Protection Clause Research Articles

The Sins of Their Fathers: Illegitimacy in Japan and Surrogate Punishment Across Generations

In late 2013, the Japanese Supreme Court voided inheritance rules giving non-marital children half the shares of their marital half-siblings. To discriminate against non-marital children was to punish them for the sins of their parents, it explained, and doing so violated the equal protection clause of the Constitution. In fact, however, the inheritance rules had reflected a simple selection bias – much like the stigma that traditional societies routinely attached to illegitimacy: The societies that survived were those where more children lived to reproductive age; in harsh environments (the norm until a few centuries ago) whether children survived turned on the level of investment adults made in them; men tend not to invest in children whose paternity they do not know; hence, non-marital children had been substantially less likely to survive. In such a world, the stigma and disabilities attached to illegitimacy had helped minimize the number of non-surviving children by channeling sex into stable dyadic relationships. The earlier Japanese inheritance rule had promoted that relational stability by helping women hold men to their promises. In order to induce women to marry them, men routinely promise to invest in the children they bear together. The pre-2013 rule had assured women that if their husbands breached those promises in life, they could at least trust the law to favor their children in his death. On the strength of those promises, they had married and bore children within marriage. After 2013, the courts no longer offered them that assurance. Keywords: inheritance law, non-marital intestate shares, surrogate punishment, marital capital, evolutionary biology

Teen Pregnancy in Charter Schools: Pregnancy Discrimination Challenges Under the Equal Protection Clause and Title IX

Until three years ago, a policy at Delhi Charter School in Louisiana required that any pregnant student be effectively expelled. A pregnant sixteen-year-old student’s expulsion caught the attention of national media in 2012. The ACLU sued and the school quickly rescinded the policy. Although the policy was revoked, the un-adjudicated nature of the resolution leaves teen girls at the school and nationwide without any final court order to protect them against the (re)enactment of similar discriminatory policies. This Article analyzes the Delhi Charter School policy in order to make three related arguments. First, the Court should adopt a rebuttable presumption of state action when the plaintiff is a charter school student alleging the deprivation of a fundamental right. Second, any pregnancy expulsion policy enforced by a charter school violates both the Equal Protection doctrine and Title IX. The Equal Protection claim rests on the remedy left available under Geduldig v. Aiello, which otherwise crippled women’s access to remedies against pregnancy discrimination: if a facially neutral policy evidences discrimination, that policy is unconstitutional under the Equal Protection Clause. Due to the complete lack of rational justification for these policies, this Article argues that all pregnancy expulsion policies de facto evidence invidious discrimination. Third, while Title IX provides another source of remedies, it will not provide meaningful remedies without reform to its implementation. This Article concludes with suggested Title IX reforms.

SEC Administrative Proceedings and Equal Protection “Class of One” Challenges: Evaluating Concerns about SEC Forum Choices Notes

SEC Administrative Proceedings and Equal Protection “Class of One” Challenges: Evaluating Concerns about SEC Forum Choices Notes, 2015 Colum. Bus. L. Rev. 1195 (2015). In the years since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission has made use of its new authority to initiate administrative proceedings against individuals who previously would have faced action in federal court. Several individuals have challenged the SEC’s decision to bring enforcement actions in the administrative forum as a violation of equal protection rights. Their arguments draw on two Supreme Court cases—Village of Willowbrook v. Olech and Engquist v. Oregon Department of Agriculture—that allow “classes of one” to pursue equal protection claims. This Note addresses this recent string of challenges. It aims to show that the current system is open to abuse and can potentially lead to the sort of unfair treatment that the Equal Protection Clause of the Constitution condemns. As such, the system by which the SEC selects a forum is in need of reforms that will alleviate the present concerns. The SEC should implement changes to minimize the burdens individuals face in administrative proceedings and should also provide greater transparency about its rationale for selecting a particular forum.

Public Choice Theory and Occupational Licensing

Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution.That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.

Chiseling Away the Equal Protection Clause on Campus

Chiseling Away the Equal Protection Clause on Campus

Unequal Protection Under the Law

We interrogate the Georgia Supreme Court ruling in the 2002 capital murder trial of Brandon Smith to illustrate how “fair cross section” implementation in Georgia’s legal system was used to create case law that institutionalized discrimination against Hispanic participation in the jury process. By paying scrupulous attention to legal precedents specifically intended to widen inclusion under the equal protection clause, the Justices’ decision put into place one legal standard for Hispanic participation in the jury process and another standard for all other groups. Using critical race theory, we argue that legal precedents based on distorted perceptions of the composition of the Hispanic community in new destination states, common practices of jury forced balancing and sole reliance on decennial census numbers collided to create case law that unintentionally deprives Georgia’s Hispanics of equal protection under the law and may contribute to the disproportionate presence of racialized minorities and Hispanic youth in the criminal justice system.

