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Articles 151 - 180 of 286
Full-Text Articles in Fourteenth Amendment
Beyond Incorporation, Kurt T. Lash
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. …
Abolishing The Time Tax On Voting, Elora Mukherjee
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 …
The Search For Due Process In Civil Commitment Hearings: How Procedural Realities Have Altered Substantive Standards, Christyne E. Ferris
The Search For Due Process In Civil Commitment Hearings: How Procedural Realities Have Altered Substantive Standards, Christyne E. Ferris
Vanderbilt Law Review
The civil commitment of mentally ill individuals presents the legal system with an intractable question: When should the law deprive someone of the fundamental right to liberty based on a prediction of future dangerousness? Advocates of both increased and decreased levels of civil commitment offer compelling case studies to help resolve the question. The former point to high profile events like the Virginia Tech shooting, in which mandatory incapacitation of the perpetrator at the first sign of mental illness could have prevented a senseless tragedy. The latter highlight the lives of individuals like Kenneth Donaldson, whose father had him committed …
Washington V. Glucksberg Was Tragically Wrong, Erwin Chemerinsky
Washington V. Glucksberg Was Tragically Wrong, Erwin Chemerinsky
Michigan Law Review
Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects …
Young, Illegal, And Unaccompanied: One Step Short Of Legal Protection, Raya Jarawan
Young, Illegal, And Unaccompanied: One Step Short Of Legal Protection, Raya Jarawan
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Law Faculty Publications
No abstract provided.
Richard Sheppard Arnold: A Distinguished Jurist, A Loyal Colleague And A Good Friend, Gerald W. Heaney
Richard Sheppard Arnold: A Distinguished Jurist, A Loyal Colleague And A Good Friend, Gerald W. Heaney
University of Arkansas at Little Rock Law Review
No abstract provided.
Certifying Mandatory Punitive Damages Classes In A Post-Ortiz And State Farm World, Aileen L. Nagy
Certifying Mandatory Punitive Damages Classes In A Post-Ortiz And State Farm World, Aileen L. Nagy
Vanderbilt Law Review
Punitive damages are a civil penalty "aimed at deterrence and retribution" that further the state's interest in punishing unlawful conduct.' They are meant to "sting" and should be imposed proportionally according to the "egregiousness of the harm and the wealth of the transgressor." While compensatory damages are intended to compensate plaintiffs for their concrete losses, punitive damages use the plaintiff as an instrument for "visiting [] punishment upon [the] extreme tortious misdeeds" of defendants. As such, it is well settled that no individual plaintiff is entitled to punitive damages; however, "it is equally true that no transgressor is entitled to …
Bolling Alone, Richard A. Primus
Bolling Alone, Richard A. Primus
Articles
Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …
Student Suspension For Possession Of Contraband In Student Vehicles: Correct Guidance From The Tenth Circuit, Larry Lewis
Student Suspension For Possession Of Contraband In Student Vehicles: Correct Guidance From The Tenth Circuit, Larry Lewis
Oklahoma Law Review
No abstract provided.
A Parent's Rights Under The Fourteenth Amendment: Does Kentucky's De Facto Custodian Statute Violate Due Process?, Elizabeth Ashley Bruce
A Parent's Rights Under The Fourteenth Amendment: Does Kentucky's De Facto Custodian Statute Violate Due Process?, Elizabeth Ashley Bruce
Kentucky Law Journal
No abstract provided.
Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero
Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero
Faculty Scholarship
Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Faculty Scholarship
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White
Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White
Michigan Law Review
As Yale Kamisar's writings on police interrogation demonstrate, our simultaneous commitments to promoting law enforcement's interest in obtaining confessions and to protecting individuals from overreaching interrogation practices have created a nearly irreconcilable tension. If the police must be granted authority to engage in effective questioning of suspects, it will obviously be difficult to insure that "the terrible engine of the criminal law . . . not . . . be used to overreach individuals who stand helpless against it." If we are committed to accommodating these conflicting interests, however, some means must be found to impose appropriate restraints on the …
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Articles
Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …
Section 1983 Litigation - Supreme Court Developments, Martin A. Schwartz
Section 1983 Litigation - Supreme Court Developments, Martin A. Schwartz
Touro Law Review
No abstract provided.
