Fourteenth Amendment Commons^™

Campaign Finance And Political Gerrymandering Decisions In The October 2005 Term, Burt Neuborne

Touro Law Review

No abstract provided.

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman

Chicago-Kent Law Review

This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals …

The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum

Michigan Law Review First Impressions

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

From Wolves, Lambs (Part Ii): The Fourteenth Amendment Case For Gradual Abolition Of The Death Penalty, Kevin Barry

Cardozo Law Review

Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.

Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it …

Summary Of Afzali V. State, 130 Nev. Adv. Op. 34, Sean Daly

Nevada Supreme Court Summaries

The Court determined whether a defendant has a constitutional right to know the racial composition of a grand jury that indicted him.

The State-Created Danger Doctrine, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Surrogate's Court, Broome County, In Re Guardian Of Derek, Barry M. Frankenstein

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, Hernandez V. Robles, Gennaro Savastano

Touro Law Review

No abstract provided.

Appellate Division, Fourth Department, People V. Mcfarley, Erica R. Borgese

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Moore, Gennaro Savastano

Touro Law Review

No abstract provided.

Abortion Rights, Michael C. Dorf

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler

Scholarly Publications

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid un-wanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent …

Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden

William & Mary Bill of Rights Journal

This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account the political …

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

Recent Developments In The Use Of Excessive Force By Law Enforcement, Karen M. Blum, Jack Ryan

Touro Law Review

No abstract provided.

The Fifth Circuit Buries Intrastate Economic Protectionism In St. Joseph Abbey V. Castille, Antonios Roustopoulos

Villanova Law Review (1956 - )

No abstract provided.

Truth Stories: Credibility Determinations At The Illinois Torture Inquiry And Relief Commission, 45 Loy. U. Chi. L.J. 1085 (2014), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

This is the first scholarly Article to investigate the inner workings of the Illinois Torture Inquiry and Relief Commission (“TIRC”). The TIRC was established by statute in 2009 to provide legal redress for victims of police torture. Prisoners who claim that their convictions were based on confessions coerced by police torture can utilize the procedures available at the TIRC to obtain judicial review of their cases. For those who have exhausted all appeals and post-conviction remedies, the TIRC represents the tantalizing promise of justice long denied. To be eligible for relief, however, the claimant must first meet the TIRC’s strict …

Futility Of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements, Tiffany R. Murphy

University of Michigan Journal of Law Reform

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. …

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee Kovarsky

Vanderbilt Law Review

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment's Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment's Privileges and Immunities Clause ("PI Clause") guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …

Evaluating Candidacy Restrictions: The Implications Of New York's Modified Approach, Brian Hodgkinson

Touro Law Review

No abstract provided.

You Have The Right To Be Free From Unwanted Bodily Intrusion--Unless Of Course There Is A Court Order, Tara Laterza

Touro Law Review

No abstract provided.

Don't Feed The Deer: Misapplications Of Statutory Vagueness And The First Amendment Overbreadth Doctrine, Brian Hodgkinson

Touro Law Review

No abstract provided.

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Petition For A Writ Of Certiorari, Patricia E. Roberts, Tillman J. Breckenridge, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Weathering Wal-Mart, Joseph A. Seiner

Notre Dame Law Review

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). …

Burwell V. Hobby Lobby Stores, Inc.: Brief Of Amici Curiae Historians And Legal Scholars Supporting Neither Party, William J. Novak

Appellate Briefs

Amici are scholars of history and law with an important interest in the question presented and particularly in the traditional treatment of corporations under American law.

Much of the research in this brief is drawn from papers by amici, developed through several meetings of the ongoing "Corporations and American Democracy" research initiative undertaken by the Tobin Project, a non-profit research organization.

Because amici have not examined the factual questions relating to the particular corporations at issue in these consolidated cases, they file this brief in support of neither party.

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky

Faculty Scholarship

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …