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Articles 1 - 17 of 17
Full-Text Articles in Law
The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick
The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick
Faculty Publications
This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …
Constitutional Borrowing, Robert L. Tsai
Constitutional Borrowing, Robert L. Tsai
Robert L Tsai
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
William & Mary Bill of Rights Journal
No abstract provided.
2017: Evaluating The Force Of Equal Protection Along The South-Texas Border In A Post Trump Elect United States, Ezekiel Perez
2017: Evaluating The Force Of Equal Protection Along The South-Texas Border In A Post Trump Elect United States, Ezekiel Perez
Ezekiel Perez
Aliessa V. Novello, Diane M. Somberg
Districtly Speaking: Evenwel V. Abbott And The Apportionment Population Debate, Joey Herman
Districtly Speaking: Evenwel V. Abbott And The Apportionment Population Debate, Joey Herman
Duke Journal of Constitutional Law & Public Policy Sidebar
The Equal Protection Clause of the Fourteenth Amendment, as interpreted by the Supreme Court, promises substantial equality of population within state legislative districts under the “one-person, one-vote” rule. Most frequently, total population is the basis for state reapportionament, but state citizenship and voter registration populations have also been acceptable bases in certain situations. The case of Evenwel v. Abbott, provides the Court with the opportunity to resolve the permissible population basis for reapportionment of state legislative districts. This Commentary argues that a state may rely upon total population as the basis for apportionment because such an approach is consistent …
Affronti V. Crosson, Jonathan Janofsky
Of All The Gin Joints: Harris And The Supreme Court’S Reluctant Jurisprudence On Partisanship In Redistricting, Andrew Bellis
Of All The Gin Joints: Harris And The Supreme Court’S Reluctant Jurisprudence On Partisanship In Redistricting, Andrew Bellis
Duke Journal of Constitutional Law & Public Policy Sidebar
As interpreted by the Supreme Court, the Fourteenth Amendment’s Equal Protection Clause protects the voting power of citizens. Thus, drawing state legislative districts resulting in dilution of citizens’ voting power may violate the Constitution. However, the question of what factors a state may take into account when redistricting has not been settled. In the upcoming Supreme Court case of Harris v. Arizona Independent Redistricting Commission, the Court faces the question of whether partisan makeup of the population and whether an attempt by a state to obtain federal preclearance for redistricting are valid factors a state can take into account …
Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith Johnson Harbach
Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith Johnson Harbach
University of Richmond Law Review
This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.
Foster V. Chatman: Clarifying The Batson Test For Discriminatory Peremptory Strikes, Meghan Daly
Foster V. Chatman: Clarifying The Batson Test For Discriminatory Peremptory Strikes, Meghan Daly
Duke Journal of Constitutional Law & Public Policy Sidebar
Historically, peremptory challenges were thought necessary to ensure fair and impartial juries, but the tactic has also been widely used by prosecutors for racially discriminatory purposes. This Commentary previews an upcoming Supreme Court case, Foster v. Chatman, that deals with alleged discriminatory peremptory challenges which led to striking all black jurors from a jury trial. Even though the prosecution had offered race-neutral reasons for those strikes, this Commentary argues that the evidence shows that the underlying rational was, in reality, racial discrimination. For that reason, this Commentary argues that the Court should find this case to fall under the …
The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman
The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman
Howard M Wasserman
No abstract provided.
A Postal Code Lottery: Unequal Access To Abortion Services In The United States And Northern Ireland, Hailey K. Flynn
A Postal Code Lottery: Unequal Access To Abortion Services In The United States And Northern Ireland, Hailey K. Flynn
Fordham International Law Journal
This Note argues that one’s postal code, or where one lives within the United States or in Northern Ireland, should not negatively impact a woman’s access to safe abortion services. This Note will examine abortion-related jurisprudence in the United States and Northern Ireland and will make recommendations for the ways in which access to abortion services can be legally improved. Part I will explain current jurisprudence on abortion in the United States within the Due Process Clause and Equal Protection Clause contexts. Part II will analyze the current legal framework that governs access to abortion in Northern Ireland and will …
Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler
Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler
Scholarly Publications
In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.
A line of Supreme Court decisions completely rejected this understanding …
"State Inaction," Equal Protection, And Religious Resistance To Lgbt Rights, James M. Oleske, Jr.
"State Inaction," Equal Protection, And Religious Resistance To Lgbt Rights, James M. Oleske, Jr.
University of Colorado Law Review
Now that the Supreme Court has held that states must recognize same-sex marriages, a new issue looms on the horizon: Must states also protect against sexual-orientation discrimination in the private marketplace? This Article contends that the answer under the Equal Protection Clause is "yes" for the forty-five-plus states that protect against marketplace discrimination on the basis of race, religion, national origin, and sex.
In the course of reaching that conclusion, this Article offers much-needed clarification of the Court's unsettled "state inaction" doctrine. Under that doctrine, a state's failure to act may be immunized from challenge on the ground that the …
One Person, One Weighted Vote, Ashira Pelman Ostrow
One Person, One Weighted Vote, Ashira Pelman Ostrow
Hofstra Law Faculty Scholarship
This Article argues that weighted voting should be used to comply with the constitutional one-person, one-vote requirement while preserving representation for political units on the legislative body. First, this Article demonstrates that weighted voting satisfies the quantitative one-person, one-vote requirement by equalizing the mathematic weight of each vote. Second, this Article demonstrates that weighted voting has the potential to remedy several negative consequences of equal-population districts. Specifically, this Article argues that by preserving local political boundaries, weighted voting eliminates the decennial redistricting process that gives rise to claims of partisan gerrymandering, enables local governments to function both as administrative arms …
Opinion Of Justice Katherine Franke In Obergefell V. Hodges, Katherine M. Franke
Opinion Of Justice Katherine Franke In Obergefell V. Hodges, Katherine M. Franke
Faculty Scholarship
Professor Jack Balkin has assembled a group of 9 scholars and advocates to write opinions in the Obergefell v. Hodges case for a forthcoming volume, What Obergefell Should Have Said (Yale University Press 2017). Balkin writes for the majority of the Court and I provide a concurrence along with a short commentary explaining my approach and reasoning. In summary, I conclude that: Laws barring same-sex couples from eligibility for licensure as civil marriages violate the Equal Protection Clause of the Fourteenth Amendment because they find their origin in and perpetuate notions of heterosexual supremacy, and have the aim and effect …
Measuring Political Power: Suspect Class Determinations And The Poor, Bertrall L. Ross, Su Li
Measuring Political Power: Suspect Class Determinations And The Poor, Bertrall L. Ross, Su Li
Bertrall L Ross
Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens, or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible—and under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power.
But how do courts know when a class lacks political power? A liberal plurality of the Supreme Court initially suggested that political power should be measured according to a group’s …