Fourteenth Amendment Commons^™

Courting Oblivion Part Iii: Enacting A Chelsea Manning Act Of Oblivion And Amnesty, Joshua J. Schroeder

Cleveland State Law Review

This is the third and final part of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness, usually to predicate a second chance, a restart, or even an era of reconstruction. This Article begins with an exposition of former President Donald J. Trump’s several indictments, including his indictment under the Espionage Act of 1917. It explains how, even while being charged for espionage, Trump and other nonwhistleblower suspects appear to unfairly benefit from a double standard.

The Article gives an exposition of the origins of whistleblower protections in …

Alabama’S Ivf Immunity Law: A Constitutional License To Kill?, Dani Wasshausen

Washington and Lee Law Review

In today’s post-Dobbs world, states may freely define fetal “persons” and those fundamental rights afforded to them, but not without consequence. The Supreme Court of Alabama’s groundbreaking decision in LePage v. Center for Reproductive Medicine, P.C., holding that frozen embryos are “children” under the Wrongful Death of a Minor Act, led fertility clinics and services across the state to close. These in vitro fertilization (IVF) providers feared liability exposure because their standard practices—including embryonic fertilization, testing, cryopreservation, and transfer—inevitably result in damage or death to embryos. The Alabama Legislature swiftly responded by enacting a law granting broad civil and criminal …

No More Mixed Message, Missing Money: Revisiting The Birth Of Icl’S Victim Restoration-Reparations Regime To Conceptualize Its Modern Reform, Gregory S. Gordon

Cardozo International & Comparative Law Review

The article argues that the International Criminal Court's (ICC) system for victim reparations is fundamentally flawed due to mission dissonance between its punitive and restorative goals, insufficient funding, and procedural limitations. It proposes the creation of an independent Atrocity Victim Reparations Tribunal (AVRT) under the UN to address these issues, ensuring more effective and victim-centered reparations.

The Equal Rights Amendment: The 28th Amendment To The U.S. Constitution, Twiss Butler, Patrick Butler

Dignity: A Journal of Analysis of Exploitation and Violence

This article reviews how Supreme Court interpretations of the 14^th Amendment have allowed laws to discriminate against women. It aims to show that the Equal Rights Amendment, ratified as the 28^th Amendment in 2020, offers a constitutional basis for eliminating all forms of legal sex discrimination against women. These forms include discrimination based on pregnancy and abortion, commodifying women’s bodies, and allowing men to intrude into women’s protected spaces. The review starts with the denial of protection for women by America’s Declaration of Independence in 1776, denounces the Supreme Court’s precedent-setting 1974 Geduldig decision, which ruled—quite illogically—that discrimination …

Personhood After Dobbs, Joshua J. Craddock

Catholic University Law Review

Following the Supreme Court’s decision to overturn Roe v. Wade in 2022, unsettled questions remain about the constitutional status of unborn children. With good reason, Dobbs v. Jackson Women’s Health Organization did not address whether unborn children are persons within the original meaning of the Due Process and Equal Protection Clauses. The historical evidence, however, is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included every human being—children in the womb among them. And if unborn human beings were included within the original public meaning of “person” in …

Transgender Equality: An Inflection Point For Equal Protection?, Katie Eyer

University of Cincinnati Law Review

No abstract provided.

Casa, Inc. V. Trump: Brief Of Amici Curiae Immigration Law Scholars Kristin Collins, Gerald Neuman, And Rachel Rosenbloom In Support Of Appellees, Kristin Collins

Appellate Briefs

USCA4 Appeal: 25-1153

Amici Kristin Collins, Gerald Neuman, and Rachel Rosenbloom are legal scholars with expertise in U.S. citizenship and immigration law. Amici have a professional interest in ensuring that the Court is properly informed with respect to the history and meaning of the birthright citizenship statute, 8 U.S.C. § 1401(a), and its importance to this case.

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

A Crust Of Bread: Religious Resistance And The Fourteenth Amendment, Kurt T. Lash, Stephanie Hall Barclay -- Professor Of Law

Vanderbilt Law Review

In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

Exploring Education Policy And Resources In Virginia Secondary Education, Gabrielle Lyon

Departmental Honors & Graduate Capstone Projects

The study examines the intersection of federal special education policy within Virginia's secondary schools, specifically focusing on teachers’ compliance with the Individuals with Disabilities Education Act (IDEA). The study explores educators' awareness and usage of the Virginia Department of Education's hearing decisions index, which documents IDEA violations and due process decisions. Through analyzing federal education legislation, state implementation practices, and teacher perspectives, this study reveals critical gaps in educator preparation and resource awareness regarding special education policy compliance. The findings suggest that while the IDEA violations are being tracked and documented, there remains a significant disconnect between available resources and …

Codetermination’S Moment Of Truth: Overseas Workers, Jens Dammann

BYU Law Review

The idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law scholars are embracing the idea of giving employees a voice in corporate governance.

However, anyone endorsing codetermination must confront a critical dilemma: whether to limit representation to U.S.-based employees or whether to extend it to overseas workers as well. The question’s practical importance is obvious given …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

BYU Law Review

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and …

Sentencing Roulette: The Absurdity And Unconstitutionality Of The Crime Of Violence Enhancements, Noam Kozlov

University of Miami Race & Social Justice Law Review

The law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as 'violent'. Despite this detrimental impact of the COV rules, …

Hoodwinked By Rucho: The Illusion Of Protection For Racial Gerrymandering In Federal Courts, Krystell Fienco

University of Miami Race & Social Justice Law Review

"lt is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." - Marbury v. Madison, 5 U.S. 137 (1803).

"[W]e must never forget, that it is a constitution we are expounding." - McCulloch v. Maryland, 17 U.S. 316 (1819).

A New Equal Protection And Due Process Clause: Pushing Back On The Eleventh Circuit’S Error In Corbitt, Alberto Bufalino

University of Miami Race & Social Justice Law Review

No abstract provided.

The Right To Gender-Affirming Care, Justin J. Soulas

Theses and Dissertations

As of recent, twenty-four states have enacted bans on gender-affirming care, restricting minors from accessing medically necessary treatment. Existing scholarship has begun to explore the profound impact of these bans on transgender youth, their parents or guardians, and the medical professionals who support them. However, the body of literature on this rapidly evolving issue remains limited. This thesis aims to fill that gap by offering a legal defense of gender-affirming care, grounded in judicial precedent. It argues that parental rights to make medical decisions for their children—recognized in constitutional jurisprudence—extend to decisions involving gender-affirming treatment. Additionally, it draws on anti-discrimination …

Trump V. Casa, Inc.: Brief Of Scholars Of Constitutional Law And Immigration As Amici Curiae In Support Of Respondents, Samuel Erman

Appellate Briefs

Amici are law professors whose research focuses on constitutional law and immigration. Amici have an interest in ensuring that the Fourteenth Amendment is interpreted in a manner consistent with its text and history, and accordingly have an interest in this case.

Splitting Equality: Access To Gender-Affirming Care In The Fourth Circuit, Gilbert D. Jones

Journal of Law and Health

This Note critically examines the evolving legal landscape surrounding transgender individuals' access to gender-affirming care in the United States, focusing on two pivotal cases before the Fourth Circuit: Kadel v. Folwell (North Carolina) and Fain v. Crouch (West Virginia). These cases present a constitutional and statutory challenge to the exclusion of medically necessary gender-affirming care from state health plans, under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The Note contextualizes these lawsuits within a broader historical trajectory of transgender rights, highlighting legal and cultural milestones that have shaped access …