Equal Law in an Unequal World

The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection clauses. Many scholars, however, have worried that the rule of law requirement that the laws be general — ordinarily interpreted as command of “formal equality” — forbids states from pursuing genuine (“substantive”) equality, particularly between groups divided by lines of social hierarchy. They have similar worries about the Equal Protection clause. In this paper, I aim to put those worries to rest. First, I show that the formal equality interpretation of the rule of law (and of equal protection) is logically incoherent. Then, drawing on a novel account of how to determine the expressive meaning of a law, I show that not only are the rule of law and equal protection compatible with egalitarian justice, but that they positively demand at least a basic level of egalitarian justice, in the form of the command to eliminate social hierarchies embedded in the law. From this, I conclude that the legal ideal of the rule of law contributes to, rather than threatens, critical projects aimed at the elimination of social hierarchy. Political radicals, associated in the law with, inter alia, Marxism, feminism, critical legal studies, critical race studies, and other intellectual movements, have long been skeptical of the legal ideals traditionally associated with liberalism. This paper suggests that they should learn to love the rule of law.

Just, Smart: Civil Rights Protections and Market-Sensitive Vacant Property Strategies

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, tax foreclosure and land banking mechanisms. Part I of this essay explains how treating vacant properties in similar states of disrepair differently because of the condition of the properties around them appears to constitute, at least in the short term, vigilant support for healthy neighborhoods and acquiescence to continuing decline in more distressed areas. Because the distressed areas in many of the cities dealing with long-term vacant property problems are far more likely to have high percentages of African-American residents, the first part examines the scope and evidentiary standards of the relevant civil rights law, including the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. §1982 and the Fair Housing Act. Part II concludes by outlining recommendations for local jurisdictions looking to create a substantively just and legally compliant approach to vacant property remediation that takes advantage of market-sensitive strategies.

Non-Uniform Justice: An Equal Protection Analysis of Veterans Treatment Courtss Exclusionary Qualification Requirements

When a military veteran commits a crime, should he be afforded a separate criminal justice system -- one that allows the veteran to avoid incarceration and possibly conviction altogether -- simply because he is a veteran? In an increasing number of jurisdictions in the United States, the answer to that question is yes. In just six years, the number of Veterans Treatment Courts (VTCs) in the United States has exploded from zero to 170, with more created each year. VTC participants enjoy a more lenient and beneficial system of adjudication of criminal misconduct than non-participants who commit identical crimes in the same jurisdiction. This article dissects the equal protection ramifications of VTCs’ exclusionary qualification requirements. After briefly describing VTCs and other problem-solving courts, the article examines the appropriate level of scrutiny for equal protection-based challenges to exclusion from VTC participation. This assessment includes an extended analysis of whether there is, as some have suggested, an equal protection-based “fundamental right to equal access to the courts,” concluding there is not such a right that applies to issues associated with exclusion from VTCs. The article then turns to an evaluation of the government interests and classifications associated with VTCs, concluding that each of the examined classifications survives rational basis review. The article closes with a brief argument that VTCs illustrate a flaw of fundamental rights jurisprudence: declaring broad fundamental rights based on equal protection can have the unintended consequence of prohibiting non-invidious state efforts the Equal Protection Clause has never been understood to address.

The Substantive Role of Congress Under the Equal Protection Clause

The authors of the Fourteenth Amendment deliberately wrote that no state can deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, but it was important in that era, because it meant that the word “laws” includes both state and federal laws. Therefore Congress has a substantive role under this clause that applies against the states. This meaning undercuts U.S. Supreme Court cases like City of Boerne v. Flores, 521 U.S. 507 (1997) which have largely shut Congress out. The emphasis here is on the original meaning of the Equal Protection Clause, and especially on the public understanding of its text when it was enacted. Had the Equal Protection Clause said “of its laws” rather than “of the laws” then the clause would have been directed only to application or enforcement of laws, rather than their content.

