Constitutional Law Commons^™

In Search Of The Post-Positivist Jury, Mark Cammack

Indiana Law Journal

No abstract provided.

With Malice Toward Some: United States V. Kirby, Malicious Prosecution, And The Fourteenth Amendment, David J. Achtenberg

Faculty Works

In 1869, the Supreme Court treated United States v. Kirby as a simple case. In 1994, it treated Albright v. Oliver as a case divorced from history. Understanding the factual complexity of Kirby provides the historical framework missing from Albright and casts new light on the issue of whether the Fourteenth Amendment forbids malicious prosecution.

United States v. Kirby appeared straightforward. John W. Kirby was indicted for interferring with the United States mail by detaining a mail agent, Dr. Cyrus W. Farris, and a mail steamer. John Kirby's defense was simple. He was the sheriff of Gallatin County, Kentucky. The …

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

Physician Aid In Dying: A Humane Option, A Constitutionally Protected Choice, Kathryn L. Tucker, David J. Burman

Seattle University Law Review

This Article presents the argument that the Fourteenth Amendment protects the individual decision to hasten death with physician-prescribed medication and that statutes prohibiting physician-assisted suicide deny equal protection, guaranteed by the Fourteenth Amendment, to competent, terminally-ill adults who are not on life support.

The Religious Freedom Restoration Act: Letting The Fox Into The Henhouse Under Cover Of Section 5 Of The Fourteenth Amendment, Marci A. Hamilton

Cardozo Law Review

The Religious Freedom Restoration Act ("RFRA") has now been in effect for over a year. RFRA is an understandable, but unconstitutional, attempt to supplement the contemporary Supreme Court's crabbed reading of the Free Exercise Clause. In a nutshell, RFRA sets the standard of review-the "compelling interest" test-to be applied to federal and state law burdening the free exercise of religious conduct. RFRA has already been employed to decide a series of cases, most of which were brought by prison inmates. The time rapidly approaches when the courts of appeals, and even the Supreme Court, will be asked to pass on …

State Constitutional Protection Of Children With Aids And The Right To A Public Education, Jeffrey M. Croasdell

Cleveland State Law Review

The purpose of this article is to examine the problem that the American public school system is facing with respect to children with AIDS. In addition, this paper will examine how the courts are analyzing this issue and show why the current trend of analysis is weaker than it should be. Finally, this paper will look at how state constitutions are more frequently being used to protect individual rights and how the state constitutions could be used to protect the right of children with AIDS to free public education.

On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Faculty Publications

Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “ ‘implicit in the concept of …

The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman

Indiana Law Journal

No abstract provided.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

There Goes The Neighborhood: The Evolution Of "Family" In Local Zoning Ordinances, William Graham

Touro Law Review

No abstract provided.

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

The Bar Against Challenges To Employment Discrimination Consent Decrees: A Public Choice Perspective, John O. Mcginnis

Articles

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Of Heterosexism, National Security, And Federal Preemption: Addressing The Legal Obstacles To A Free Debate About Military Recruitment At Our Nation's Law Schools, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

It is possible that within the next few years at least one federal circuit court will find constitutional protection for sexual orientation under the equal protection clause of the Fourteenth Amendment. It is also now assured, due to the election of Bill Clinton to the position of U.S. President, that there will be a substantial governmental review of military policies concerning gays and lesbians, possibly resulting in a decision to modify or even rescind them. Until some definitive action is taken at the federal level, however, gays and lesbians will have to rely increasingly on sympathetic state and local policymakers …

Rights In The Modern Era: Applying The Bill Of Rights To The States, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Effects Of Intent: Do We Know How Legal Standards Work?, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

No one knows how the intent standard works in racial discrimination cases, though many have speculated. To test the speculation, this study examines how the intent standard actually operates. Its findings cast doubt on whether we really know how any legal standard functions.

My Pizza With Ninó, Alex Kozinski

Cardozo Law Review

No abstract provided.

Toward An Abolitionist Interpretation Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the "equal protection of the laws" guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be "rational" and will be rationally related to legitimate state ends. To …

Substantive Due Process Analysis And The Lockean Liberal Tradition: Rethinking The Modern Privacy Cases, Jeffrey S. Koehlinger

Indiana Law Journal

No abstract provided.

From Parratt To Zinermon: Authorization, Adequacy, And Immunity In A Systematic Analysis Of State Procedure, Daniel S. Feder

Cardozo Law Review

No abstract provided.

Victory For Billboard Control: The Fourth Circuit Vacates And Remands Waynesville, Thomas P. Cody

William & Mary Environmental Law and Policy Review

No abstract provided.

Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar S. Gray

Faculty Scholarship

No abstract provided.

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

Section 1983 And The Due Process Clause: Crossing The Constitutional Line, Linda G. Gay

Cardozo Law Review

No abstract provided.

Passion In Legal Argument And Judicial Decisionmaking: A Comment On Goldberg V. Kelly, Stephen Wizner

Cardozo Law Review

No abstract provided.

The New York Lien Law And The Garagemen’S Dilemma: Declining Metal Values Affect The Efficacy Of A Remedy, David A. Gross

Cardozo Law Review

No abstract provided.

A Radical Intent, Michael A. Simons

Faculty Publications

(Excerpt)

Much of the recent debate regarding constitutional interpretation has focused on the relevance of the Framers' intent. Attorney General Edwin Meese III has urged judges to "resurrect the original meaning of constitutional provisions." In contrast, Justice William Brennan has argued that courts should adapt the Constitution to "cope with current problems and current needs." A key disagreement involves whether the Bill of Rights protects citizens against state as well as federal government abuses. Some scholars have called for a rollback of Supreme Court decisions that incorporate provisions of the Bill of Rights in the fourteenth amendment, arguing that these …