Constitutional Law Commons^™

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Akron Law Review

The purpose of this Article is to expand the scope of the discussion from one of morality to include a sociological approach, called Diffusion Theory...Section II of this Article explains Diffusion Theory. Section III explores the background of DOMA and the factual background in which DOMA is being challenged by the states and private citizens. Section IV discusses the fundamentals behind the Florida adoption ban and how the change in the message by the challengers has proven effective. The final part, Section V, analyzes whether the approach should center on the inevitability of the change, as reflected in the Justice …

Interstate Agreement For Electoral Reform, Adam Schleifer

Akron Law Review

This Article will consider how an interstate agreement pursuant to Article I, Section 10 of the U.S. Constitution could provide a subconstitutional legal alternative to the much-debated and oft-maligned political mechanics of the Electoral College system. The current gloss on the Compacts Clause and the Supreme Court jurisprudence relating to interstate agreements may make it possible for a number of states to come together to obviate the Electoral College without resort to constitutional amendment. More modestly, investigating how this might be so provides an opportunity for applied analysis of the underscrutinized field of interstate agreements, which may prove useful as …

Thomas Jefferson And The Establishment Clause, Mark J. Chadsey

Akron Law Review

The purpose of this paper is to ask whether the historical record actually supports either of these assumptions. A note about my mode of analysis is necessary at this juncture. When inquiring about Jefferson’s influence on the Establishment Clause, it is important to focus on the entire process by which it was adopted rather than its mere introduction by Madison in the House of Representatives. Its adoption, after all, required the assent of two-thirds of both chambers of Congress, three-fourths of the state legislatures, and the support of a majority of the American public. Without the requisite support of all …

Reversing Time's Arrow: Law's Reordering Of Chronology, Causality, And History, Bruce G. Peabody

Akron Law Review

But this Article urges us to use the President’s unintended comments as a prompt for reconsidering how we ordinarily talk about and conceive time and causality ―especially in thinking about law. Through a series of brief case studies culled from politics, culture, and law, this piece begins mapping the frequency, range, and significance of circumstances in which we can claim that the hands of the present grasp and transform the past...Among other benefits, greater awareness of this underappreciated aspect of American legalism can assist scholars and citizens in shedding new light on enduring and important debates involving such areas as …

Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Akron Law Review

Sections two and three of the Fourteenth Amendment, being more political than legal enactments, have had essentially no judicial or legal development. Yet even the first sentence of section one and the ensuing Privileges or Immunities Clause have had relatively little play in the courts. With the single exception of the 1999 case of Saenz v. Roe, 6 the citizenship language of the Fourteenth Amendment has practically no legal significance.

Still, these approaches to equal or constitutional citizenship represent a starting point, not a conclusion. Taking up the invitations of these scholars, my project is to delve more deeply into …

Standing In The Mud: Hein V.Freedom From Religion Foundation, Inc.

Akron Law Review

In 1968, in Flast v. Cohen, the Supreme Court first set forth the requirements that a plaintiff must satisfy to have standing to challenge a government action in federal court solely based on his or her status as a taxpayer. The subsequent history of taxpayer standing is littered with precedents supported by unclear reasoning. Hein v. Freedom from Religion Foundation, Inc. represents the Supreme Court’s latest effort to address the limits of taxpayer standing in an Establishment Clause challenge. Unfortunately, the Court in Hein maintained its tradition of providing perplexing decisions in taxpayer standing cases. In Hein, a plurality of …

"Horror Of A Woman": Myra Bradwell, The 14th Amendment, And The Gendered Origins Of Sociological Jurisprudence, Gwen Hoerr Jordan

Akron Law Review

On June 14, 1873, Myra Bradwell reprinted a short article from the St. Louis Republican in the Chicago Legal News announcing the U.S. Supreme Court’s decision in her case.

This short article reveals an important insight that challenges some contemporary interpretations of Bradwell v. Illinois. First, it points out what we know, but sometimes overlook, that the Supreme Court holding in Bradwell did not prevent women from becoming lawyers or practicing law.6 More importantly, however, it suggests that Justice Bradley’s oftcited concurrence – where he reveals his horror of a woman, writing that “[t]he harmony, not to say identity, of …

The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial Of Jefferson Davis, C. Ellen Connally

Akron Law Review

The resulting decision in The Slaughterhouse Cases is one that is still debated and stands as a primary example of an unintended consequence of a constitutional amendment. Although historians and legal scholars have considered a number of the unintended consequences of the Fourteenth Amendment, one result, unforeseen by its proponents, has been totally overlooked... In the legal proceedings that came to be known as United States v. Jefferson Davis, a legal determination was required to determine whether or not Section 3 imposed a simple disqualification or an actual punishment...Could those who pushed for the adoption of the Fourteenth Amendment, those …

