Constitutional Law Commons^™

The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson

University of Miami Law Review

As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States—the Eleventh Circuit reviews several claims each year related to capital punishment. Florida is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.

This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the …

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.

The Thirteenth Amendment And Human Trafficking: Lessons & Limitations, Kathleen Kim

Georgia State University Law Review

Part I of this Article contextualizes human trafficking within the doctrinal development of the Thirteenth Amendment and Section Two legislation enacted to address subsequent forms of unfree labor. This part describes the origins of a race-conscious Thirteenth Amendment framework and explains its relevance in guiding antitrafficking policy. The overwhelming focus of antitrafficking efforts on sexual exploitation strains the normative foundation of the Thirteenth Amendment. Part II examines the TVPA and the California Trafficking Victims Protection Act and identifies their most significant contributions to Thirteenth Amendment doctrine. Yet, this part finds that the absence of a Thirteenth Amendment framework to guide …

Shedding Tiers: A New Framework For Equal Protection Jurisprudence, Danielle Stefanucci

St. John's Law Review

(Excerpt)

This Note argues that the Supreme Court of the United States should reconsider the tiers of scrutiny framework that courts use to evaluate equal protection claims. The Supreme Court has recognized government classifications on the bases of race and gender to be suspect and to merit heightened judicial scrutiny. However, any governmental classification among people is subject to review under the Equal Protection Clause. The class itself is not suspect; the basis for the classification, like race or gender, is treated by courts as more or less suspect.

However, employing the tiers of scrutiny no longer makes sense in …

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Racialized Tax Inequity: Wealth, Racism, And The U.S. System Of Taxation, Palma Joy Strand, Nicholas A. Mirkay

Northwestern Journal of Law & Social Policy

This Article describes the connection between wealth inequality and the increasing structural racism in the U.S. tax system since the 1980s. A long-term sociological view (the why) reveals the historical racialization of wealth and a shift in the tax system overall beginning around 1980 to protect and exacerbate wealth inequality, which has been fueled by racial animus and anxiety. A critical tax view (the how) highlights a shift over the same time period at both federal and state levels from taxes on wealth, to taxes on income, and then to taxes on consumption—from greater to less progressivity. Both of these …

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Gerrymandering Justiciability, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the …

State Intent Under International Law, Stephen Townley

Cardozo International & Comparative Law Review

The question of legislative intent has long been a topic of intense scholarly focus in the United States. There has also been a recent uptick in discussion of executive branch intent with the filing of highprofile lawsuits predicated upon allegations of improper motives. However, there has been no corollary effort to unpack the concept of state intent at the international level, where it arises with respect to such varied questions as how to understand the scope of a state's consent, whether a state should be deemed to be negotiating in good faith, and whether a state has engaged in genocide. …

Addressing The Supreme Court’S ‘Constitutional Orphan’: Determining The Scope Of The Second Amendment In Public, Along With Its Need To Be Regulated, Eli Zlotowitz

Cardozo International & Comparative Law Review

No abstract provided.

Children's Equality Rights: Every Child's Right To Develop To Their Full Capacity, Nancy E. Dowd

Cardozo Law Review

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random butfall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children's equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support …

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries …

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus

St. Thomas Law Review

My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

Foreword, Syndie G. E. Molina

Journal of Race, Gender, and Ethnicity

No abstract provided.

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.