Fourteenth Amendment Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey

Washington and Lee Journal of Civil Rights and Social Justice

In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …

Warrant Nullification, L. Joe Dunman

West Virginia Law Review

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people's homes. Many search warrants are executed by militarized "dynamic entry" teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide-not just suspects but also officers and bystanders. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This Article explores one such option: nullification. …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Administrative Investigations, Aram A. Gavoor, Steven A. Platt

Indiana Law Journal

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts have held …

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Scholarly Works

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Hslda Concerned With More Than Just Homeschool, Griffin S. Kelly

Capstones

My capstone is just one piece of a greater investigation into homeschooling in America. For my piece, my colleague Keith Medelis reported on the Home School Legal Defense Association, a premiere homeschooling advocacy group that provides legal advice to its members and lobbies against any regulations they find restrictive to the homeschooling process.

Our goal was to see exactly what their mission is because beyond homeschooling, the HSLDA advocates for small government, religious (mainly Christian) freedoms and protecting its members from child protective services.

A review of 84 court cases revealed that the HSLDA has occasionally engaged in legal battles …

Ineffective Counsel In Death Penalty Cases And The Promise Of Therapeutic Jurisprudence, Michael L. Perlin, J.D.

Articles & Chapters

It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

Facial Recognition And The Fourth Amendment In The Wake Of Carpenter V. United States, Matthew Doktor

University of Cincinnati Law Review

No abstract provided.

The Exclusionary Rule, And The Problem With Search And Seizure Law Under The Ohio Constitution, Corey Bushle

University of Cincinnati Law Review

No abstract provided.

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Uncertain Immunity: Assessing Qualified Immunity In The Context Of Post-Arrest Excessive-Force Claims Arising Prior To A Judicial Determination Of Probable Cause, J. Tyler Barton

West Virginia Law Review

No abstract provided.

A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur

Articles

With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.

Drones: Where Does The National Airspace System Start?, Jason T. Lorenzon J.D.

National Training Aircraft Symposium (NTAS)

Unmanned Aerial Systems (UAS), Unmanned Aeronautical Vehicles (UAV), drones and Personal Aerial Vehicles (PAV) constitute the greatest technological advancement since the jet age. (Elaine Chao, Secretary of Transportation, October 26, 2017) This technological advancement has prompted significant public policy challenges and the need for new laws regarding navigable airspace. This proposal investigates how airspace used by drones will evolve given existing Constitutional and common law principals. These principals will influence the creation, development and modification of UAS airspace regulations by the Federal Aviation Administration (FAA).

Two critical but unanswered questions concerning the National Airspace System, are where does navigable airspace …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Unified Constitutional View Of Financial Punishment: Synthesizing The Excessive Fines Clause And Bearden­ Based Protections, Joshua A. Feinzig

Faculty Scholarship

This Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal debt into a severe liberty deprivation. But in recognizing how the two doctrines are normatively and functionally reinforcing, this Note proposes a single framework for considering financial punishment's constitutionality.

If the Eighth Amendment protection applies at the imposition of a financial punishment, Bearden provides a "second look" at the constitutionality of …