Fourteenth Amendment Commons^™

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Foreword, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

No abstract provided.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

From 1957 To 2023: How The Supreme Court Prevented Little Rock Schools From Achieving The Ideal Of Desegregation, Nyssa Kruse

Indiana Journal of Law and Social Equality

No abstract provided.

An Argument For A Right To Education For Undocumented Youth In Light Of Daca’S Uncertain Future, Minnie Blackman

Indiana Journal of Law and Social Equality

Undocumented youth are facing increasingly difficult circumstances in which to integrate into U.S. society both socially and economically. A primary reason for this phenomenon is the current antagonistic sentiments surrounding the Deferred Action for Childhood Arrivals (DACA) program. These sentiments have created a lack of trust in this program, with fewer undocumented youth applying for DACA status, which would allow many of them to apply to public colleges and universities at in-state tuition rates. Previous research has implied that state laws have the potential to create a property interest in education, and, as such, it must be protected from arbitrary …

Seeking Safety And Losing The Self: Affirmative Action Bans And The Whitening Of Mexican American Identity, Bella Bennett

Indiana Journal of Law and Social Equality

No abstract provided.

Protect Transgender Kids: What Is “Protection” In Light Of Bans On Gender-Affirming Care?, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

This Note examines the growing legal and constitutional conflict surrounding state laws that ban or restrict gender-affirming care for transgender minors. At the heart of the issue lies the clash between state authority and the constitutionally protected rights of parents under the Due Process Clause of the Fourteenth Amendment. Drawing on medical consensus that affirms the necessity and efficacy of gender-affirming care, the Note argues that these laws not only endanger the well-being of transgender youth but also infringe on parents' fundamental rights to direct their children’s medical treatment. The analysis highlights how some states mischaracterize gender-affirming care as a …

Book Banning: The Post-Pico Epidemic Upon Nationwide Academic Curricula, Brian Gomberg

Journal of Race, Gender, and Ethnicity

This Note explores the growing wave of book bans across the United States, highlighting the increasing role of state legislators in advancing policies that restrict access to literature in public schools. While historically driven by private individuals or local challenges, contemporary bans are now often state-sanctioned, with states like Texas, Florida, Missouri, Utah, and South Carolina leading the movement. These actions not only suppress specific titles but also target entire genres, disproportionately affecting books dealing with race, gender, and LGBTQ+ identities. Drawing on sources such as the PEN America Index of School Book Bans, the Note analyzes the historical context …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

Batson Challenges In Federal, Kansas, And Missouri Courts, Matt Champagne

Law Student Works

In Batson v. Kentucky, 474 U.S. 79 (1986), the Supreme Court of the United States (“SCOTUS”) ruled generally that the use of peremptory strikes to disqualify potential jurors based solely on their race violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the Court held that the use of peremptory strikes by the prosecution to exclude all four Black potential jurors from a jury pool, thus seating an all-white petit jury, on no other grounds besides the perspective jurors’ race violated a Black man’s right to equal protection under the Fourteenth Amendment. The Court reasoned that the exclusion of …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

Pathways To A Diverse Legal Academy: Pipeline Programs After Sffa, Steven W. Bender

Seattle University Law Review Online

Responding to the Supreme Court’s 2023 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) decision invalidating race-conscious admission policies in a public and private university, I urge an emphasis on pipeline programs to ensure law school admissions pools include racially diverse applicants. I detail my school’s pipeline programs for high school, college students, and recent college graduates—both as these programs were implemented before the Court’s decision and as they changed in its wake—as examples of what law schools generally, and collectively, should be doing. Most importantly, I focus on the lawful recruitment, design, and content …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.

Contempt: The Original Judicial Cheat Code, Ryan L. Scott

Dickinson Law Review (2017-Present)

The judicial contempt power challenges the fundamental rights enshrined in America’s Constitution. Imagine spending eight years in federal prison with no right to a jury trial or a court appointed attorney. Your only reprieve is the discretion of the judge who is imprisoning you. Meaningful appeals and even habeas corpus actions are generally not available remedies. Instead, what was originally justified as an inherent power of the court, necessary to maintain order and decorum, is increasingly used for trivial offenses or to incarcerate individuals for far longer than their possible crimes would otherwise warrant.

Despite widespread instances of abuse of …

Women On Death Row In The United States, Sandra Babcock, Nathalie Greenfield, Kathryn Adamson

Cardozo Law Review

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials. Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence (“GBV”), and prior involvement with the criminal legal system. We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the state’s use of aggravating factors. Finally, we reveal …

Brown V. Board Of Education: Enduring Caste And American Betrayal, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This article reflects on the role of residential caste in reproducing school segregation and how the Supreme Court betrays the equality principles of Brown by applying a colorblind constitutionalism that renders so-called de facto residential caste, and subsequent school segregation, acceptable.

During the seven-decade Great Migration of the 20^th century, northern cities deployed policies to create an architecture of inequality in which African Americans and white Americans did not live in the same neighborhoods. While the Fair Housing Act of 1968 rendered intentional discrimination in housing markets illegal, and the Court also ruled against forms of intentional housing discrimination, …

Interview Of Professor John Brittain, Donny R. Williams

University of the District of Columbia Law Review

No abstract provided.

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Black Lives Still Matter: The Unconstitutionality Of The Reasonableness Standard In The Doctrine Of Qualified Immunity, Angela D. Minor, Esq.

University of the District of Columbia Law Review

No abstract provided.

Mental Health Response To 911 Calls: Defunding The Police, Now With All Of The Danger And None Of The Protection, Marcia M. Ziegler

University of the District of Columbia Law Review

No abstract provided.

Jammed Locker: How The Eleventh Circuit's Decision In Adams V. School Board Of St. Johns County May Jam Up Transgender Students’ Rights, Erin Wilson

Villanova Law Review (1956 - )

No abstract provided.

Abortion Access: A Strain On The Most Vulnerable Women In Texas Post-Dobbs, Aleea Costilla

The Scholar: St. Mary's Law Review on Race and Social Justice

No abstract provided.

Law Office History And The Unrelenting Attack On Public Accommodations Law, James M. Oleske Jr.

William & Mary Bill of Rights Journal

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also …