Fourteenth Amendment Commons^™

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Minnesota Journal of Law & Inequality

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017

Does The African American Need Separate Charter Schools?, Julian Vasquez Heilig, Steven Nelson, Matt Kronzer

Minnesota Journal of Law & Inequality

No abstract provided.

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …

The Privileges And Immunities Of Non-Citizens, R. George Wright

Cleveland State Law Review

However paradoxically, in some practically important contexts, non-citizens of all sorts can rightly claim what amount to privileges and immunities of citizens. This follows from a careful and entirely plausible understanding of the inherently relational, inescapably social, and essentially reciprocal nature of at least some typical privileges and immunities.

This Article contends that the relationship between constitutional privileges and immunities and citizenship is more nuanced, and much more interesting, than usually recognized. Crucially, allowing some non-citizens to invoke the privileges and immunities of citizens often makes sense. The intuitive sense that non-citizens cannot logically claim the privileges or immunities of …

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.

You Play Ball Like A Girl: Cultural Implications Of The Contact Sports Exemption And Why It Needs To Be Changed, Michelle Margaret Smith

Cleveland State Law Review

Women in the United States have historically earned significantly less income per year compared to their male counterparts. In 2014, the pay discrepancy was at its lowest point with women earning seventy-nine cents per every dollar men earned. This discrepancy exists even though women now attain college degrees at a higher rate than men and make up 47% of the labor force. In sports, the pay discrepancy is even greater. At the professional level, women earn as little as 1.2% of what their male counterparts earn. This Note addresses how changing the contact sports exemption in Title IX to allow …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

Bristol-Myers Squibb Co. V. Superior Court: Reproaching The Sliding Scale Approach For The Fixable Fault Of Sliding Too Far, John V. Feliccia

Maryland Law Review

No abstract provided.

The Privacy Of The Public Schools, Emily Suski

Maryland Law Review

This Article compares the liability of the public schools with that of families for harms to children in their care. Families serve as an apt vehicle for comparative analysis because families’ and schools’ responsibilities for children overlap substantially. Despite these overlapping responsibilities, however, the law allows schools to evade liability for harms to children and penalizes families for the same or similar harms.

Drawing on feminist theory on privacy and the public/private divide, this Article argues that the limits of public school liability mean they have privacy. Feminist theorists identify privacy as freedom from regulation and intrusion into decision-making. Public …

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Michigan Law Review Online

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the …

Guilty Until Proven Innocent: California's Prop. 50 Turns The Concept Of Due Process On Its Head, Brantley I. Pepperman

Loyola of Los Angeles Law Review

For decades, “good governance” has been little more than a talking point for politicians on the road to reelection or a promotion to higher office. In 2014, the California Legislature attempted to give teeth to the idea, successfully spearheading an amendment to the California Constitution approved by voters in 2016. But despite its efforts to “drain the swamp,” the Legislature gave itself a powerful tool, the authority to suspend or expel legislators without pay, that presents more problems than solutions. This article explores the implications of that amendment, including the extent to which it, as codified, comports with procedural due …

The School To Deportation Pipeline, Laila L. Hlass

Georgia State University Law Review

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes.

Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Due Process And The Right To Legal Counsel For Unaccompanied Minors, Marielos G. Ramos

Dissertations, Theses, and Capstone Projects

Unaccompanied minors arriving to the United States fleeing violence and seeking protection are apprehended, detained in facilities, and placed in removal proceedings in accordance with U.S. immigration laws. Like adults, these children have to appear in immigration court to fight deportation and must apply for any form of legal relief for which they may be eligible. However, removal proceedings work as a civil and not a criminal process, and immigration laws have established that while noncitizens have the right to an attorney, they are not entitled to legal counsel at the government’s expense. This thesis examines how the denial of …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.

Prevailing Wage Legislation And The Continuing Significance Of Race, David E. Bernstein

Journal of Legislation

No abstract provided.

If It's Tuesday, This Must Be Procreation: Methodology And Subject-Matter In Fourteenth Amendment Pedagogy, William Araiza

Faculty Scholarship

No abstract provided.

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial …

Schuette And Antibalkanization, Samuel Weiss, Donald Kinder

William & Mary Bill of Rights Journal

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects.

Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan …

Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer

William & Mary Bill of Rights Journal

No abstract provided.

The Hard Truth About The Penile Plethysmograph: Gender Disparity And The Untenable Standard In The Fourth Circuit, Lindsay Blumberg

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

No abstract provided.

State Immunity Doctrine: Demoting The Patent System, Charles C. Wong

Maine Law Review

Congress enacted the Patent Remedy Clarification Act (PRCA) in 1992, which authorized patent holders to sue a state for patent infringement in federal court. The PRCA clearly expressed Congress's intent to abrogate Eleventh Amendment state sovereign immunity as required by Atascadero State Hospital v. Scanlon. In 1996, Seminole Tribe v. Florida changed the landscape of congressional power to abrogate state immunity by declaring Congress may do so only if acting pursuant to its powers under section 5 of the Fourteenth Amendment. In his dissent, Justice Stevens forecasted that the Seminole Tribe decision would effectively leave patent holders injured by an …

Can They Do That?: The Limits Of Governmental Power Over Medical Treatment, Paul Jerome Mclaughlin Jr.

Library Faculty Publications

The government’s power over health care is strongest when health care treatments and precautions to protect the public welfare, such as quarantines and vaccinations, are at issue. Governmental power over health care decisions weakens when an individual’s health care decisions are in question. When health care decisions would only affect the individual making them, the government’s power is even less. This article argues that government agents must be cautious in making health care determinations for others and that they should aim to protect an individual’s right to self-determination so long as those choices do not pose a threat to the …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

“Show Me Your Papers”: An Equal Protection Violation Of The Rights Of Latino Men In Trump’S America, Monica Chawla

Touro Law Review

No abstract provided.

State Action That Penalizes Children As Evidence Of A Desire To Harm Politically Unpopular Parents, Catherine E. Smith

Scholarly Articles

This Article is the first to advance the position that when the government takes the extreme step of denying children basic rights and benefits because of their parents, such state action should be recognized not just as evidence of animus against the children, but also as evidence of "a bare desire to harm" their "politically unpopular" parents. Identifying this type of government motivation and calling it what it is--animus toward parents--is just as important as condemning animus against the children themselves. Anti-parent animus that motivates harmful government behavior towards children should be prohibited as an impermissible means to accomplish an …

Did The African-American Electorate Unintentionally Help Elect Donald Trump President?, C. Daniel Chill

Touro Law Review

No abstract provided.