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Akron Law Review

This Article sets forth the Slaughter-House Cases’ support for civil rights. Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court. The Slaughter-House Court’s structural analysis and its view of federal protective …

Foolish Consistencies And The Appellate Review Of Courts-Martial, John F. O'Connor

Akron Law Review

The thesis of this Article is that most of the vices infesting the military appellate system could be corrected, or at least moderated, by reforming the rules governing when, and how, a servicemember can waive his right to appellate review...Part II of this Article examines the “costs” associated with the appeal of a court-martial conviction, that is, the resources that are required to bring a case through its appellate review. When a courtmartial appeal presents colorable issues that the accused has a moral right to raise (not having waived them at trial), these are “costs” that are well worth expending. …

The New Face Of Women's Legal History: Introduction To The Symposium, Tracy A. Thomas

Akron Law Review

The University of Akron School of Law organized a conference in October 2007 entitled “The New Face of Women’s Legal History” to showcase many of the seasoned and emerging scholars in the field. The joining together of law and history scholars including eleven presenters, four moderators, one keynote, and one-hundred participants, provided a welcomed opportunity to trigger new scholarly and professional synergies...The articles included in this symposium edition of the Akron Law Review provide an excellent sampling of the promising work underway in this nascent field. They each explore women’s historical use of the law to advance feminist discourse. True …

Rationalizing The Constitution: The Military Commissions Act And The Duboius Legacy Of Ex Parte Quirin, Chad Deveaux

Akron Law Review

Alexander Hamilton famously characterized the Judiciary as the “least dangerous” branch. It “has no influence over either the sword or the purse” and thus “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But this perceived safeguard has sometimes proven to be the institution’s undoing. Faced with the prospect of appearing impotent, the Supreme Court has, on occasion, played the role of doctrinal apologist. The Court has bent seemingly immutable constitutional prerogatives to sanction Executive action when a contrary ruling would likely go unheeded.

Wilson V. Wilson: The Effect Of Qdros On Appealing Divorce Decrees, Joshua A. Dean

Akron Law Review

In most divorces today, the largest asset held by the divorcing couple is a retirement fund belonging to one of the spouses. Courts invery state must decide how to divide a married couple’s property in order to provide each spouse his or her proper share. But when there are no assets large enough to offset the value of the retirement pension, divorce courts must find a way to “equitably distribute” the proceeds of the plan. Dealing with this large asset presented problems in the past as Congress sought to limit the ability to assign proceeds of retirement plans to anyone …

A Comparison Of Laws In The Phillipines, The U.S.A., Taiwan, And Belarus To Regulate The Mail-Order Bride Industry, Roxanne Sims

Akron Law Review

The mail-order bride industry has existed since the early twentieth century, although the idea of women advertising themselves for marriage may seem unusual and extraordinary to some people. Mail-order brides became increasingly popular as male immigrant workers who settled in the United States sought wives from their home countries. People referred to these women as “picture brides,” and relatives frequently participated in arranging the marriages. However, the mail-order bride industry has changed significantly over the past century, with international marriage brokers (IMBs) currently operating all over the world. IMBs recruit prospective mail-order brides from their home countries via advertisements in …

The American Suppression Of The African Slave Trade: Lessons On Legal Change, Social Policy, And Legislation, Paul Finkelman

Akron Law Review

In 1807 the United States Congress passed legislation, which became effective on January 1, 1808, to end all importations of slaves into the United States. Even before that date, Congress had passed a series of laws that prevented Americans from participating in the trade as sailors, ship captains, ship owners, ship builders, or investors in slave trading ventures. The bicentennial of the closing of the trade to the United States provides an appropriate moment to examine how the United States withdrew from this form of commerce. At one level the tale is inspiring. This was the first time in history …

The Right To Silence As Protecting Mental Control, Dov Fox

Akron Law Review

This Article examines the idea that individuals have a moral and constitutional right of control over the use of their thoughts vis-à-vis the state. As a point of departure, I consider the prospect of a forensic neuroimaging device that was capable of eliciting recall and recognition from a criminal suspect without the suspect’s having even to answer an interrogator’s question. Reflection on government access to this sort of interrogation technique suggests that the state should be prohibited from either extracting a person’s thoughts without her consent or making use of her compelled thoughts to lay criminal blame upon her. Though …

Law And The Revolution In Neuroscience: An Early Look At The Field, Henry T. Greely

