The New Impartial Jury Mandate,
2019
University of California, Berkeley, School of Law
The New Impartial Jury Mandate, Richard Lorren Jolly
Michigan Law Review
Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …
What Corporate Veil?,
2019
Cornell Law School
What Corporate Veil?, Joshua C. Macey
Michigan Law Review
Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.
Solitary Confinement Of Juvenile Offenders And Pre-Trial Detainees,
2019
Touro Law Center
Solitary Confinement Of Juvenile Offenders And Pre-Trial Detainees, Nicole Johnson
Touro Law Review
No abstract provided.
Constructing The Original Scope Of Constitutional Rights,
2019
University of Georgia
Constructing The Original Scope Of Constitutional Rights, Nathan Chapman
Scholarly Works
In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …
The (Limited) Constitutional Right To Compete In An Occupation,
2019
Vanderbilt University Law School
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …
Some Kind Of Hearing Officer,
2019
University of Georgia School of Law
Some Kind Of Hearing Officer, Kent H. Barnett
Scholarly Works
In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process,
2019
University of Georgia School of Law
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook
Scholarly Works
In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …
Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island,
2019
J.D. Candidate 2020, Roger Williams University School of Law
Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island, James M. Kovach
Roger Williams University Law Review
No abstract provided.
Purchasing Health? The Promise And Limits Of Public Health Insurance,
2019
Columbia Law School
Purchasing Health? The Promise And Limits Of Public Health Insurance, Kristen Underhill
Faculty Scholarship
The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and people in need of long-term care. Since 2014, the pendulum of Medicaid policy has swung from an unprecedented expansion of coverage under the Affordable Care Act (ACA), toward more recent federal regulations and state policy innovations that are instead predicted to limit uptake of benefits. …
Conversion Therapy: A Brief Reflection On The History Of The Practice And Contemporary Regulatory Efforts,
2019
Touro Law Center
Conversion Therapy: A Brief Reflection On The History Of The Practice And Contemporary Regulatory Efforts, Tiffany C. Graham
Scholarly Works
This brief symposium essay offers a broad-stroke sketch of the history of conversion therapy, its current status as a locus of regulation, and some preliminary questions about the direction the law might take to protect individuals who elect or are forcibly subjected to the practice.
Let All Voters Vote: Independents And The Expansion Of Voting Rights In The United States,
2019
Touro University Jacob D. Fuchsberg Law Center
Let All Voters Vote: Independents And The Expansion Of Voting Rights In The United States, Jeremy Gruber, Michael A. Hardy, Harry Kresky
Touro Law Review
No abstract provided.
Arlington Heights Won In The Supreme Court But The Fair Housing Act’S Goal Of Promoting Racial Integration Saved The Low-Income Housing,
2019
Touro University Jacob D. Fuchsberg Law Center
Arlington Heights Won In The Supreme Court But The Fair Housing Act’S Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose
Touro Law Review
No abstract provided.
How To Get Away With Murder: The “Gay Panic” Defense,
2019
Touro Law Center
How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo
Touro Law Review
No abstract provided.
The Difference Narrows: A Reply To Kurt Lash,
2019
Georgetown University Law Center
The Difference Narrows: A Reply To Kurt Lash, Randy E. Barnett, Evan Bernick
Georgetown Law Faculty Publications and Other Works
No abstract provided.
The Privileges Or Immunities Clause Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment,
2019
Georgetown University Law Center
The Privileges Or Immunities Clause Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan Bernick
Georgetown Law Faculty Publications and Other Works
The Privileges or Immunities Clause of the Fourteenth Amendment was virtually eliminated by the Supreme Court in three cases: The Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank. Today, most constitutional scholars agree that this was a terrible mistake, the effects of which continue to reverberate through our constitutional law. But, as evidenced by the Court’s decision in McDonald v. City of Chicago, both the “left” and “right” sides of the Court are reluctant to open the “Pandora’s Box” of uncertainty created by the phrase “privileges or immunities of citizens of the United States.” …
Dying Constitutionalism And The Fourteenth Amendment,
2019
Duke Law School
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Faculty Scholarship
The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection,
2019
University of California Los Angeles School of Law
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
The Structural Underpinnings Of Access To Justice: Building A Solid Pro Bono Infrastructure,
2019
Mitchell Hamline School of Law
The Structural Underpinnings Of Access To Justice: Building A Solid Pro Bono Infrastructure, Latonia Haney Keith
Mitchell Hamline Law Review
No abstract provided.
From Poverty To Personhood: Gideon Unchained,
2019
Mitchell Hamline School of Law
From Poverty To Personhood: Gideon Unchained, Ken Strutin
Mitchell Hamline Law Review
No abstract provided.
Brief Of Amici Curiae Law Professors In Support Of Respondent Affluere Investments, Inc., Tenn. Wine & Spirits Retailers Ass'n V. Blair, No. 18-96 (U.S. Dec. 20, 2018).,
2018
University of Akron School of Law
Brief Of Amici Curiae Law Professors In Support Of Respondent Affluere Investments, Inc., Tenn. Wine & Spirits Retailers Ass'n V. Blair, No. 18-96 (U.S. Dec. 20, 2018)., Richard L. Aynes, James W. Ely Jr., Richard A. Epstein, Christopher R. Green, Ilya Somin, Rebecca E. Zietlow
Con Law Center Amicus Briefs
This case concerns whether a State may forbid United States citizens from plying a lawful trade based purely on the duration of their in-state residency. Tennessee law permits the retail sale of alcohol by anyone holding a state-issued retailer’s license. See Tenn. Code Ann. § 57-3-204. But the law restricts both the grant and renewal of such licenses based on the duration of an applicant’s Tennessee residency. See id. §§ 57-3-204(b)(2)(A), (3)(A)–(B), (3)(D). The Sixth Circuit held that those restrictions violate the negative (also known as the dormant) Commerce Clause and severed them from the rest of the statute. See …
