Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 40

Full-Text Articles in Law

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee Jan 2020

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and ...


Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee Jan 2020

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Journal Articles

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps ...


The Constitutionalization Of Fatherhood, Dara Purvis Jan 2019

The Constitutionalization Of Fatherhood, Dara Purvis

Journal Articles

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law ...


The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports Jan 2019

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

Journal Articles

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law ...


State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews Jan 2017

State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews

Journal Articles

Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and "incoherent." On its face, the core concept seems straightforward enough constitutional rights are rights against the government. But what counts as the "state action" that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court's state action jurisprudence.

In this article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It ...


The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports Jan 2016

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Journal Articles

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question ...


Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle Jan 2016

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Journal Articles

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)(emphasis ...


Heien'S Mistake Of Law, Kit Kinports Jan 2016

Heien'S Mistake Of Law, Kit Kinports

Journal Articles

The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien ...


Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero Jan 2015

Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero

Journal Articles

For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v ...


Insights From Canada For American Constitutional Federalism, Stephen F. Ross Jan 2014

Insights From Canada For American Constitutional Federalism, Stephen F. Ross

Journal Articles

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable ...


Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero Jan 2013

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Journal Articles

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally ...


Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna Jan 2013

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Journal Articles

No abstract provided.


Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin Jan 2011

Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin

Journal Articles

The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory ...


All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet Jan 2011

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Journal Articles

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of ...


The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin Jan 2010

The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin

Journal Articles

In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be ...


Iqbal And Supervisory Immunity, Kit Kinports Jan 2010

Iqbal And Supervisory Immunity, Kit Kinports

Journal Articles

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that ...


Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet Jan 2009

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Journal Articles

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace ...


U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero Jan 2008

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Journal Articles

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.


Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero Jan 2007

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Journal Articles

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial couple would ...


Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis Jan 2007

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Journal Articles

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through ...


The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis Jan 2007

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Journal Articles

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause ...


An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero Jan 2006

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Journal Articles

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.


Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero Jan 2005

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Journal Articles

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all races equally ...


Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero Jan 2005

Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero

Journal Articles

Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America's commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the ...


Turning The Endangered Species Act Inside Out, Jud Mathews Jan 2004

Turning The Endangered Species Act Inside Out, Jud Mathews

Journal Articles

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA ...


Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero Jan 2003

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Journal Articles

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in ...


Charter Insights For American Equality Jurisprudence, Stephen F. Ross Jan 2002

Charter Insights For American Equality Jurisprudence, Stephen F. Ross

Journal Articles

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit ...


Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero Jan 2001

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Journal Articles

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role ...


Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero Jan 2001

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Journal Articles

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have seeped into the ...


Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports Jan 1999

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Journal Articles

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint ...