Constitutional Law Commons^™

Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons, Michael E. Solimine

Faculty Articles and Other Publications

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

How American Society And Law Continue To Prevent People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

Rethinking The Fundamentals: Applying The Evolving Standards Of Decency Test To The Court’S Evaluation Of Fundamental Rights., Nick Wolfram

UC Law Constitutional Quarterly

In 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood

SLU Law Journal Online

This article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected …

The Future Of “History And Tradition”: The First Amendment Implication Of Bruen, The Floersheimer Center For Constitutional Democracy

Flyers 2023-2024

No abstract provided.

Judicial Libraries As Predictors For Effective Administration Of Justice In Nigeria, Emmanuel Owushi

Library Philosophy and Practice (e-journal)

The study examined judicial libraries as predictors for effective administration of justice in Nigeria. The population involved all legal practitioners and legal educators in Nigeria. 4000 respondents were sampled. Due to unavailability of the population at the time of the study, the adopted convenience sampling technique to sample 4000 respondents across legal professional bodies in Nigeria. A structured questionnaire titled ‘Use of Judicial Library and Administration of Justice Scale’ was used for data collection. The questionnaire was structured with the 4-point Likert scale response style, designed on Google form and distributed to the respondents via various social media platforms. A …

“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry

Cleveland State Law Review

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …

Filling The Potholes Of Pretextual Traffic Stops: A Better Road Forward For Ohio, Jordan Weeks

Cleveland State Law Review

The Fourth Amendment was one of the driving forces behind the United States Revolution. This Amendment generally protects individuals against “unreasonable” searches and seizures. But what does “reasonable” mean in the context of a traffic stop?

In 1996, the U.S. Supreme Court in Whren v. United States tried answering this question. In so doing, the Court determined that pretextual traffic stops are “reasonable.” Pretextual traffic stops occur where an officer stops a vehicle and cites a lawful reason for the stop, yet the underlying reason is unlawful. The Whren Court determined that an officer’s intent is completely irrelevant to whether …

Assessing The Future Of “Offended Observer” Standing In Establishment Clause Cases, Larry J. Obhof

Cleveland State Law Review

This Article looks at the anomaly of “offended observer” standing in Establishment Clause challenges. It calls for greater consistency in the courts’ application of constitutional standing requirements.

Under Article III, Plaintiffs seeking to raise claims in federal court must allege a concrete and particularized injury in fact in order to support federal jurisdiction. Likewise, plaintiffs seeking to challenge a government policy must allege a unique injury that is separate from the interests of the public at large. The notable exception is where plaintiffs claim personal offense at alleged government entanglement in religion. These “offended observers” are frequently given access to …

Symposium: Gender, Health And The Constitution: The Misalignment Of Medical Capacity And Legal Competence For Perinatal People With Serious Mental Illness, Melisa Olgun, Carlos Larrauri, Sonja Castaneda-Cudney, Elyn Saks

ConLawNOW

This Article evaluates the misalignment of medical capacity and legal competence for perinatal people with serious medical illnesses (SMI), an issue that has had limited discourse in legal academia. It delineates the contours of these concepts, dissecting their theoretical underpinnings and practical applications. While medical capacity is often considered an iterative, context-specific determination, legal competence is typically treated as a rigid, binary legal categorization. It then illustrates how the disparate scope and aims of capacity and competence lead to a precarious misalignment for people with fluctuating mental states, particularly perinatal people with SMI. The Article proposes solutions to harmonize the …

Symposium: Gender, Health, And The Constitution: Gender-Affirming Care And Children's Liberty, Dara E. Purvis

ConLawNOW

This essay addresses the wave of statutes banning gender-affirming care for transgender and gender-diverse minors passed in states across the country over the last three years. It argues that an underdeveloped understanding of children’s rights makes it more difficult to explain how harmful gender-affirming care bans are and to challenge them in court. After explaining the nature of gender-affirming care, the essay discusses the grounds underlying existing challenges to gender-affirming care bans, highlighting the emphasis on equal protection and parental rights. It concludes by reframing the children’s liberty argument and exploring what the broader consequences of courts recognizing such a …

Beyond The Ban: One Major Challenge Facing The Ftc Non-Compete Rule, Brendan Mohan

ConLawNOW

This article analyzes the implications of President Biden's Executive Order 14036 and the subsequent notice of proposed rulemaking (NPRM) by the Federal Trade Commission (FTC) to ban non-compete agreements. It examines the legal basis for the NPRM, including Sections 5 and 6(g) of the FTC Act, and anticipates potential challenges to its implementation, most notably under the major questions doctrine. It explores the broader ramifications of the NPRM for labor and employment law, emphasizing its potential to reshape administrative agency regulation and the regulatory landscape. It concludes by analyzing the rule under the major questions doctrine and the possible outcomes …

Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken

ConLawNOW

This essay explores the dehumanizing potential of metaphors used to describe women’s reproductive biology through literary analysis of Margaret Atwood’s canonical feminist novel The Handmaid’s Tale (1985). Attending to the rhetoric that both justifies and contests ritualized rape and forced surrogacy in Atwood’s novel, this essay begins by interrogating the ubiquitous cultural and biomedical metaphors that reduce women and pregnant people to their bodies’ reproductive potential. The first section draws from scholarship in medical anthropology, medical rhetoric, and literary studies to illuminate how gendered stereotypes pervade biomedical, cultural, and legal representations of reproduction, reifying the conflation of women and people …

Symposium: Gender, Health, And The Constitution: Reforming Clinical Trial Pregnancy Exclusions, Jennifer D. Oliva

ConLawNOW

This essay argues the exclusion of pregnant people from drug and biologic clinical trials is paternalistic, unjust, and counterproductive because the failure to include pregnant people in experimental trials can enhance risks to maternal and fetal health. Bioethicists, legal scholars, and other researchers have pleaded for reform in this context for decades. This article describes pregnancy medical drug use and the genesis and evolution of federal regulations and policies that operate to exclude pregnant people from clinical trials. It argues that the implementation of legal reforms that ensure the inclusion of pregnant people in clinical trials is imperative given Covid, …

Symposium; Gender, Health, And The Constitution: Hysteria Redux: Gaslighting In The Age Of Covid, Jane Campbell Moriarty

ConLawNOW

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers …

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner

Brooklyn Law Review

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my …