Fourteenth Amendment Commons^™

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.

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

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.

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

The Road To Bostock, John Towers Rice

FIU Law Review

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 …

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

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 …

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 …

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

William & Mary Law Review

No abstract provided.

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 …

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 …

Brief Of Law Professors Richard Aynes Et Al. As Amici Curiae In Support Of Petitioners, Courtney V. Danner, No. 20-361 (U.S. Filed 2020)., Richard Aynes, James Ely, Richard Epstein, Christopher Green, Michael Lawrence, Rebecca Zietlow

Con Law Center Amicus Briefs

The Privileges or Immunities Clause of the Fourteenth Amendment recognized that all United States citizens have fundamental rights derived from their national citizenship. It provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. Amend. XIV, § 1. While the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), may have eroded the scope of the rights the Privileges or Immunities Clause encompassed, the decision undoubtedly expressed the wellknown prevailing view that certain privileges or immunities were protected by the Clause, including the one at issue …

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.