Law Commons^™

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

Mental Hygiene Law Article 81 Proceedings In New York State And The Associated Deprivation Of One’S Civil Rights And Autonomy: Are We Really Helping?, Giulia R. Marino

Touro Law Review

New York State Mental Hygiene Law Article 81 affords a population that is vulnerable to abuse and exploitation an opportunity to have their personal and/or property management needs met by the least restrictive means available, often entailing a severe deprivation of their rights.1 But what is meant by the term “least restrictive means available,” how is this determined, and how are these “means” implemented and monitored? Is this deprivation of an individual’s rights the only way they can be helped, or is this unnecessarily harmful? Are there other ways to protect the vulnerable in our society without taking away these …

Reversing Incorporation, Ilan Wurman

Notre Dame Law Review

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …

Keeping The Faith: How The Fourteenth Amendment Should Protect Against Faithless Electors, Jennifer A. Cranmer

Akron Law Review

Every four years, citizens across the United States vote for a presidential candidate. However, those citizens are actually voting for electors who then vote for the president in the Electoral College on the citizens’ behalf. Electors become faithless when they do not vote for the candidate that they were pledged to vote for. In Chiafalo v. Washington, the Supreme Court upheld the validity of states enacting strict faithless elector laws that require electors to vote for the candidates they were pledged to vote for and impose penalties on electors who fail to do so. Yet many states have failed …

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

The Eleventh Amendment And Nondiverse Suits Against States, Collin Hong

University of Cincinnati Law Review

Since Hans v. Louisiana (1890), the Supreme Court has maintained that the Eleventh Amendment protects states from suits by plaintiffs who are citizens of other states and by citizens of that state, despite the text of the Eleventh Amendment specifying that only suits from citizens of other states are barred. Scholars have noted that what therefore protects the states from suits against their own citizens is not the Eleventh Amendment, but rather a common-law immunity that existed between nations at the founding. That immunity applied both to states and to foreign nations. This article argues that just as Congress has …

The Apparition Amendment: The Potential Effects Of The Addition Of A Federal Equal Rights Amendment To The United States Constitution In A Post-Dobbs United States, Alexa Liverano

Journal of Race, Gender, and Ethnicity

This Note will explore the feasibility of amending the federal Constitution to add an Equal Rights Amendment, and will outline previous attempts to pass such an amendment. It will also explore the potential ramifications of the additions of such an amendment. This Note will also inspect the language of Equal Rights Amendments within State constitutions and discuss what language ought to be included should a federal amendment be published in light of the United States Supreme Court’s decision in Dobbs. Part one will consider the legal viability of the Equal Rights Amendment of 1972 today. Part two will explore the …

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Fordham Law Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

ConLawNOW

Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Michigan Law Review

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Freedom, Democracy, And The Right To Education, Derek W. Black

Faculty Publications

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made …

To Live More And Die Less: Challenging Tennessee's Anti-Trans Birth Certificate Policy, Guy E. Tustin Iii

Lincoln Memorial University Law Review Archive

This note analyzes Gore, et al., v. Lee, et al., a case challenging Tennessee's birth control policy which explicitly prohibits trans people born in Tennessee from correcting their gender marker to accurately reflect their gender identity. The note begins with a description of the issues the lawsuit hopes to address and continues with a description of the parties, history of anti-trans birth certificate jurisprudence, an analysis of lawyering strategies, and concludes with First Amendment strategies which may be used to fight state laws requiring trans citizens to complete gender confirming procedures in order to correct their birth certificate gender markers.

One Vote, Two Votes, Three Votes, Four: How Ranked Choice Voting Burdens Voting Rights And More, Brandon Bryer

University of Cincinnati Law Review

No abstract provided.

Aals Constitutional Law Panel On Brown, Another Council Of Nicaea?, Kelly A. Macgrady, John W. Van Doren

Akron Law Review

When considering the product of the AALS Constitutional Law Panel, entitled "What Brown Should Have Said," held in January 2000, in Washington, D.C., we have experienced considerable disorientation. We therefore ask the question asked by Lucretia in Machievelli's play, The Mandragola, "Do you mean it or are you laughing at me?" We fear that the Panelists may be laughing at us. Because, in short, their writings criticize the formalism that they use in the panel court opinions. In this article, we pick four of the Panelists, more or less at random, and confront the question of whether their writings before …

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh

ConLawNOW

The fight for full Black citizenship has been in large measure a fight against the systematic dehumanization of African Americans. Dehumanization is the process of treating people as less than human, as subhuman. Denying Blacks full and equal citizenship has gone hand in hand with denying their full humanity. To effectively promote equal citizenship for African Americans, therefore, requires an explicit commitment to ending their dehumanization. This essay examines the concept of dehumanization and its connection to formal, political, civil, and social citizenship. It elaborates on the less familiar idea of social citizenship, entailing the right to have personal relationships …

Redefining Sex Offenders: The Fight To Break The Bias Of Female Sex Offenders, Norma Hamilton

Journal of Race, Gender, and Ethnicity

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Disposition Of Frozen Preembryos In The Case Of Divorce: New York Should Implement A Modified Mutual Contemporaneous Consent Approach, Kasey Bray

Touro Law Review

No abstract provided.

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.

Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher

Touro Law Review

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Humanity For Asylum Seekers: How Migrant Protection Protocols And The March 20th Cdc Order Violate The Constitutional Rights Of Asylum Seekers During The Covid-19 Pandemic, Madison Beck

Center for Health Law Policy and Bioethics

In late 2018, the Trump Administration introduced Migrant Protection Protocols (MPP), also known as the Remain in Mexico Policy, to curb illegal immigration. The protocols allow the U.S. to remove immigrants, including asylum seekers, to Mexico while their claims are processed. This is problematic on its own, but even more so during the COVID-19 pandemic; makeshift asylum tent-camps are home to thousands of vulnerable individuals where viral spread would be devastating. Additionally, in March 2020, the Centers for Disease Control and Prevention (CDC) issued an “order suspending introduction of certain persons from countries where a communicable disease exists” further worsening …

Ethical Considerations For Attorneys Researching Jurors On The Internet, Anthony M. Lapinta

Journal of Race, Gender, and Ethnicity

No abstract provided.

Three Keys To The Original Meaning Of The Privileges Or Immunities Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

The Death Of Fairness: Texas's Future Dangerousness Revisited, Ana M. Otero

University of Denver Criminal Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.