Constitutional Law Commons^™

Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly

Akron Law Review

In evaluating patients’ potential legal remedies, this Comment explores 1) the emergence of managed care organizations in the United States; 2) the creation of the Employee Retirement Income Security Act of 1974 (“ERISA”) and how it impacts patients’ claims against their MCOs; 3) the question of “quantity” versus “quality” in evaluating whether ERISA preemption exists; 4) three theories (direct liability, breach of fiduciary duty, and vicarious liability) used to hold MCOs liable for injuries resulting from malpractice or the wrongful denial of benefits; 5) state legislative attempts to circumvent ERISA’s inequitable preemption of claims; and 6) why, given ERISA’s failure …

Coming Out Is A Free Pass Out: Boy Scouts Of America V. Dale, N. Nicole Endejann

Akron Law Review

This Note discusses the three Supreme Court cases that have delineated the battle between public accommodation laws and an organization’s freedom of expressive association: Roberts v. United States Jaycees, Board of Directors of Rotary International v. Rotary Club of Duarte, and New York State Club Association, Inc. v. City of New York. Specifically, this Note focuses on the development of the balancing test which courts use to protect these two constitutional freedoms. This Note then analyzes the Supreme Court’s decision in Boy Scouts of America v. Dale, pointing out its deviations from the Roberts Trilogy. Finally, this Note explains the …

How To Establish Flying The Confederate Flag With The State As Sponsor Violates The Equal Protection Clause, L. Darnell Weeden

Akron Law Review

The issue to be addressed is whether it is constitutionally permissible under the Equal Protection Clause for a state to fly a Confederate flag over its state capitol dome or other public property.

Like many of the South’s ghosts of the past slavery, racial discrimination, and race relations in general, the battle over the Confederate flag continues to impact national politics and rages on about the state of South Carolina. South Carolina is again the catalyst for a conflict about Southern Confederate values. South Carolina, the first state to secede from the Union and the only state where the Confederate …

Kirsch V. Wisconsin Department Of Corrections: Will The Supreme Court Say "Hands Off" Again?, Owen J. Rarric

Akron Law Review

This Note examines the struggle of prison inmates to gain access to religious materials; materials that have been forbidden by prison officials. Part II of the Note will examine the historical development of inmates’ constitutional rights. It will also analyze the Supreme Court’s standard for reviewing prison regulations involving inmates’ constitutional rights. Moreover, the Note discusses Congress’ attempt to set the standard of review. The Note then examines the significance of the Kirsch decision. Finally, the Note analyzes the fourth factor of the Turner Standard used in Kirsch and explores the possible effect of a new legislative act on prisoners’ …

False Light Invasion Of Privacy In Docudramas: The Oxymoron Which Must Be Solved, Matthew Stohl

Akron Law Review

According to Giardello, boxing historians, and even Rubin “Hurricane” Carter, himself, the opening sequence of The Hurricane — which purports to tell the “true story” of Carter’s unjust imprisonment — was not only far from being accurate, it was a complete falsity. In reality, the fight was a lopsided Giardello victory, to the delight of the 6,000 fans in attendance.

Joey Giardello, who knew nothing of the movie until the day he saw it in the theater, filed suit on February 16, 2000 against Universal Pictures claiming that the film inaccurately portrayed him as a weak fighter and the beneficiary …

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 …

Atwater V. City Of Largo Vista: Buckle-Up Or Get Locked-Up: Warrantless Arrests For Fine-Only Misdemeanors Under The Fourth Amendment, Jason M. Katz

Akron Law Review

The first part of this note presents a brief background of the constitutional jurisprudence regarding arrests. The note then recites the facts that led to this case and the legal proceedings that followed, including the Supreme Court’s decision. Next, the note analyzes the Court’s majority opinion, remarks on changes and deviations that were made in the law, and questions some areas of the Court’s analysis. The note concludes by addressing the significant consequences that the Atwater ruling may have on ordinary Americans.

The Fourteenth Amendment: The Great Equalizer Of The American People, Abel A. Bartley

Akron Law Review

The Fourteenth Amendment to the United States Constitution, which was ratified on July 28, 1868, demonstrated the change in attitude, which hit many Americans after the chaotic Civil War. It was America’s first attempt to legally challenge White supremacist ideas by creating a truly equal multiracial society. With its emphasis on equal protection and equal justice, the Fourteenth Amendment was intended to be the great equalizer of American people, legally changing African American men into White men so that they could enjoy all the rights, privileges, and immunities of United States citizenship. However, determining the meaning of equality uncovered the …

The Constitutional Politics Of Interpreting Section 5 Of The Fourteenth Amendment, Christopher P. Banks

