Fourteenth Amendment Commons^™

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

Wisconsin’S 3/5 Compromise: Prison Gerrymandering In Wisconsin Dilutes Minority Votes To Inflate White Districts’ Population, Adam Johnson

Mitchell Hamline Law Review

No abstract provided.

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Prohibiting The Punishment Of Poverty: The Abolition Of Wealth-Based Criminal Disenfranchisement, Amy Ciardiello

University of Michigan Journal of Law Reform

The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is …

Roe And Casey Were Grievously Wrong And Should Be Overruled, Charles J. Cooper, Richard W. Garnett, Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf

Journal Articles

This essay, based on an amicus curiae brief filed in the Dobbs case, explains that the Roe and Casey decisions were "grievously wrong", that no traditional stare decisis considerations weigh in favor of retaining them, and that they should be overruled.

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

Courts Beyond Judging, Michael C. Pollack

Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

The Religious Freedom Restoration Act, Trinity Lutheran, And Trumpism: Codifying Fiction With Administrative Gaslighting, Robin S. Maril

Northwestern Journal of Law & Social Policy

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years.

Despite …

Emergency Removals Without A Court Order: Using The Language Of Emergency To Duck Due Process, Jane Brennan

Journal of Law and Policy

For a brief moment during the recent September democratic presidential debate, the ugly underbelly of the child welfare system unexpectedly took center stage. When asked about what responsibility Americans need to take to repair the legacy of slavery, the former vice president responded by propagating a myth that Black parents do not know how to parent. Former Vice President Joe Biden said “[w]e bring social workers into homes and parents to help them deal with how to raise their children. It’s not that they don’t want to help. They don’t—they don’t know quite what to do.” What exactly is it …

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

“A Climate Of Lawlessness”: Upholding A Government’S Affirmative Duty To Protect The Environment Using Deshaney’S Special Relationship Exception, Katherine G. Horner

Journal of Law and Policy

The Industrial Revolution introduced an era of exceptional technological advances. However, it also led to rampant environmental pollution and degradation. The proliferation of toxic pollutants in the air, water and soil has led us to the precipice of an unimaginable future; a future defined by climate change. This Note argues for the use of the special relationship exception, affirmed by the Supreme Court in DeShaney v. Winnebago, in environmental litigation in order to uphold governments’ affirmative duty to protect the environment. As federal and state governments have the sole power to regulate environmental pollution and enforce environmental protections, individuals are …

Inescapable Surveillance, Matthew Tokson

Utah Law Faculty Scholarship

Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.

In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot …

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …

In Defense Of Immutability, Nicholas Serafin

BYU Law Review

Over the last forty years, the concept of immutability has been central to Equal Protection doctrine. According to current doctrine, a trait is immutable if it is beyond the power of an individual to change or if it is fundamental to personal identity. A trait that meets either of these criteria receives heightened legal protection under constitutional antidiscrimination law. Yet most legal scholars who have addressed the topic have called for the abandonment of the immutability criterion on the grounds that the immutability criterion is conceptually confused, morally indefensible, and bound to stigmatize subordinate groups.

A rejection of the immutability …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons

Indiana Law Journal

This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a …

Escape From Plurality: Why The Best Interest Of The Child Is At Risk, Nicole Wren Friedlander

Cardozo International & Comparative Law Review

The note argues that the best interest of children in polygamous marriages is at risk due to the lack of legal protections in the United States. It highlights the financial and emotional vulnerabilities faced by women and children when polygamous unions dissolve, emphasizing the need for legal reforms to ensure equitable asset distribution and custody arrangements.

What Is "Appropriate" Legislation?: Mcculloch V. Maryland And The Redundancy Of The Reconstruction Amendments, Franita Tolson

Arkansas Law Review

I am thankful for the opportunity to review Professor David Schwartz’s really thoughtful and incisive critique of McCulloch v. Maryland. The book is a creative and masterful reinterpretation of a decision that I thought I knew well, but I learned a lot of new and interesting facts about McCulloch and the (sometimes frosty) reception that the decision has received over the course of the last two centuries. Professor Schwartz persuasively argues that modern views of McCulloch as a straightforward nationalist decision that has always had a storied place in the American constitutional tradition are flat-out wrong. The Spirit of the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Uncertain Immunity: Assessing Qualified Immunity In The Context Of Post-Arrest Excessive-Force Claims Arising Prior To A Judicial Determination Of Probable Cause, J. Tyler Barton

West Virginia Law Review

No abstract provided.

A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur

Articles

With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.

Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Many universities around the United States are attempting to grapple with their institution’s history of direct and indirect involvement with transatlantic slavery. One of the first schools to do so was Brown University, which appointed a special committee in 2003 to study its historic institutional ties to slavery. After three years of investigation and discussion, the Brown committee recommended the creation of a public campus memorial and widespread educational efforts. In 2015, Georgetown University undertook a similar investigation on its campus; the working group ultimately recommended renaming certain university buildings, erecting public memorials, creating an academic center of the study …

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

Manning V. Caldwell - A Harbinger?, Daniel S. Harawa

South Carolina Law Review

No abstract provided.

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the United States. …

South Dakota V. Wayfair: An Ill-Conceived Blow To The Free Flow Of Interstate Commerce, Revel Shinn Atkinson

Brooklyn Journal of Corporate, Financial & Commercial Law

For more than a century, brick-and-mortar retailers have been losing local customers—first with the rise of mail-order houses and then more acutely with the rapid growth of online retail. As a result, states have noticed a significant loss in sales tax revenue. While an equivalent amount of tax is typically still owed to the state in the form of a use tax, which is to be remitted to the state by the customer, because these taxes are not automatically collected at the time of the sale, customers have overwhelmingly elected not to pay them. In an effort to recover this …