Law Commons^™

The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman

ConLawNOW

This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

ConLawNOW

In May 2021, the Supreme Court granted certiorari in a case designed to overrule Roe v. Wade. The assumption is that six justices are inclined to repudiate Roe, and that some of those six would like to go further, declaring a constitutional right to life that would prevent the abortion issue from going “back to the states” at all. The question for the next year is not whether Roe will be overruled—it already was, in Planned Parenthood v. Casey—but how far the Court will go. This essay describes the arc of the Supreme Court’s abortion jurisprudence in …

Surprising Originalism: The Regula Lecture, Lawrence B. Solum

ConLawNOW

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

The Icing On The Cake: How Background Factors Affect Law Faculty Predictions In Masterpiece Cakeshop, Michael Conklin

ConLawNOW

In this research, I explore law school faculty perceptions and predictions of the highly publicized Masterpiece Cakeshop case. I created a survey to assess how law faculty members’ prediction of the case may be affected by their area of instruction, background in business, religious involvement, political affiliation, same-sex union celebration participation, exposure to the case, and personal desired outcome for the case. I contacted over 800 law school faculty members, inviting them to participate in the research. The ninety-three completed responses provide insight into how law school faculty demographics may be indicators of their Supreme Court case predictions. Furthermore, different …

Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence, Mirko Bagaric, Sandeep Gopalan

Akron Law Review

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights. Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and …

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …

The Death Penalty And Justice Scalia's Lines, J. Richard Broughton

Akron Law Review

In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

The Impact Of Justice Scalia's Replacement On Gender Equality Issues, Wilson R. Huhn

ConLawNOW

The last forty-six years may be accurately described as the era of the modern Republican Supreme Court. As a result of presidential elections, Republican presidents have nominated all ten of the Justices appointed to the United States Supreme Court between 1969 and 1991. Republicans have thus controlled the Court since 1970. During this period the right to gender equality was recognized and the right to marriage equality was realized. However, also during this period many Republican Justices staunchly opposed gender equality, and far more remains to be accomplished.

Since Justice Scalia’s death, the Supreme Court has been deadlocked on a …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

The Roberts' Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commisson, Allen Shoenberger

ConLawNOW

In this January’s decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hilary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

Chief Justice Roberts And The "Forty Thieves", Keith R. Fisher, Konstantina Vagenas

ConLawNOW

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.

The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Akron Law Review

During a five day period in June, 1992, every Justice on the United States Supreme Court joined one or the other of two opinions that denied the objectivity of values—either Justice Kennedy’s majority opinion in Lee v. Weisman or Justice Scalia’s dissent in Planned Parenthood v. Casey. Both of these opinions expressed the view that normative judgments are merely human constructions. This moment represents symbolically the death of values in American law. The arrival of nihilism at the heart of American law is a world-changing event for law that must be acknowledged.

The death of values was announced by …

Obergefell V. Hodges: How The Supreme Court Should Have Decided The Case, Adam Lamparello

ConLawNOW

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Three Variations Of The Supreme Court's Legal Mind, Albert Lebowitz

Akron Law Review

With their independence, the Justices emerged, not, as Madison imagined them, a unified definition of reason but with diverging strains of legal mindedness that, as they almost inevitably clashed with each other, developed that added strength which emerges from dialectic. Madison's vision may have been too simple.

Constitutional theory is heavily concentrated in the area of judicial review, and the three issues raised in Marbury v. Madison are still subjects of heated debate and controversy. It is remarkable how topical this opinion remains.

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Akron Law Review

The legal proceedings following the 2000 election had their moments of humor. The oral argument in Bush v. Gore may have produced the most guffaws, as Joseph Klock struggled to name the Justices of the Supreme Court, or even to limit himself to those currently living. But if one finds humor in the absurd, the comic highpoint came 34 hours later (34 hours!) when the Court released its decision. Network “runners”―presumably the employees who had distinguished themselves at company picnics, the network softball league, or summer corporate challenge races―grabbed copies, dashed outside, and handed them to on-air reporters who were …

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Con Law Center Articles and Publications

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control.

This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and …

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Infinite Hope And Finite Disappointment: The Story Of The First Interpreters Of The Fourteenth Amendment, Elizabeth Reilly

University of Akron Press Publications

Infinite Hope and Finite Disappointment details the aspirations and promises of the 14th Amendment in the historical, legal, and sociological context within which it was framed. Part of the Reconstruction Amendments collectively known as "The Second Founding," the 14th Amendment fundamentally altered the 1787 Constitution to protect individual rights and altered the balance of power between the national government and the states. The book also shows how initial Supreme Court interpretations of the Amendment's reach hindered its applicability. Finally, the contributors investigate the current impact of the 14th Amendment.

Contents Infinite Hope: The Framers as First Interpreters The Antebellum Political …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Akron Law Faculty Publications

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Martin H. Belsky

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Richard L. Aynes

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …