Fourteenth Amendment Commons^™

Due Process And Targeted Killing Of Terrorists, Richard Murphy, Afsheen John Radsan

Cardozo Law Review

"Targeted killing" is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular - Israel and the United States - have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda - particularly in the border areas …

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker

Scholarly Works

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.

The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Liberty Of Innocent Delights: Obscene Devices And The Limits Of State Power After Lawrence V. Texas, E. Benton Keatley

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

States Of Resistance: The Real Id Act And The Limits Of Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The goal of this Article is to discuss the justiciability of issues arising under immigration federalism by examining the constitutionality of the REAL ID Act. Part I discusses states' authority over non-citizens and the history of "immigration federalism" jurisprudence. Part II explores key provisions of the REAL ID Act, the WHTI, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver's licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

Bowen V. Oregon: Brief Of Jeffrey Abramson, Caroline L. Davidson, Shari S. Diamond, Theodore Eisenberg, Phoebe C. Ellsworth, Samuel R. Gross, Valerie P. Hans, Stephen Kanter, Norbert L. Kerr, Stephan Landsman, Robert J. Maccoun, Susan F. Mandiberg, Margaret L. Paris, Jeffrey J. Rachlinski, Mary R. Rose, Michael J. Saks, And Neil Vidmar As Amici Curae In Support Of Petitioner, Phoebe C. Ellsworth

Appellate Briefs

Amici are university professors whose teaching and scholarship have addressed historical, behavioral, and constitutional questions about jury unanimity. Amici are identified in the Appendix.

In Apodaca v. Oregon, 406 U.S. 404 (1972), and its companion case, Johnson v. Louisiana, 406 U.S. 356 (1972), a fractured Court concluded that the Sixth and Fourteenth Amendments did not mandate the traditional requirement of unanimity for criminal jury trials in state courts. The Court recognized that unanimity had been a requirement of common-law juries for hundreds of years, but a plurality considered that historical background unimportant. Instead, the plurality relied on a …

Felon Disenfranchisement As A Legitimate State Regulation, Boyoung Kang

Journal of Race, Gender, and Equality

No abstract provided.

Loyalty Testing For Attorneys: When Is It Necessary And Who Should Decide?, Mary Elizabeth Basile

Cardozo Law Review

The concept of loyalty has been manipulated to mean different things with respect to the profession of law depending on the political climate brought about by national crises throughout the history of this country. An attorney's loyalty to his country has referred to more than mere allegiance and support of the laws of the sovereignty in that it has been understood to concern specified beliefs, doctrines, and associations. It has been tested through the imposition of loyalty oaths from the colonial days through the Civil War and Cold War, to the current post-September 11 era in which the government's emphasis …

Roe At Thirty-Six And Beyond: Enhancing Protection For Abortion Rights Through State Constitutions, Linda J. Wharton

William & Mary Journal of Race, Gender, and Social Justice

In a series of decisions over the past three decades, the Supreme Court has seriously undermined Roe v. Wade's promise of full and meaningful federal constitutional protection for women's access to abortion. While the new Obama administration will enhance protection for reproductive rights at the federal level, the reality remains that reconstituting the Supreme Court with a majority of Justices amenable to fully restoring Roe's strict protections will likely take many years. This Article considers whether state constitutions are a promising avenue for enhancing protection for abortion rights.

This Article looks back on thirty years of reproductive rights litigation under …

Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker

Faculty Publications

No abstract provided.

New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza

Faculty Scholarship

No abstract provided.

Towards A More Reasonable Approach To Free Will In Criminal Law, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The End Of Citizenship?, Jonathan Weinberg

Michigan Law Review

Part I of this Review challenges his view that the value of American citizenship is in decline. Part II critiques his discussion of the lines drawn by citizenship law-who is or can become a citizen-and what those lines mean for the nature of citizenship in the modem age. This Part urges that the lack of fit between our citizenship rules and the goal of organic community is hardly new; it was a feature of our citizenship law long before current globalization trends. Part III discusses the meaning of citizenship, and the basis for citizenship and immigration exclusions, in the context …

Pierce Butler: A Supreme Technician, David R. Stras

Vanderbilt Law Review

Despite serving for more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the lesser-known Justices in American history. When his name is mentioned by constitutional scholars, it is usually to deride him for being one of the so-called "Four Horsemen of the Apocalypse," a group of Justices that invalidated efforts by politicians, especially President Franklin Delano Roosevelt, to enact New Deal reforms. Scholars have characterized his role in the development of constitutional law as "minimal," and he is the subject of only one full-length book, A …

Protecting The Right To Marital Property: Ensuring A Full Equitable Distribution Award With Fraudulent Conveyance Law, Benjamin M. Ellis

Cardozo Law Review

No abstract provided.

Terms Of Imprisonment: Treating The Noncitizen Offender Equally, Nora V. Demleitner

Scholarly Articles

Not available.

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Reversal, Mcdonald V. City Of Chicago, Nos. 08-4241, 08-4243, 08-4244 (7th Cir. Filed 2009)., Richard L. Aynes, Jack M. Balkin, Michael K. Curtis, Michael A. Lawrence

Con Law Center Amicus Briefs

The parties—and the district court below—all agree that the threshold question in this case is whether the individual right to bear arms recently recognized by the Supreme Court in District of Columbia v. Heller, and applied in the context of the federal government and the District of Columbia, must also be protected against state infringement. In modern Supreme Court jurisprudence, the most common means of “incorporating” rights enumerated in the Bill of Rights against the states has been under the Due Process Clause of the Fourteenth Amendment. However, the textually and historically accurate approach to determining whether the Fourteenth Amendment …

The Role Of Courts Vis-À-Vis Legislatures In The Same-Sex Marriage Context: Sexual Orientation As A Suspect Classification, Ingrid M. Lofgren

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

No abstract provided.

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

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

No abstract provided.

A Cautionary Tale: The Obama Coalition, Anti-Subordination Principles And Proposition 8, Jennifer Holladay, Catherine Smith

Scholarly Articles

In his journey to the White House, Barack Obama demonstrated that he could be, in the words of Dr. King, not merely "a searcher for consensus but a molder of consensus," creating a coalition that called us to "look after not only ourselves but each other."

To be sure, Obama's coalition is an imperfect one. Proposition 8's passage reminds us that we still fall too readily into the categories of "us and them"--categories in which subjugated groups fight against each other, rather than alongside each other.

Still, Obama has set us on a new path in America's long journey toward …

Saul Alinsky And The Litigation Campaign To Win The Right To Same-Sex Marriage, 42 J. Marshall L. Rev. 643 (2009), Gerald N. Rosenberg

UIC Law Review

No abstract provided.

Social Movements, Social Process: A Response To Gerald Rosenberg, 42 J. Marshall L. Rev. 671 (2009), Laura Beth Nielsen

UIC 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 …

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

Articles

Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

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, …

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