Law Commons^™

Death By A Single Sentence, Danielle Dalporto

The Reporter: Social Justice Law Center Magazine

No abstract provided.

Truth And Reconciliation: The Ku Klux Klan Hearings Of 1871 And The Genesis Of Section 1983, Tiffany R. Wright, Ciarra N. Carr, Jade W.P. Gasek

Dickinson Law Review (2017-Present)

Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

You Can't Have Your Vote And Dilute It Too: Closing The Voting Rights Act Loophole In Gerrymandering Claims, Megan B. Kelly

William & Mary Law Review

The problem with creating and enforcing redistricting standards arises poignantly in racial gerrymandering cases that involve VRA section 2 compliance. In many ways, the rights that the Equal Protection Clause seeks to protect are at odds with the rights that section 2 seeks to protect. On the one hand, equal protection asserts a certain color-blindness, an interest in minimizing the focus on race and, in doing so, maximizing equality for all. On the other hand, the VRA suggests, and in fact requires, line-drawers keep at least one eye on race when drawing lines.

These opposing rights create a tension, which …

Criminal Justice Secrets, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation …

The Racist Roots Of The War On Drugs & The Myth Of Equal Protection For People Of Color, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. …

Race-Based Remedies In Criminal Law, Ion Meyn

William & Mary Law Review

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, …

The Thirteenth Amendment And Equal Protection: A Structural Interpretation To "Free" The Amendment, Larry J. Pittman

William & Mary Journal of Race, Gender, and Social Justice

The hope is that the Court will one day hold that the Thirteenth Amendment has its own equal protection clause or component and that strict scrutiny will not be used for benign racial classifications designed to eradicate current badges and incidents of slavery. This Article critiques the Court’s decision in the Civil Rights Cases regarding the scope of section 1 of the Amendment and it offers a holistic or structural interpretation of the Amendment to include an equal protection component and a lesser standard of review than strict scrutiny. Essentially, the Thirteenth Amendment, if properly used, could become a public …

Unequal Protection: Rethinking The Standards And Safeguards For Absentee Ballot Schemes, Kira M. Simon

William & Mary Bill of Rights Journal

No abstract provided.

Equity Over Equality: Equal Protection And The Indian Child Welfare Act, Lucy Dempsey

Washington and Lee Law Review Online

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But …

"De-Americanization" During The Trump Administration: Derivative Citizenship And Deceased Parents In The United States, Katheryn J. Maldonado

William & Mary Journal of Race, Gender, and Social Justice

The Trump Administration’s war on immigration will be marked in history as one replete with white supremacy and terror. Much attention has been focused in the realm of undocumented immigrants, detention centers, and family separations because of the pervasiveness of those issues and the gravity of the human rights violations occurring in the United States. However, little focus has been given to immigrants who are lawful permanent residents or naturalized citizens at risk of denaturalization and deprivation of their constitutional rights. This Note highlights the effects of the Trump Administration’s war on immigration on citizens and green card holders in …

Pandemic, Protest, And Agency: Jury Service And Equal Protection In A Future Defined By Covid-19, Patrick C. Brayer

Faculty Works

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals …

Inclusivity In Admissions And Retention Of Diverse Students: Leadership Determines Dei Success, Danielle M. Conway, Bekah Saidman-Krauss, Rebecca Schreiber

Faculty Scholarly Works

Penn State Dickinson Law has been leading with an Antiracist admissions philosophy and corresponding plans for implementation before the COVID-19 pandemic of 2020. Arguably, this approach to diversity, equity, and inclusion (DEI)was not identified explicitly as a vision priority for the law school until July 2019, when Dickinson Law welcomed Danielle M. Conway as the first Black Dean and first woman Dean in the law school’s 186-year history. Dean Conway outlined four vision priorities to accomplish within her first five years at Dickinson Law. Vision priority number two calls upon the law school’s administrators to move the needle substantially on …

Territorial Exceptionalism And The American Welfare State, Andrew Hammond

UF Law Faculty Publications

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

Abolishing Private Prisons: A Constitutional And Moral Imperative, André Douglas Pond Cummings, Robert Craig

Faculty Scholarship

No abstract provided.

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …

Stop Punishing Our Kids: How Title Vii Can Protect Children Of Color In Public School’S Discipline Practices, Lizette Rodriguez

Journal of the National Association of Administrative Law Judiciary

Section I of this comment considers the evolution of education in the United States and how American society dealt with racial discrimination in public schools in the past, and how those facts and decisions differ from the issues that students of color are facing today. Section II explains the Equal Protection Clause (EPC) and analyzes the seminal cases that demonstrate the power of the EPC and when it is appropriate to use it. Section III introduces Title VII and walks through violations of disparate impact discrimination and disparate treatment discrimination. Section IV explains what the Department of Education’s Civil Rights …

The Forgotten Relatives In The Fight Against Family Separation: A Constitutional Analysis Of The Statutory Definition Of Unaccompanied Minors In Immigration Detention, Alysa Williams

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

New York City Property Taxes And Appeals: A Systemic Subversion Of Constitutional Rights, Phoenix Marino

NYLS Law Review

No abstract provided.

Criminal Law: The Dangers Of Incomplete Statutory Interpretation And The Unfortunate Equal Protection Implications That Follow– Heilman V. Courtney, 926 N.W.2d 387 (Minn. 2019), Claire Gutknecht

Mitchell Hamline Law Review

No abstract provided.

The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn

Utah Law Review

Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.

However, as important as the concept of judicial impartiality may be, it is worth pausing to …

The Rhetoric Of Equality, Neal Devins

Neal E. Devins

No abstract provided.

Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Rights Dynamism, Timothy Zick

Timothy Zick

No abstract provided.

The Limits Of "Liberal Republicanism": Why Group-Based Remedies And Republican Citizenship Don't Mix, Cynthia V. Ward

Cynthia V. Ward

No abstract provided.

Q: Will The Supreme Court Intervention In Florida Fail The Test Of Time?, Ira Glasser, Alan J. Meese

Alan J. Meese

No abstract provided.

Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs

Nancy Combs

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with …