Fourteenth Amendment Commons^™

Engquist V. Oregon Department Of Agriculture: No Harm Meant? The Vanquished Requirement Of Ill-Will In Class-Of-One Equal Protection Claims And The Erosion Of Public Employees’ Constitutional Rights, Kerstin Miller

Maryland Law Review

No abstract provided.

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

Eatin' Good? Not In This Neighborhood: A Legal Analysis Of Disparities In Food Availability And Quality At Chain Supermarkets In Poverty-Stricken Areas, Nareissa Smith

Michigan Journal of Race and Law

Many Americans-especially the poor-face severe hurdles in their attempts to secure the most basic of human needs-food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain--but located in a wealthier neighborhood-she would …

Do Not (Re)Enter: The Rise Of Criminal Background Tenant Screening As A Violation Of The Fair Housing Act, Rebecca Oyama

Michigan Journal of Race and Law

Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, …

Defensive Mechanism: A Father's Right To Defend The Unborn, Lawrence Estrada

Cardozo Journal of Equal Rights & Social Justice

The note examines the Michigan Court of Appeals' decision in Kurr, which recognized a father's right to defend his unborn children under the defense of others doctrine, citing Michigan's fetal homicide law. This ruling extends legal protections to fetuses while maintaining exceptions for lawful abortions, reflecting broader shifts in legal and public policy toward fetal protection. The decision highlights the tension between protecting unborn life and preserving women's reproductive rights, emphasizing the narrow application of the defense to avoid undermining abortion rights established by Roe v. Wade.

Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud

Journal Publications

"Equal protection" and "due process of law" are constitutional guarantees tenaciously embraced by all Americans.' While numerous studies focused on how these guarantees play out in the lives of offenders, few sought to examine these guarantees from the standpoint of offenders, particularly those from disadvantaged socio-economic backgrounds. Guaranteed under the Fourteenth Amendment of the U.S. Constitution, the Equal Protection Clause makes clear, in part, that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due …

Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud

Journal Publications

With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.

The Gendered Nature Of Domestic Violence: Statistical Data For Lawyers Considering Equal Protection Analysis, Molly Dragiewicz, Yvonne F. Lindgren

Faculty Works

In Woods v. Horton, the California’s Third District Court of Appeal in Sacramento ruled that a state Health and Safety Code section funding domestic violence shelter services specifically for battered women and their children violated equal protection. Using the strict scrutiny standard of review, the court held that under the state’s Equal Protection Clause, women and men are “similarly situated” with regard to domestic violence and, therefore, the language in the code should be revised to make state funding for domestic violence shelter services under that code gender-neutral. Woods is the first successful legal decision for the anti-feminist “fathers’ rights” …

Changing Equalities, Jack B. Weinstein

NYLS Law Review

No abstract provided.

This Right Is Not Allowed By Governments That Are Afraid Of The People: The Public Meaning Of The Second Amendment When The Fourteenth Amendment Was Ratified , Clayton E. Cramer, Nicholas J. Johnson, George A. Moscary

Faculty Scholarship

The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in …

A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation …

Crawford V. Marion County Election Board: A Picture Is Worth A Thousand Words And Exactly One Vote, Brian C. Crook

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran

Articles

A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.

How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar

Articles

We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3

Using The Fourteenth Amendment To Protect The Integrity Of Kinship Foster Families, Jennifer Baum, Teresa J. Grogan

Faculty Publications

(Excerpt)

As children’s advocates, we know well the value of an extended family to a dependency case. Living with a family member is often considered by children removed from their parents to be the “second best.” Such arrangements are often more comforting, less socially stigmatizing, and more capable at facilitating children’s normal daily routines, including school, medical care, and religious training, than stranger foster care. The social and psychological benefits of kinship care are well documented. One recent retrospective study concluded that children in kinship foster care have fewer behavioral problems three years after placement than do children who were …

Barriers To Freedom: Continued Failure Of U.S. Immigration Laws To Offer Equal Protection To Immigrant Battered Women, Katerina Shaw

Cardozo Journal of Equal Rights & Social Justice

The note argues that U.S. immigration laws, despite advancements made by the Violence Against Women Act (VAWA), continue to fail in providing equal protection and adequate relief to immigrant battered women. It highlights that these women face significant legal and non-legal barriers, including unequal treatment under VAWA, burdensome evidentiary requirements, and cultural and financial obstacles that prevent them from seeking help and escaping abusive relationships.

Beyond Incorporation, Kurt T. Lash

Law Faculty Publications

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …

Pregnancy And Sex-Role Stereotyping, From 'Struck' To 'Carhart', Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …

Winnter, Best Appellate Brief In The 2009 Native American Law Student Association Moot Court Competition, Alex Hagen, J.R. Laplante

American Indian Law Review

No abstract provided.

Abolishing The Time Tax On Voting, Elora Mukherjee

Faculty Scholarship

A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit

Michigan Law Review

In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment chrallenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.