to provide guidance to states on how to approach the imposition of punitive damages and how to assess the appropriate size thereof. Finally, Part III of this article will examine recent lower court cases …

Charles Demore V. Hyung Joon Kim: Antoher Step Away From Full Due Process Protections, Brian Smith

Akron Law Review

Part II of this note traces the development of substantive due process protections for aliens, including general due process jurisprudence, the statutory authority for detaining criminal aliens, significant Supreme Court decisions, and approaches taken by the circuit courts. Part III examines the Supreme Court’s decision in Hyung Joon Kim. Part IV evaluates the due process analysis used by the Court and addresses the implications of this decision. Part V of this note concludes that the Court’s strained departure from strict scrutiny and its failure to provide an adequate explanation of the departure will have implications for aliens, citizens, and future …

The Little Word "Due", Andrew T. Hyman

Akron Law Review

The Fifth and Fourteenth Amendments bar the government from depriving anyone of “life, liberty, or property, without due process of law.” The ambiguity of that phrase has kept the judiciary busy for many generations, but that same ambiguity has become “completely eclipsed by the little word ‘due.’” The goal of the present article is to study this critical word, and in particular to examine whether a process is automatically “due” if it is owed according to positive law, or alternatively whether a process can only be “due” if it accords with judicially ascertained principles of liberty and justice. The present …

The Soldier And The Imbecile: How Holmes's Manliness Fated Carrie Buck, John Kang

Akron Law Review

The Supreme Court case of Buck v. Bell, while never overturned, endures in infamy among those who know it. For in that case the Court had tacitly sanctioned what Adolph Hitler made unequivocally evil a few years after the Court’s adjudication: eugenics. However, the case was only partly about that. Indeed, I will argue in this essay that the Court’s opinion, written by Justice Oliver Wendell Holmes, turned perhaps more significantly on the trope of manliness as an organizing theme. In a sense Holmes was filtering the facts of Buck through his own ordeals and triumphs with manliness, particularly as …

Ratios, (Ir)Rationality & Civil Rights Punitive Awards, Caprice L. Roberts

Akron Law Review

This article will focus on the effect of the Court’s tightening of the ratio prong on federal civil rights cases. In particular, it addresses whether federal appellate courts feel constrained by State Farm’s stated preference for single-digit ratios, or instead, jettison the ratio strictures in favor of other prongs...The problems are two-fold in civil rights line of cases: (1) some federal circuit courts bar punitive damages if there are no compensatory damages; and (2) courts reviewing a punitive award where compensatory damages exist may feel compelled to apply rigidly a single-digit ratio to comport with State Farm. Barring or severely …

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Akron Law Review

This Article sets forth the Slaughter-House Cases’ support for civil rights. Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court. The Slaughter-House Court’s structural analysis and its view of federal protective …

Foolish Consistencies And The Appellate Review Of Courts-Martial, John F. O'Connor

Akron Law Review

The thesis of this Article is that most of the vices infesting the military appellate system could be corrected, or at least moderated, by reforming the rules governing when, and how, a servicemember can waive his right to appellate review...Part II of this Article examines the “costs” associated with the appeal of a court-martial conviction, that is, the resources that are required to bring a case through its appellate review. When a courtmartial appeal presents colorable issues that the accused has a moral right to raise (not having waived them at trial), these are “costs” that are well worth expending. …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Akron Law Review

One is forced to wonder whether any laws exist to protect minors whose personal lives are laid bare as their own parents thrust them into the paparazzi’s spotlight. This article addresses this question, considering the best legal regime for regulating employment of children in reality programming, and suggesting an alternative to the status quo. To that end, Part II begins by identifying the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children who participate and to society in general. Part III surveys the current legal landscape, addressing first the federal law …

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …

Personal Jurisdiction: A Doctrinal Labyrinth With No Exit, Simona Grossi

Akron Law Review

My goal is not to categorize, critique, or refine existing doctrine, but to challenge the idea that the Supreme Court’s case-by-case approach to personal jurisdiction represents an arc of progress. In my view, all too often the Court’s apparent refinements operate as detours from the fundamental principles at stake. The result is a clutter of doctrinal tests that is inconsistent with principle and confuses more than it informs. In Part II, I briefly explore the traditional bases of jurisdiction and the Court’s elaboration of the minimum contacts test in International Shoe Co. v. State of Washington. 9 Here, I show …