Fourteenth Amendment Commons^™

Unfinished Business: Protecting Voting Rights In The Twenty-First Century, Gilda R. Daniels

All Faculty Scholarship

While minorities have experienced great progress because of the Voting Rights Act, particularly section 5 of the Act, the work to achieve an electoral process free of discrimination remains unfinished. In Shelby County v. Holder, the Supreme Court struck down section 4 of the Act, which provided the coverage formula through which section 5 was implemented. Without section 4, there is no section 5. The historical and contemporaneous discrimination that minorities in states formerly covered under section 5 continue to face is substantial and outpaces that in noncovered states. Scholars cannot divorce the debate surrounding section 5’s constitutionality, which continues …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Rights Of Belonging For Women, Rebecca E. Zietlow

Indiana Journal of Law and Social Equality

No abstract provided.

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Touro Law Review

Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.

Connecticut Department Of Public Safety V. Doe: The Supreme Court's Clarification Of Whether Sex Offender Registration And Notification Laws Violate Convicted Sex Offenders' Right To Procedural Due Process, Gabriel Baldwin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman

Touro Law Review

In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean …

Clark V. Martinez: Striking A Balance Between United States Security And Due Process Rights Of Illegal Immigrants, Michelle Mitsuye Shimasaki

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Practicalities And Peculiarities: The Heightened Due Process Standard For Notice Under Jones V. Flower, Emily Riley

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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 …

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.

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 …

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 …

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta

Law Faculty Publications

No abstract provided.

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 …

Giving Kids Their Due: Theorizing A Modern Fourteenth Amendment Framework For Juvenile Defense Representation, Mae C. Quinn

Journal Articles

This Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault. It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must …

Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler

Scholarly Publications

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …

The Origins Of The Privileges Or Immunities Clause, Part Iii: Andrew Johnson And The Constitutional Referendum Of 1866, Kurt T. Lash

Law Faculty Publications

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public …

The Continued Viability Of New York’S Juvenile Offender Act In Light Of Recent National Developments, Katherine Lazarow '12

NYLS Law Review

No abstract provided.

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Barry Law Review

This article seeks to apply Rogers Smith’s Multiple Traditions thesis to the United States Supreme Court’s treatment of the Fourteenth Amendment to uncover the influences behind its major civil rights decisions. It will argue that liberalism dominates at the Court after mostly, but not completely, shedding its illiberal tendencies. This article will argue that the Court’s focus on intent over impact and its “color-blind” approach to racial classifications in the era of subterranean prejudice and indifference or ignorance to inequality solidifies and perpetuates the hierarchies created by ascriptive forms of Americanism under the Court’s liberal notions. This article will also …

The Second Circuit’S En Banc Crisis, Mario Lucero

Cardozo Law Review de•novo

Part I of this Note is an empirical survey of the history of the en banc practice in the Second Circuit. First is an explanation of the en banc process and an examination of the hearings en banc that did take place and their outcomes in the Supreme Court. Second is a discussion of the mini en banc, which is the practice of circulating opinions that serves as an abbreviated substitute for full en banc hearings. Third is an examination of the myriad opinions that have been inspired by the denials of rehearing en banc, with special attention to the …

Slavery, Free Blacks And Citizenship, Henry L. Chambers, Jr.

Law Faculty Publications

Reconstruction Amendments says about the nature of American citizenship. The essay is organized as follows. Part I of the essay explores citizenship and membership by discussing belonging-based citizenship and rights-based citizenship. Part II describes how American and African American citizenship were constructed prior to the passage of the Reconstruction Amendments. Part III notes a few cases to explain how the Reconstruction Amendment's jurisprudence has developed in the wake of Dred Scott v. Sandford' and possibly led to a tilt toward a rights-based citizenship rather than a somewhat more robust belonging-based citizenship.

Landscape Fairness: Removing Discrimination From The Built Environment, Stephen Clowney

Utah Law Review

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of …

Court Of Appeals Of New York - People V. Luciano, Natasha Shishov

Touro Law Review

No abstract provided.

National Collegiate Athletic Association V. Tarkanian: Supreme Court Upholds Ncaa's Private Status Under The Fourteenth Amendment, Repelling Shark's Attack On Ncaa's Disciplinary Powers, Michael G. Dawson

Pepperdine Law Review

No abstract provided.

A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler

Pepperdine Law Review

No abstract provided.

Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle

Pepperdine Law Review

No abstract provided.

The Private Club Exemption From Civil Rights Legislation - Sanctioned Discrimination Or Justified Protection Of Right To Associate, Margaret E. Koppen

Pepperdine Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.