Constitutional Law Commons^™

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

Florida Law Review

The United States Supreme Court takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments. The Court has infused these interpretations with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other critical principles that inform the Court’s Article I, …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

Shikata Ga Nai: Statelessness And Sacrifice For Japanese-American Volunteers During The Second World War, Kenzo E. Okazaki

Swarthmore Undergraduate History Journal

Through a Philosophical analysis of the nature of Internment Camps as well as oral histories of veterans who volunteered to serve in the US military from the camps, this paper will argue that the internment of Japanese Americans during WWII was an event that the Supreme Court and surrounding legal discourse placed outside of legal jurisdiction. Those within the camps were thus condemned to a life lacking political qualification and juridical personhood. Faced with the dangers of this condition, interned Japanese Americans who served in the U.S. Army consciously laid claim to the American political community through the sacrifice of …

On American Demagoguery To National Security, Jennifer Brumfield

University of Cincinnati Law Review

No abstract provided.

The Scales Of Reproductive Justice: Casey’S Failure To Rebalance Liberty Interests In The Racially Disparate State Of Maternal Medicine, Mallori D. Thompson

Michigan Journal of Race and Law

Despite the maternal medicine crisis in the U.S., especially for Black women, legislatures are challenging constitutional abortion doctrine and forcing women to interact with a system that may cost them their lives. This Article proposes that because of abysmal maternal mortality rates and the arbitrary nature of most abortion restrictions, the right to choose an abortion is embedded in our Fourteenth Amendment right to not be arbitrarily deprived of life by the State. This Article is a call to abortion advocates to begin submitting state maternal mortality data when challenging abortion restrictions. The call for attention to life was central …

Are We Still Not Saved? Race, Democracy, And Educational Inequality, Lia Epperson

Scholarly Articles in Law Reviews & Journals

Thirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves …

Religious Exemptions As Rational Social Policy, Justin W. Aimonetti, M. Christian Talley

University of Richmond Law Review

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith …

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Strengthening Section 14141: Using Pattern Or Practice Investigations To End Violence Between Police And Communities, Sigourney Norman

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are on your way home from work and driving your usual route. You hear police sirens getting louder and louder. You realize you are the subject of their chase, but you cannot imagine why. You slow down and pull over, not wanting to cause confrontation. The officer beats on your car door. You roll down your window and ask why you have been pulled over. The officer informs you that your tail light is broken. Next, the officer orders you out of the car. Your heart races as the officer pats you down. You wonder if the …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Little Sisters Of The Poor V. Pennsylvania: The Not So Little Effect Of Interfering With The Aca's Contraceptive Mandate, Sabrina Rubis

Women, Leadership & Equality

No abstract provided.

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

The Perfect Match: Solving The Due Process Problem Of Signature Matching With Federal Agency Regulation, Rachel Blumenstein

Vanderbilt Journal of Entertainment & Technology Law

Local election commissions in the United States disenfranchise Americans when they erroneously reject voters’ mail-in ballots for failed signature matches. Disenfranchisement is not only problematic because it is dangerous to the health of American democracy, but also because signature matching violates the procedural due process protections voters are entitled to when they exercise their right to vote. Furthermore, the practice of signature matching is one of many ballot access restrictions that disproportionately impact minority voters under the guise of voter fraud prevention. Expanding the Election Assistance Commission’s mandate to allow it to develop more accurate methods of ballot verification can …

The Elephant In The Room And Straw Men On Fire, Fay Faraday

Articles & Book Chapters

A great unacknowledged challenge in litigating systemic discrimination claims under the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms1 is that claimants bear a double burden. Like all litigants, they must meet the burden of proving the elements of their legal claim. But, before they can do that, equality claimants must often first meet the extraordinary burden of dislodging judges’ phenomenological anchoring in worldviews shaped by privilege. Where judges lack lived experience of systemic oppression, claimants must convince them that oppression exists. This gulf between lived experiences — what I call the reality gap — is …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Introductory Remarks, Michael Rogers, Hannah Hamley, Rayshaun D. Williams

Seattle University Law Review

Introductory Remarks.

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Corporate Entanglement With Religion And The Suppression Of Expression, Ronald J. Colombo

Seattle University Law Review

The power and ability of corporations to assert their First Amendment rights to the detriment of others remains both a controversial and unresolved issue. Adverting to relevant strands of existing jurisprudence and certain constitutionally relevant factors, this Article suggests a solution. The path turns upon the recognition that whereas some corporations are appropriately categorized as rights-bearing entities (akin to associations), others are more appropriately categorized as “entities against which the rights of individuals can be asserted.” Legislation, in the form of the draft “CENSOR” Act, is provided as a means by which to implement this categorization. What hopefully emerges is …

The Road To Bostock, John Towers Rice

FIU Law Review

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Some Objections To Strict Liability For Constitutional Torts, Michael L. Wells

Georgia Law Review

Qualified immunity protects officials from damages for
constitutional violations unless they have violated “clearly
established” rights. Local governments enjoy no immunity, but
they may not be sued on a vicarious liability theory for
constitutional violations committed by their employees. Critics
of the current regime would overturn these rules in order to
vindicate constitutional rights and deter violations. This
Article argues that across-the-board abolition of these limits on
liability would be unwise as the costs would outweigh the
benefits. In some contexts, however, exceptions may be justified.
Much of the recent controversy surrounding qualified
immunity involves suits in which police officers …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

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

Scholarly Works

No abstract provided.

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Amicus Curiae Brief: Private For Profit Incarceration Violates The 13th Amendment Of The United States Constitution, André Douglas Pond Cummings, Zoë Harris, Casey Bates, Natasha Cornell

Law Faculty Scholarship

The Thirteenth Amendment to the United States Constitution outlawed chattel slavery in the United States following a violent Civil War and a chilling era of slavery conducted primarily in the nation’s southern states. In passing this Amendment, Congress included a clause that excepted a certain population from this general prohibition, namely, prisoners. In what has become known as the “punishment clause,” Section I of the Thirteenth Amendment states explicitly “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their …

Covid-19, Courts, And The 'Realities Of Prison Administration.' Part Ii: The Realities Of Litigation, Chad Flanders

All Faculty Scholarship

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.