Law Commons^™

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

NYLS 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 …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Adam M. Gershowitz

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay’s request for appointed counsel. Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer

James G. Dwyer

Family law scholars have devoted much attention to equality among groups of adults and some attention to equality between groups of children. There has been little exploration, however, of the notion of equality between adults and children. In this Article, I first explain what it means at a basic, theoretical level to speak of such equality. I then identify some practical implications. Finally, I consider why there is great resistance to many practical implications of children's equality, even among those who would consider themselves advocates for child welfare.

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

Neal E. Devins

No abstract provided.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Erwin Chemerinsky

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

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 …

States As Civil Rights Actors: Assessing Advocacy Mechanisms Within A State’S Legislative, Executive, And Judicial Branches, Jennifer Safstrom

Barry Law Review

No abstract provided.

Reframing The Affirmative Action Debate To Move Beyond Arguments For Diversity And Interest Convergence, Adrian Jamal Mclain, Steven L. Nelson

Barry Law Review

No abstract provided.

A Comprehensive Rethinking Of Equal Protection Post-Obergefelll: A Plea For Substantivity In Law, Shannon Gilreath

Barry Law Review

No abstract provided.

There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, Daniel J. Galvin Jr.

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

In this Article, I argue that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and, therefore, should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. After decades of using the fundamental rights analysis to aid lesbian, gay, and bisexual individuals in their pursuit of equality, addressing the fundamental right to marry and the fundamental right to privacy, the Supreme Court must address the elephant in the courtroom: that sexual orientation meets all of the factors set by the Court in equal protection cases for suspect classification.

Gays, lesbians, and bisexual individuals (LGBs) meet the …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

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

Faculty Publications

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 …

The Resistance & The Stubborn But Unsurprising Persistence Of Hate And Extremism In The United States, Jeannine Bell

Indiana Journal of Global Legal Studies

Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States-from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies …

Antidiscriminatory Algorithms, Stephanie Bornstein

UF Law Faculty Publications

Can algorithms be used to advance equality goals in the workplace? A handful of legal scholars have raised concerns that the use of big data at work may lead to protected class discrimination that could fall outside the reach of current antidiscrimination law. Existing scholarship suggests that, because algorithms are “facially neutral,” they pose no problem of unequal treatment. As a result, algorithmic discrimination cannot be challenged using a disparate treatment theory of liability under Title VII of the Civil Rights Act of 1964 (Title VII). Instead, it presents a problem of unequal outcomes, subject to challenge using Title VII’s …

Contraceptive Equity: Curing The Sex Discrimination In The Aca's Mandate, Greer Donley

Articles

Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s contraceptive mandate (Mandate), which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in four ways: it fails to financially support a quarter to a third of women that rely on male birth control to prevent pregnancy; it incentivizes women to endure the risks and side effects of birth control when safer options exist …

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless …

Equal Protection And Scrutinizing Scrutiny: The Supreme Court’S Decision In Sessions V. Morales-Santana, Jonathan Burt

Utah Law Review

This Note attempts to synthesize the cases on 8 U.S.C. § 1409(c) and provide a workable framework for intermediate scrutiny in the equal protection realm. Intermediate scrutiny, like all levels of scrutiny, is an ends-means balancing test. Under intermediate scrutiny, the ends must be “important.” The interest cannot be “hypothetical” or “invented post hoc in response to litigation.”234 Instead, it must be the actual reason behind the statutory classification and this must be clearly demonstrated by the government. On the other side, the means must “substantially relate” to the asserted interest. The means chosen cannot result from overbroad assumptions about …

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.

Economic Protectionism: Irrationally Constitutional, Joshua Park

Pepperdine Law Review

The Constitution is built on the principle that all citizens are created equal. Naturally, we believe that no law should be passed solely for the sake of benefiting one group over another. Yet, governments continue to pass economic regulations that have no purpose other than maintaining wealth within a specific group, and the judiciary continues to uphold such regulations. While the judiciary purports to uphold challenged legislation only if it passes “rational basis review,” the term “review” is a misnomer because the analysis has essentially become automatic deference. Under the judiciary’s modern treatment of the Equal Protection Clause, successfully challenging …

Judge Murphy's Indian Law Legacy, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Trouble Counting To Three: Circuit Splits And Confusion In Interpreting The Prison Litigation Reform Act's Three Strikes Rule, 28 U.S.C. Sec. 1915(G), Molly Guptill Manning

Articles & Chapters

No abstract provided.

Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli

Maine Law Review

Universities’ use of race as a factor in their admissions decisions has been a divisive issue both in the legal system and in political discourse. Opponents of affirmative action have challenged racial preferences in public university admissions under the Equal Protection Clause of the Fourteenth Amendment. Individuals who find themselves denied a coveted seat in a university class and suspect that racial preferences are to blame will often challenge their rejection as a denial of their state’s “equal protection of the laws.” The United States Court of Appeals for the Fifth Circuit recently considered whether the University of Texas at …