Akron Law Review

This essay analyzes the Rehnquist Court’s Section 5 cases by first, in Section I, establishing how the Supreme Court has historically assumed the task of interpreting Congress’ power to act under the Fourteenth Amendment. Two periods, Reconstruction and then the mid- 1960s, are examined because they present contrasting views about the scope of what the Fourteenth Amendment and its enforcement section means. Section II then surveys Section 5 cases from the Rehnquist Court in order to illustrate how its jurisprudence mirrors the antifederalist rhetoric established in the post-reconstruction era while, not surprisingly, departing from the principles set forth in the …

Lorillard Tobacco Co. V. Reilly: The Supreme Court Sends First Amendment Guarantees Up In Smoke By Applying The Commercial Speech Doctrine To Content-Based Regulations, Kerri L. Keller

Akron Law Review

This note examines why the Supreme Court’s application of the commercial speech doctrine to purely “content-based” regulations erodes First Amendment guarantees. Section II provides a brief history of the First Amendment and discusses the different levels of judicial scrutiny applied in First Amendment cases. Section III provides the statement of facts, the procedural history, and the United States Supreme Court’s decision in Lorillard. Finally, Part IV examines the decision in Lorillard and discusses why the Court should have applied strict scrutiny to the regulations at issue. It further discusses how the Court’s refusal to apply strict scrutiny to content-based commercial …

Overgeneralization Of The Hot Pursuit Doctrine Provides Another Blow To The Fourth Amendment In Middletown V. Flinchum, Nathan Vaughn

Akron Law Review

Unreasonable searches of the home have often been regarded as a serious infringement upon one’s right to privacy. The right to privacy is currently recognized by a variety of governments and has existed for hundreds of years. Although the Constitution does not grant an express right to privacy, the Supreme Court has consistently acknowledged the rights of personal privacy and zones of privacy. Affording extra protection to the home seems to show that our right to privacy is at its peak behind closed doors.

Unfortunately, the list of exceptions to the warrant requirement is large and continuously growing. These exceptions …

Barefoot In Quicksand: The Future Of "Future Dangerousness" Predictions In Death Penalty Sentencing In The World Of Daubert And Kumho, Thomas Regnier

Akron Law Review

To understand the Barefoot decision, it is necessary to examine Jurek v. Texas, an earlier case in which the Supreme Court upheld the constitutionality of using predictions of future dangerousness as an element in capital sentencing. I will begin by analyzing the background to Barefoot, and then the Barefoot case itself. I will consider how admissibility of future dangerousness testimony in capital cases may or may not have changed after the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael. I will argue that future dangerousness predictions in capital cases are an unconstitutional due …

Ashcroft V. Free Speech Coalition: Can We Roast The Pig Without Burning Down The House In Regulating "Virtual" Child Pornography?, Ryan P. Kennedy

Akron Law Review

This Note will explore the struggle in the area of child pornography between the state’s legitimate interest in the protection of children and the First Amendment’s guarantee of free speech. Part II provides a brief history of the free speech doctrine as related to the area of child pornography prevention. Part III discusses the circuit split, as well as the facts, procedural history, and the holding of the Supreme Court. Finally, Part IV will examine the effect of the Court’s interpretation of the statute as unconstitutional, explain why the decision was correct, and look at Congress’ recent efforts at new …

Transformation: The Bright Line Between Commercial Publicity Rights And The First Amendment, W. Mack Webner, Leigh Ann Lindquist

Akron Law Review

The Right of Publicity provides to each and every person the right to use his or her persona for his or her benefit and provides a cause of action to stop the unauthorized use of that persona for commercial purposes.

This right is one of the many provided by the laws of unfair competition. Infringement of this right has become a frequently pleaded count made by attorneys who are trying to protect their clients from the unauthorized use of the client’s persona for commercial purposes. While the genesis of the right has been commonly thought to be a splintering from …

Direct Shipment Of Wine, The Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Akron Law Review

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

‘Twas not always so. …

Congressional Enforcement Of Civil Rights And John Bingham's Theory Of Citizenship, Rebecca E. Zietlow

Akron Law Review

In the Twentieth Century, Congress’ power to enact civil rights legislation, and make it privately enforceable against states and private parties, became widely recognized as one of the most important functions of the federal government. Yet in recent years, the Supreme Court has greatly restricted this function with its rulings restricting Congress’ commerce power and its power to enforce the Equal Protection Clause under Section five of the Fourteenth Amendment. Cases such as United States v. Morrison, Board of Trustees of the University of Alabama v. Garrett and Kimel v. Florida Board of Regents have left Congress in a vacuum, …

Ideology Vs. Reality: The Myth Of Equal Opportunity In A Color Blind Society, Jeffrey J. Wallace

Akron Law Review

The purpose of this discussion is to emphasize that the general assumptions of integration, equal opportunity, and racial neutrality in contemporary America are false and dichotomous assumptions, which prevent us from achieving the goal of true equality. While race is a difficult and painful subject to discuss in America, it is equally clear that without dialogue, we will not achieve the democratic values and principles we hold so dear and that drive our way of life.