잊혀질 권리와 표현의 자유를 둘러싼 논의 - 언론중재제도의 개선과 관련하여

디지털정보의 저장기술력이 크게 향상되고 무기한 저장이 가능해지면서 인터넷상을 떠돌아다니는 정보들이 개인의 사생활을 침해하고 고통을 주는 사례들이 늘어나고 있다. 이에 본 연구자는 개인의 잊혀질 권리가 언론의 자유와 충돌할 경우 어떻게 해결하는지에 초점을 맞추어 연구하고자 하였다. 이를 위하여 '잊혀질 권리'의 개념과 법적 토대, 잊혀질 권리의 보장과 법적 적용을 위한 방안에 대해 고찰하였다. 법적으로 잊혀질 권리는 헌법 10조에 의해 도출되는 자기결정권을 주로하고 헌법 17조의 프라이버시권을 부로 하여 근거를 들 수 있다. 법 절차상 잊혀질 권리를 보장하기 위해서는 현행법상 언론중재법을 활용하되 신청기간의 제한을 둔 조항을 수정하고, 사실인 과거 기사에 대한 삭제 요구권, 정보제공 동의기간에 제한을 두는 규정 등이 필요하다. With the drastic development of technology for almost eternally saving digital information, cases for giving sufferings to a person who deserves to enjoy privacy have increased. So I study the right to be forgotten focusing on the collision between that right and freedom of expression. I also study the concept of the right to be forgotten and its legal basis for the protection of that right. That right can be protected mainly by the self-decision making right under the Article 10, and secondly the privacy right under the Article 17 of the Constitutional Law. The Press Arbitration Law can be applied to protect the right to be forgotten, but that Law needs the revision of time-limit clause for complain, protection clause for the right to ask to delete factual past article, and the clause of staleness doctrine for the consent of giving personal information.

A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies

Black and Hispanic males in low income communities insist, with statistical studies on their side, that police officers regularly stop and frisk them without the required reasonable suspicion. This is a failure of the Fourth Amendment. The Equal Protection Clause should be a tool that people of color can use to redress their being denied their constitutional rights on racial grounds. The Supreme Court’s equal protection jurisprudence, however, requires that claimants prove intent to discriminate. Known as the Intent Doctrine, this requirement has almost effectively removed from the Constitution, for racial minorities at least, the guarantee of equality under the law. This Article insists that the Supreme Court should permit claimants to prove an equal protection violation either through intent or a standard I call “Plaintiff-Burdened Deliberate Indifference” (PBDI). To show how PBDI will produce transformational change for racial minorities generally, this Article examines how it will operate in one important context: discriminatory stop and frisk tactics. Under PBDI, racial minorities can enter a courtroom armed with an equal protection argument and leave with the stereotypically rogue police department having to change its stop and frisk tactics. In full, this Article’s thesis is that the Equal Protection Clause should force police departments to ensure that their stop and frisk policies, in operation, do not discriminate on the basis of race and the best way to get there is to embrace Plaintiff-Burdened Deliberate Indifference instead of other existing equal protection fixes.

Baker v. Carr: New Light on the Constitutional Guarantee of Republican Government

THE RECENT CASE Of Baker v. Carr' may well be notable for a variety of reasons; certainly for its holding that the validity of Tennesee's legislative apportionment was justiciable when raised under the equal protection clause of the fourteenth amendment.2 But the decision may also have lasting importance for the light it casts on the guarantee clause of article IV, section 4, of the Constitution. That provision declares that the United States shall guarantee to every State in this Union a Republican Form of Government ... . Although the particular issue involved in Baker v. Carr was disposed of solely by reference to allegations under the fourteenth amendment,3 the Supreme Court was afforded an excellent opportunity to comment on the present status of the republican form of government clause. That several of the justices actually felt impelled to do so, and at some length, may give cause for reflection about a constitutional provision long deemed beyond judicial purview. The objectives of this brief Article are limited. First, an attempt will be made to analyze Baker v. Carr as it sheds light on the justiciability of questions raised under the guarantee. The Court's discussion of this question, though extensive, fails to clarify the present state of the law. Second, an effort will be made to demonstrate that, despite the absence of a claim based upon the guarantee clause in Baker, the case is almost certain to encourage a related kind of apportionment suit whose resolution will inevitably require the judiciary to grapple with that provision. Finally, it will be concluded that the Court can successfully entertain this future class of apportionment suits on the merits. In such cases it will face no greater difficulties or more delicate matters than it did in Baker. More specifically, it will be able to construct satisfactory standards for applying the guarantee to these new situations. But in doing so, it should make clear that its decision is grounded on the guarantee. Otherwise, its action will only further obscure the real issue and render its proper analysis and solution more difficult.

Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?

In 1996, Justice Kennedy authored a bold — perhaps even revolutionary — opinion protecting the rights of minorities under the Equal Protection Clause. In 2014, Justice Kennedy authored yet another major equal protection decision, but this time refusing to protect minority interests — despite the undeniable factual and legal parallels between the two cases.To emphasize the factual parallels and yet divergent outcomes in these cases, this essay presents an imagined opinion that runs the facts of Romer through the reasoning of Scheutte. The end product is virtually seamless.

