Law Commons^™

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Nancy L. Zisk

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone

Ann Schiavone

Unleashing The Fourteenth Amendment, Ann L. Schiavone

Ann Schiavone

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

Michael C. Dorf

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds. This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor …

Abortion Rights, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part Two, John H. Blume, Emily C. Paavola

John H. Blume

Part One of this article addressed the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

Tocqueville’S Slow And Steady Democratic Order In Light Of Us V. Windsor: Same Sex Marriage, And The Dilemma Of Majority Tyranny, Federalism, And Equality Of Conditions, Harry M. Hipler

Harry M Hipler

Tocqueville is a reliable interpreter of contemporary American life. His ideas written in the 1830s still resonate today. Tocqueville’s democratic order in Democracy in America (DA) is a dynamic process of socialization and democratization that balances liberty, authority, and equality of the individual in the community in order to obtain social and political justice. The USSC in US v. Windsor ruled that Section 3 of DOMA violated the doctrine of federalism and state sanctioned same-sex marriage. The decision followed Tocqueville’s gradual and progressive development of social and political justice that is crucial to a sustainable democratic order. In my research …

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts J.D., Ph.D.

Tina F Botts J.D., Ph.D.

Nancy Leong’s thesis, in “Judicial Erasure of Mixed-Race Discrimination,” is that antidiscrimination law should make a switch from defining race “categorically” to defining it in terms of the perception of the would-be discriminator so as to better accommodate claims of multiracial discrimination and so as to better achieve what Leong sees as the goals of antidiscrimination law, i.e., the promotion of racial understanding, and the elimination of racism and racial discrimination. But, while Leong’s goals are admirable, the method she proposes for achieving these goals will not succeed. Antidiscrimination law cannot operate to promote racial understanding, or to eliminate racism …

Where Is Equal Protection? Applying Strict Scrutiny To Use Of Race By Law Enforcement., Evan Gerstmann

Evan Gerstmann

This article seeks to move the debate over the use of race by law enforcement beyond the current focus on racial profiling, arguing that the courts must apply strict scrutiny to all use of race by law enforcement, including the stopping and questioning of persons based on suspect descriptions that include race. The current debate implicitly (and sometimes explicitly) assumes that law enforcement’s use of race can be divided into unconstitutional racial profiling and all other uses of races, which are presumptively legitimate. However, when other institutions rely upon race, such as public universities implementing affirmative action programs, courts automatically …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky

Peter Zablotsky

No abstract provided.

Strategies Of Containment: Status Regimes And The American Constitution, Bruce E. Boyden

Bruce E. Boyden

The American constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they travelled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Richard L. Aynes

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Born In The U.S.A.? Re-Assessing Birthright Citizenship In The Wake Of 9/11, John C. Eastman

John C. Eastman

Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, …

Re-Evaluating The Privileges Or Immunities Clause, John C. Eastman

John C. Eastman

In its 1999 case, Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment. Oddly, though, the opinion was written by Justice Stevens, one of the staunchest devotees of a living Constitution rather than originalism. As odd: Justice Thomas, the most consistent originalist on the Court, was in dissent. In his view, any reinvigoration of the Privileges or Immunities Clause should displace, rather than augment, the untethered jurisprudence that expansively interpreted other clauses of the 14th Amendment to cover the neutered Privileges or Immunities Clause, and it should …