The topic “What Every Teacher and Judge Should Know About Reconstruction,” provides an opportunity to open dialogue and to think critically about our values, …

John Bingham And The Background To The Fourteenth Amendment, Paul Finkelman

Akron Law Review

Legal scholars have long debated the “original intent” of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as “privileges or immunities of citizens of the United States,” “due process of law” or “equal protection of the laws.”

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin …

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Review

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The meaning of the Amendment was ultimately …

Dismantling The Private Enforcement Of The Privacy Act Of 1974: Doe V. Chao, Haeji Hong Esq.

Akron Law Review

A divided Supreme Court recently decided in Doe v. Chao that the federal government’s disclosure of the social security number, while constituting a violation of the Privacy Act of 1974 (the “Privacy Act”), was not enough to compensate the victim. After examining the civil remedy section of the Privacy Act, the Supreme Court ruled that the victim must also prove that he sustained actual damages before recovering the statutory minimum damage of $1,000. This latest decision will greatly affect the enforcement of the Privacy Act by private citizens and reduce the effectiveness of the already much criticized Privacy Act.

This …

The Little Word "Due", Andrew T. Hyman

Akron Law Review

The Fifth and Fourteenth Amendments bar the government from depriving anyone of “life, liberty, or property, without due process of law.” The ambiguity of that phrase has kept the judiciary busy for many generations, but that same ambiguity has become “completely eclipsed by the little word ‘due.’” The goal of the present article is to study this critical word, and in particular to examine whether a process is automatically “due” if it is owed according to positive law, or alternatively whether a process can only be “due” if it accords with judicially ascertained principles of liberty and justice. The present …

Professor Nimmer Meets Professor Schauer (And Others): An Analysis Of "Definitional Balancing" As A Methodology For Determining The "Visible Boundaries Of The First Amendment", Norman T. Deutsch

Akron Law Review

This article examines definitional balancing as a methodology for determining the “visible boundaries of the First Amendment.” More specifically, it focuses on the Court’s use of definitional balancing, as a technique for drawing definitional lines within categories of speech, to distinguish between speech that is included within the First Amendment, and speech that is excluded so that it may be proscribed based on its content. Part II describes definitional balancing in Professor Nimmer’s terms. Part III discusses the Court’s application of definitional balancing and the issues raised by commentators.

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Review

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.”...This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

Ratios, (Ir)Rationality & Civil Rights Punitive Awards, Caprice L. Roberts

Akron Law Review

This article will focus on the effect of the Court’s tightening of the ratio prong on federal civil rights cases. In particular, it addresses whether federal appellate courts feel constrained by State Farm’s stated preference for single-digit ratios, or instead, jettison the ratio strictures in favor of other prongs...The problems are two-fold in civil rights line of cases: (1) some federal circuit courts bar punitive damages if there are no compensatory damages; and (2) courts reviewing a punitive award where compensatory damages exist may feel compelled to apply rigidly a single-digit ratio to comport with State Farm. Barring or severely …

The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn

Akron Law Review

Part I of this essay covers an early period on the Court when Justice O’Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O’Connor’s attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O’Connor’s respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule Roe v. Wade. Part …

Obama, The Fourteenth Amendment, And The Drug War, Martin D. Carcieri

Akron Law Review

This article is written to help clarify the full range of understanding Obama would bring to a second term.

Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court …

Gonzales V. Raich: How To Fix A Mess Of "Economic" Proportions, Gregory W. Watts

Akron Law Review

The Note examines the history, evolution, elements, and application of the Commerce Clause doctrine. Part II, Sections A through C, concentrate on the history of the Supreme Court’s interpretation of the Commerce Clause, focusing extensively on Wickard v. Filburn, which the majority in Raich held controlling, and United States v. Lopez and United States v. Morrison, which the dissent would have held as controlling. Part II, Sections D and E, provide an overview of the Controlled Substances Act, whose constitutionality was challenged as applied in Gonzales v. Raich, and the Compassionate Use Act of California, which led to the conflict …

Off To Elba! The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

Akron Law Review

This article will look at why sex offenders are treated differently than other criminal offenders. Sex offenders are subject to sanctions and prohibitions above and beyond what other criminal offenders must face. Next, the article will look at some of the residence and employment restrictions placed on sex offenders to determine if they are rationally related to any legitimate government interest without overbearing the sex offender’s constitutional rights. Finally, the article will offer an alternate means of sex offense prevention that encourages sex offender assimilation back into society instead of further exclusion. This article will focus on those individuals who …

Creating The Public Forum, Samantha Barbas

Akron Law Review

This article describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication...The public forum is both a site for public debate and a means of communication for the less privileged. In the 1930s and 1940s, intellectuals and activists sought to enlist the state in the creation of “public forums” on the radio, in print journalism, and in public space. This article examines this public forum movement and its enduring impact on the free speech doctrine and social …