Justice Sotomayor's Undemocratic Dissent in Schuette v. Coalition to Defend Affirmative Action

There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, at the constitutional level where we work, 90 percent of any decision is emotional. The remaining 10 percent is [t]he rational part … [that] supplies the reasons for supporting our predilections. It is time for this type of judging to end. Good intentions do not make good decisions, just like good results do not necessarily lead to good outcomes. The best outcomes are those that result from fair — and constitutional — processes. After all, [i]t is a sordid business, this divvying us up by race. If we keep dividing, the country will never be united.

Beyond Bobby Jo Clary: The Unavailability of Same-Sex Marital Privileges Infringes the Rights of So Many More Than Criminal Defendants

Confusion over the applicability of marital privileges invoked by same-sex spouses from one jurisdiction to the next has a chilling effect on the full and frank communication marital privileges seek to encourage. With the growing number of jurisdictions recognizing same-sex marriages in the wake of United States v. Windsor, conflicts between state marriage laws embracing marriage equality and state versions of the Defense of Marriage Act (“mini-DOMAs”) will similarly increase. Section 2 of the Defense of Marriage Act (“DOMA”) permits a state with a mini-DOMA to invalidate a marriage validly celebrated in another. So, too, may a state with a mini-DOMA refuse to recognize a marital privilege otherwise available to opposite-sex couples to protect a same-sex marriage celebrated in another state or a confidential communication held in another state. A conversation in New York, which would recognize a valid marriage between same-sex partners and thus apply any available marital privilege, may never be had for fear that future litigation in Texas, which maintains a mini-DOMA, may force one spouse to reveal those confidential communications while testifying adversely to her spouse.To provide the certainty needed to fulfill the purpose of the marital privileges, federal court intervention is required to strike section 2 of DOMA and all mini-DOMAs as unconstitutional violations of the Equal Protection Clause of the Fifth and Fourteenth Amendments, as well as the Full Faith and Credit Clause of the Fourteenth Amendment. With reasonable certainty that their marriages will be deemed valid in all jurisdictions, same-sex couples can take comfort in knowing they will not be forced to testify adversely to one another or reveal confidential communications they shared. Same-sex marriages, like their opposite-sex counterparts, will be strengthened by the benefits such privileges afford.

Rule of law: Sharia panic and the US Constitution in the House of Representatives

In spring of 2011, Peter King (R-NY) convened a hearing titled ‘The Extent of Radicalization among American Muslims’ in the US House of Representatives. Democratic participants critiqued the hearings and contextualized the proceedings within the long history of institutionalized racism in the USA. They argued that the hearings were a threat to the Constitution itself, a violation of the Fourteenth Amendment's equal protection clause and the First Amendment's guarantee of freedom of religion. Republican participants shared concerns about threats to the Constitution but suggested that the hearings were part of a strategy to combat this threat. Numerous Republican participants identified forms of Islamic law, or sharia law, as the primary threat to the integrity of the rule of law (ROL). Despite opposing positions, all actors agreed that the ‘ROL’ is that which will save the nation from threats posed from both outside and inside the nation and, as such, it is the ROL itself that must be protected. In this sense, the ‘ROL’ ensured by the Constitution inadvertently became the primary object of the hearings. In this essay, we bring analytical approaches from performance studies and anthropology to argue that the hearings impel a re-examination of the concept of ‘ROL’ itself. Rather than simply addressing the legislative effects of the hearings, we are interested in what they reveal about the performative and cultural dimensions of the law and the lawmaking process. While critics of the hearings derisively referred to them as ‘political theater’, we suggest that it is the nature of the King Hearings as staged public spectacle that imbue them with a politically performative power. We also identify the specific effects of sharia panic in contemporary US American political and legal discourse.

Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Legal Pluralism and Problems of Legal Application

In order to qualify a situation as a case of normative pluralism, it is essential that within the same social environment, rules of different origins are operative, i.e., they are valid and applied, so that the person in question can choose the norms that guide their own behaviour. This is the phenomenon which Boaventura de Sousa Santos defined as 'interlegality.'The author does not propose a pluralist conception of applying law in a multicultural society, but defending a form of jurisdictional monism that is motivated by practical-normative reasons in accordance with the principle of non-discrimination. The claim, in other words, is that we must treat those who are different from ourselves with 'equal consideration and respect.' People belonging to different cultures from our own culture may de facto decide within their own group to let their own legal conflicts be dealt with by community 'jurisdictions.' At the same time, however, the democratic-constitutional legal system must guarantee the administration of justice in the 'last resort,' in accordance with the principle set out in the ‘equal protection clause’ (XIV am., sect. 1, US Const.) prescribing that the State cannot 'deny to any person within its jurisdiction the equal protection of the laws.' It is clear that very often the person asking for such protection will be the most vulnerable person within traditional communities: women.

'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person... Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses. Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries. Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims. They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself. We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole. First, we consider the meaning of shame and humiliation. Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases. Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law. We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.