Akron Law Review

Several of the articles in this symposium consider different aspects of the intersection of neuroscience and testing for deception. Professor Joelle Moreno’s article provides an important philosophic link for those thinking about the role of the academy in evaluating novel scientific evidence such as neuroscience. Noting that “profound validity questions divide cognitive neuroscientists,” Professor Moreno cautions against ready admission of cognitive neuroscience evidence, recognizing that the images presented may be far more persuasive to judges and juries than they legitimately should be. Quoting studies on the effect of neuroscience evidence in forming opinions, she reminds readers that cognitive neuroscience evidence …

Foreword To The Neuroscience, Law & Government Symposium, Jane Campbell Moriarty

Akron Law Review

It is with much pleasure that I write the foreword for this Symposium in the Akron Law Review. The authors were each presenters at the Neuroscience, Law & Government Conference, held at The University of Akron School of Law in September, 2008. The articles in this edition of Akron Law Review are as diverse as the presentations themselves, and provide a fascinating glimpse into various ways in which neuroscience is making inroads in both law and government. The explosion of neuroscience and neuroimaging discoveries this decade is nothing short of remarkable, leading one prominent scientist to term the last several …

Why "Privileges Or Immunities"? An Explanation Of The Framers' Intent, William J. Rich

Akron Law Review

In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a …

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Powers, Elizabeth Reilly

Akron Law Review

This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment not only altered the fundamental structural principles of the relationship between the states and the national government and the responsibility of government to protect individual liberties. It argues that the original structural alignment of national powers and the boundaries of their respective spheres were also, of necessity and by understanding, recast as well.

The Legacy Of Slaughterhouse, Bradwell, And Cruikshank In Constitutional Interpretation, Wilson R. Huhn

Akron Law Review

The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In each case, the Court perverted the meaning of the Constitution in ways that reverberate down to the present day...In these cases the Court ruled upon several critical aspects of 14th Amendment jurisprudence, including (1) Whether the 14th Amendment prohibits the States from interfering with our fundamental rights; (2) How the equality of different groups should …

The 39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard L. Aynes

Akron Law Review

This article is a preliminary effort to tell the story of the people who brought the nation the 14th Amendment, the 39th Congress...I want to suggest that when someone creates the Hall of Fame of the Congresses we need to include the 39th Congress.

Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Review

This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …

Exxon Shipping Co. V. Baker: Why The Supreme Court Missed The Boat On Punitive Damages, Maria C. Klutinoty

Akron Law Review

This Note will touch upon the numerous constitutional challenges the doctrine of punitive damages has faced, and will discuss noteworthy Supreme Court cases preceding Exxon Shipping Co. v. Baker at length, including BMW of North America, Inc. v. Gore, 5 as well as State Farm Mutual Automobile Insurance Co. v. Campbell. 6 This Note argues against the imposition of a strict one-to-one maximum ratio of punitiveto-compensatory damages. In light of the varying application of Exxon outside of the maritime context, such an imposition defeats the purpose of punitive damages by diluting their potential for deterrence, and it needlessly complicates the …

The Timing Of Facial Challenges, Timothy Sandefur

Akron Law Review

My purpose here is to separate out the different conceptual categories whose overlap has led to these mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or ripeness of a cause of action challenging the constitutionality of a law. The accrual date of facial and as-applied challenges is identical (with some exceptions, as we shall see), and mere enactment is rarely, if ever, the ripening event or the moment of accrual for a case in which a party mounts a facial challenge to a law. The distinction between facial and as-applied challenges is, so to speak, …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Akron Law Review

One is forced to wonder whether any laws exist to protect minors whose personal lives are laid bare as their own parents thrust them into the paparazzi’s spotlight. This article addresses this question, considering the best legal regime for regulating employment of children in reality programming, and suggesting an alternative to the status quo. To that end, Part II begins by identifying the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children who participate and to society in general. Part III surveys the current legal landscape, addressing first the federal law …

The Challenge And Dilemma Of Charting A Course To Constitutionally Protect The Severely Mentally Ill Capital Defendant From The Death Penalty, Lyn Entzeroth

Akron Law Review

This article examines these issues in the context of an important and emerging constitutional challenge to the death penalty: whether the death penalty can be imposed on capital defendants who suffer from severe mental illness at the time of the commission of their crimes. The American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance for the Mentally Ill all endorse a death penalty exemption for the severely mentally ill. Recent law review articles suggest that such an exemption may even be compelled by the Supreme Court’s decisions in Roper v. Simmons and Atkins v. …

Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo

Akron Law Review

Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Akron Law Review

James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …