Educational Environments And The Federal Right To Education In The Wake Of Parkland, 2019 Northern Illinois University College of Law
Educational Environments And The Federal Right To Education In The Wake Of Parkland, Maybell Romero
University of Miami Law Review
A vociferous debate rages over the measures that should be taken to prevent high-profile incidents of mass school shootings like that at Marjory Stoneman Douglas High School in Florida on February 14, 2018, or, more recently, that at Santa Fe High School in Texas on May 18, 2018. Heightened security and surveillance measures, such as metal detectors and closed-circuit television (“CCTV”) monitoring, have been proposed in a variety of school districts. These measures, however, have been shown to have only a deleterious effect on learning outcomes and the relationships between students and school faculty, and they may even be hazardous ...
Racial Indirection, 2019 Yale Law School
Racial Indirection, Yuvraj Joshi
Hour Late On Your Bail, Spend The Weekend In Jail: Substantive Due Process And Pretrial Detention, 2019 Boston College Law School
Hour Late On Your Bail, Spend The Weekend In Jail: Substantive Due Process And Pretrial Detention, Coleman Gay
Boston College Law Review
On March 9, 2018, the United States Court of Appeals for the Tenth Circuit held, in Dawson v. Board of County Commissioners of Jefferson County, that the right to be free from pretrial detention absent a determination of guilt is not a fundamental right. Rather, the court held, it is a non-fundamental liberty interest. In so doing, the Tenth Circuit split with the United States Court of Appeals for the Ninth Circuit, which had held that the right is fundamental. The Tenth Circuit also diverged from the Ninth Circuit in its application of a test to determine whether the government ...
No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, 2019 College of William & Mary Law School
No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick
William & Mary Law Review
“Due process of law” is arguably the most controversial and frequently litigated phrase in the Constitution of the United States. Although the dominant originalist view has long been that the Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees that do not constrain the content or “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there is a weighty case for some form of substantive due process. In this Article, we review and critique those findings, employing our theory of good-faith originalist interpretation ...
There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, 2019 College of William & Mary Law School
There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, Daniel J. Galvin Jr.
William & Mary Journal of Race, Gender, and Social Justice
In this Article, I argue that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and, therefore, should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. After decades of using the fundamental rights analysis to aid lesbian, gay, and bisexual individuals in their pursuit of equality, addressing the fundamental right to marry and the fundamental right to privacy, the Supreme Court must address the elephant in the courtroom: that sexual orientation meets all of the factors set by the Court in equal protection cases for suspect classification.
Gays, lesbians, and bisexual individuals (LGBs) meet the ...
Minneapolis Municipal Construction Contracts: Awarding Methodologies And Affirmative Action, 2019 University of Minnesota Law School
Minneapolis Municipal Construction Contracts: Awarding Methodologies And Affirmative Action
Law & Inequality: A Journal of Theory and Practice
No abstract provided.
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.
The (Limited) Constitutional Right To Compete In An Occupation, 2019 College of William & Mary Law School
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
William & Mary Law Review
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 ...
At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, 2019 The Catholic University of America, Columbus School of Law
At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar
Catholic University Law Review
Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But there too ...
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, 2019 Louisiana State University Law Center
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
No abstract provided.
Forgotten Cases: Worthen V. Thomas, 2019 Cleveland-Marshall College of Law
Forgotten Cases: Worthen V. Thomas, David F. Forte
David F. Forte
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 after ...
The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, 2019 University of San Diego
The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen
San Diego Law Review
Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each ...
Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, 2019 University of San Diego
Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti
San Diego Law Review
The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.
Table Of Contents, 2019 Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, 2019 Chicago-Kent College of Law
Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben
Chicago-Kent Law Review
Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.
This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right ...
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, 2019 Chicago-Kent College of Law
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney
Chicago-Kent Law Review
At a press conference held in Trump Tower New York City on June 16, 2015, Donald Trump announced his candidacy for President of the United States by promising to expand the border wall along the Southern United States. President Trump has insisted that his only reasons behind completely separating the United States from Mexico are to curtail illegal immigration and curb drug cartel activity, but many argue that his statements indicate a much more sinister motive based in racial discrimination. The public use requirement of the Fifth Amendment Takings Clause allows the federal government to take private land for the ...
The Fundamental Right To Education, 2019 University of South Carolina School of Law
The Fundamental Right To Education, Derek W. Black
Notre Dame Law Review
New litigation has revived one of the most important questions of constitutional law: Is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.
To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our Constitution protects education, particularly since the word education does not even appear in the Constitution. Second, the right to education implicates complex questions regarding its scope ...
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 ...
Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, 2019 Indiana University Maurer School of Law
Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle
Articles by Maurer Faculty
In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of ...
The Supreme Court, Due Process And State Income Taxation Of Trusts, 2019 Elisabeth Haub School of Law at Pace University
The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon
Pace Law Faculty Publications
What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of ...