Law and Society Commons^™

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam

Dickinson Law Review (2017-Present)

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though …

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

The Pro Bono Collaborative Project Spotlight: Increasing Access To Justice Just Got A Little Easier In Rhode Island 10-05-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Newsroom: Order Violates Roger Williams' Principles 01-30-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Trump's Order Violates Bedrock Principles Of Roger Williams And Ri 01-30-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

Following Finality: Why Capital Punishment Is Collapsing Under Its Own Weight, Corinna Barrett Lain

Law Faculty Publications

Death is different, the adage goes - different in its severity and different in its finality. Death, in its finality, is more than just a punishment. Death is the end of our existence as we know it. It is final in an existential way.

Because death is final in an existential way, the Supreme Court has held that special care is due when the penalty is imposed. We need to get it right. My claim in this chapter is that the constitutional regulation designed to implement that care has led to a series of cascading effects that threaten the …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

University of Richmond Law Review

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

Is Love A Battlefield? The New Politics Of Marriage Equality In The Aging War On Terror, Jackie Givelber

Scripps Senior Theses

When Donald Trump took the stage as the Republican presidential nominee at the Republican National Convention in July 2016, he made a historical appeal to LGBTQ Americans: to the boisterous applause of a Republican audience, he promised "to protect LGBTQ citizens from the violence and oppression of a hateful foreign ideology." Utilizing this historical moment as an indicator of shifting political views around LGBTQ rights in the Republican Party and the US nation-state as a whole, this paper links contemporary iterations of the War on Terror to the legalization of same-sex marriage in June 2015. Connecting same-sex marriage to the …

From Law Reform To Lived Justice: Marriage Equality, Personal Praxis, And Queer Normativity In The United States, Francisco Valdes

Articles

No abstract provided.

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Slides: Learning From Drought Crises In Federations: Principles, Indicators And Lessons Learned, Lucia De Stefano, Dustin Garrick, Daniel Connell

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenters:

Lucia De Stefano, Complutense Universidad de Madrid

Dustin Garrick, McMaster University/University of Oxford

Daniel Connell, Australia National University

27 slides

Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Politics At Work After Citizens United, Ruben J. Garcia

Loyola of Los Angeles Law Review

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the “one percent” in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Akron Law Review

During a five day period in June, 1992, every Justice on the United States Supreme Court joined one or the other of two opinions that denied the objectivity of values—either Justice Kennedy’s majority opinion in Lee v. Weisman or Justice Scalia’s dissent in Planned Parenthood v. Casey. Both of these opinions expressed the view that normative judgments are merely human constructions. This moment represents symbolically the death of values in American law. The arrival of nihilism at the heart of American law is a world-changing event for law that must be acknowledged.

The death of values was announced by …

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

    This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

    Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau

Fordham Law Review

    By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …

Perspectives On Marriage Equality And The Supreme Court, The Editors

Fordham Law Review

    On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …

Hail Marriage And Farewell, Ethan J. Leib

Fordham Law Review

    My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …

Strategic Behavior And Variation In The Supreme Court’S Caseload Over Time, Kenneth W. Moffett, Forrest Maltzman, Karen Miranda, Charles R. Shipan

SIUE Faculty Research, Scholarship, and Creative Activity

Over the past sixty years, the size of the Supreme Court’s docket has varied tremendously, growing at some points in time and shrinking at others. What accounts for this variation in the size of the docket? We focus on two key strategic factors – the predictability of outcomes within the Court, and whether justices consider the potential actions of other political institutions – and assess whether these factors help to explain the variation in docket size over time. We discover that uncertainty and institutional constraints prevent the Court from choosing cases with complete freedom, even after accounting for other potential …