Fourteenth Amendment Commons^™

Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an “impartial decision maker is essential” to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that “due process requires a neutral and a detached judge in the first instance.” Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings …

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

"That's The Guy!": Federal Rule Of Evidence 801(D)(1)(C) And Out-Of-Court Statements Of Identification, Gilbert M. Rein

Cardozo Law Review

No abstract provided.

Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Roe v. Wade grounds constitutional protections for women’s decision wheth­er to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equal­ity arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …

Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn

William & Mary Law Review

No abstract provided.

Sex Segregation In Public Schools: Separate But Equal?, Lily A. Saffer

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Harris V. Mcrae: Whatever Happened To The Roe V. Wade Abortion Right?, Laura Crocker

Pepperdine Law Review

The controversial Roe v. Wade decision purportedly removed the abortion controversy from the political arena and set constitutional standards by which questions on the issue could be resolved. The enactment of the Hyde Amendment, a bill which generally forbids the use of Medicaid funds for abortions, was a recent political response to the abortion controversy. However, in the recent case of Harris v. McRae, the Supreme Court upheld the constitutionality of the Hyde Amendment and thus injected the abortion controversy back into the political arena. The author exhaustively examines the abortion controversy from the time of the Roe decision up …

Wengler V. Druggists' Mutual Insurance Company: No More Skirting The Issue Of Sex Discrimination In Workers' Compensation Dependency Statutes, Teresa A. Saggese, Lawson A. Cox Ii

Pepperdine Law Review

No abstract provided.

Rostker V. Goldberg: A Step Backward In Equal Protection, Or A Justifiable Affirmation Of Congressional Power?, Gilbert L. Purcell, Janet Rappaport

Pepperdine Law Review

The Supreme Court in Rostker v. Goldberg upheld a Congressional decision which excluded women from registration for service in the Armed Forces of the United States. Although the case was brought based upon equal protection grounds, the majority took a separation of powers stance and based its decision upon the fact that the Court has traditionally granted deference to the decisions of Congress in the area of military affairs. The minority opinions disagreed with the majority's analysis and claimed that the central issue in Rostker was not military in nature, but was that Congress' plan to register males only, promoted …

Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner

Pepperdine Law Review

No abstract provided.

The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer

Pepperdine Law Review

After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …

Constitutional Considerations: Government Responsibility And The Right Not To Be A Victim , Richard L. Aynes

Pepperdine Law Review

Within a democratic society, citizens are provided with certain rights and liberties. Among those rights and liberties is the right not to be a victim. In this article, the author examines and analyzes the growing concern for the protection of victims of crimes. Recent legislative enactments have been designed to alter the role of the victim in the civil and criminal justice systems by defining and implementing a series of "victims' rights." The author concludes by recognizing that one of the most important duties of government is to provide for the physical safety of those within its jurisdiction. To implement …

A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg

William & Mary Law Review

This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the …

Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii

William & Mary Law Review

No abstract provided.

Reinforcement Of Middle Level Review Regarding Gender Classifications: Mississippi University For Women V. Hogan , Mary Ellen Shull

Pepperdine Law Review

In Mississippi University for Women v. Hogan, the United States Supreme Court was presented with an equal protection challenge initiated by a male who was denied admission to a state-supported all-female school of nursing. After a review of relevant decisions in this area, the author examines the Supreme Court's intermediate level of scrutiny analysis and argues that application of a higher level of scrutiny to gender-based classifications is a prerequisite to true equality between the sexes.

An Analysis Of Selective Service System V. Minnesota Public Interest Research Group, Teresa L. Howell

Pepperdine Law Review

Section 1113 of the Department of Defense Authorization Act passed in 1982 prohibits the receipt of Title IV educational funds by students who do not comply with draft registration requirements. In Selective Service System v. Minnesota Public Interest Research Group, the United States Supreme Court upheld section 1113 in the face of a multi-tiered constitutional challenge. After exploring the history of section 1113, the author examines the Supreme Court's analysis of each of the constitutional challenges: bill of attainder, privilege against self-incrimination, and equal protection. Finally, the author investigates the probable impact of the Court's decision.

Aids: Do Children With Aids Have A Right To Attend School?, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Equal Protection And The New Rational Basis Test: The Mentally Retarded Are Not Second Class Citizens In Cleburne, Gordon W. Johnson

Pepperdine Law Review

Recently, the Fifth Circuit held that classifications involving the mentally retarded were quasi-suspect and should be reviewed under a heightened scrutiny analysis. The Supreme Court reversed that holding but granted the retarded a remedy by applying a more genuine scrutiny under the rational basis test. The Court's decision in City of Cleburne, Texas v. Cleburne Living Center, Inc. raises the question whether the Court intends to apply an increased level of scrutiny under the rational basis test or whether this case merely represents another ad hoc decision made on the horns of a dilemma. This Note discusses the uncertain impact …

The Supreme Court Refused To Expand The Right Of Privacy To Include Homosexual Sodomy In Bowers V. Hardwick, Richard J. Wittbrodt

Pepperdine Law Review

No abstract provided.

Shelby V. Holder: Brief Of Professor Patricia A. Broussard And Famu College Of Law Students As Amici Curiae In Support Of Respondents, Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba

Amicus Briefs

Shelby County, Alabama v. Eric H. Holder, Jr., In the Supreme Court of the United States, Brief of Professor Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba and Named Students and Organizations of Florida A & M University College of Law as Amici Curiae in Support of Respondents

Just Another Brick In The Wall: The Establishment Clause As A Heckler's Veto, Richard F. Duncan

Nebraska College of Law: Faculty Publications

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'

Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Rethinking Section Five: Deference, Direct Regulation, And Restoring Congressional Authority To Enforce The Fourteenth Amendment, Tiffany C. Graham

Scholarly Works

After the Supreme Court's decision in City of Boerne v. Flores, the Court worked systematically to undermine the scope of Congress's regulatory authority under Section 5 of the Fourteenth Amendment. The Court did this as part of the neo-federalist revival, in an effort to restrain congressional power in favor of elevating state power against federal intrusion. The Court took this route in restraining various powers, among them the powers granted to Congress under Article I of the U.S. Constitution. Arguably, though, the effort to restrain Congress was most pronounced in the arena of Section 5. In this Article, I argue …

Using The Language Of Turner V. Rogers To Advocate For A Right To Counsel In Immigration Removal Proceedings, 46 J. Marshall L. Rev. 893 (2013), Shane T. Devins

UIC Law Review

No abstract provided.

The Mercenary Gap: How To Protect The Constitutional Rights Of American Contractors In The Age Of The Private Military Firm, 46 J. Marshall L. Rev. 1121 (2013), John Sviokla

UIC Law Review

No abstract provided.

Perry V. New Hampshire: Abandoning The Supreme Court's Fundamental Concern With Eyewitness Reliability, Shaun Gates

Maryland Law Review

No abstract provided.

The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser

Oklahoma Law Review

No abstract provided.

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

Is Economic Protectionism A Legitimate Governmental Interest Under Rational Basis Review?, Roger V. Abbot

Catholic University Law Review

No abstract provided.