The Constitutional Right Of Poor People To Appeal Without Payment Of Fees: Convergence Of Due Process And Equal Protection In M.L.B. V. S.L.J, Lloyd C. Anderson
The Constitutional Right Of Poor People To Appeal Without Payment Of Fees: Convergence Of Due Process And Equal Protection In M.L.B. V. S.L.J, Lloyd C. Anderson
University of Michigan Journal of Law Reform
In this Article, Professor Lloyd Anderson examines the recent decision M.L.B. v. S.L.J., in which the United States Supreme Court held that due process and equal protection converge to require that states cannot require indigent parents who seek to appeal decisions terminating their parental rights to pay court costs they cannot afford. Noting that this decision expands the constitutional right of cost-free appeal from criminal to civil cases for the first time, Professor Anderson discusses the characteristics a civil case should have in order to qualify for such a right. Professor Anderson proposes a number of other civil cases, …
From Enemies Of The Crown To Regional Telephone Companies: Bills Of Attainder Reappraised, Michael L. Landsman
From Enemies Of The Crown To Regional Telephone Companies: Bills Of Attainder Reappraised, Michael L. Landsman
Touro Law Review
No abstract provided.
The Abortion Right, Originalism, And The Fourteenth Amendment, Steven Graines, Justin Wyatt
The Abortion Right, Originalism, And The Fourteenth Amendment, Steven Graines, Justin Wyatt
Cleveland State Law Review
In this article, the Privileges or Immunities Clause will be re-conceived in its original context, at the center of the Fourteenth Amendment. This re-conception includes the assumption that The Slaughter-House Cases" were decided incorrectly.'" The contention of the article is that abortion restrictions, as a specific originalist matter, can be considered economic legislation and that they also economically burden women, such that they unconstitutionally abridge two privileges or immunities, the Lochnerian liberties to contract and the engagement in any of the common occupations. Specifically, abortion restrictions violate "the prohibition on redistributive 'class' legislation ... that was deeply rooted in the …
Due Process, Court Of Appeals: People V. Thompson
Due Process, Court Of Appeals: People V. Thompson
Touro Law Review
No abstract provided.
Due Process, Court Of Appeals: Chaya S. V. Frederick L.
Due Process, Court Of Appeals: Chaya S. V. Frederick L.
Touro Law Review
No abstract provided.
Due Process, Supreme Court New York County: Ramanadhan V. Wing
Due Process, Supreme Court New York County: Ramanadhan V. Wing
Touro Law Review
No abstract provided.
Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider
Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider
Articles
As I write, the Supreme Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy …
It Started With Quinlan: The Ever Expanding 'Right To Die', Yale Kamisar
It Started With Quinlan: The Ever Expanding 'Right To Die', Yale Kamisar
Articles
Few rallying cries sound more straightforward than the "right to die"-but few are more fuzzy or more misunderstood. This becomes all too evident when comparing the right-to-die decision handed down by the U.S. Ninth Circuit Court of Appeals earlier this month and the New Jersey Supreme Court's decision in the Karen Ann Quinlan case twenty years ago. At different times, the "right to die" has embraced significantly different rights. On March 6, in Compassion in Dying v. Washington State, the Ninth Circuit held that because a Washington state statute prohibiting assisted suicide prevents physicians from providing assistance to competent, terminally …
A Disparity That Is Worlds Apart: The Federal Sentencing Guidelines Treatment Of Crack Cocaine And Powder Cocaine, Kimberley Mache Maxwell
A Disparity That Is Worlds Apart: The Federal Sentencing Guidelines Treatment Of Crack Cocaine And Powder Cocaine, Kimberley Mache Maxwell
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Section 1983 Litigation, Martin A. Schwartz
A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia
A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia
Articles
On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …
Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb
Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb
Cornell Law Faculty Publications
American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right. She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even …