University of Arkansas at Little Rock
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The Ripples of Backlash: Same-Sex Marriage, the Election of 2004, and the Evolution of Constitutional Law
Get PDFThe significance of the events of 2016 for the future development of constitutional law has been widely discussed in both scholarly commentaries and the popular press. After the death of Justice Antonin Scalia early in that year, many progressives looked forward hopefully to the prospect of regaining control of the Supreme Court for the first time in almost fifty years. However, after the Senate refused to consider Barack Obama’s nomination of Merrick Garland to replace Justice Scalia, the surprise victory of Donald Trump in the presidential election led instead to further consolidation of the conservative dominance of the Court. Unlike the election of 2016, the impact of the presidential election of 2004 on the evolution of constitutional doctrine has generally been ignored by commentators. In 2004, apparently due in part to the backlash against the drive to obtain legal recognition for same-sex marriages, Republican George W. Bush won a narrow victory over Democrat John Kerry. Bush soon had the opportunity to fill two vacancies on the Court, and both of his choices have in general brought a conservative perspective to the cases that have come before them. If, by contrast, Kerry had been elected in 2004, he would have almost certainly chosen progressives to replace Justices Sandra Day O’Connor and William Rehnquist, giving progressives a majority on the Court that they would still enjoy today. This article begins by outlining the development of the dispute over same-sex marriage and the apparent relationship between that dispute and the Republican victory in 2004. The article then describes the consequences that that victory has had for the ultimate resolution of a wide variety of constitutional disputes and concludes by discussing the lessons of the election and its aftermath for our understanding of the role that the institution of judicial review has come to play in our political system
Criminal Law—The Call for an Adequate Remedy: The Lack of Deterrence and Judicial Consequences for Prosecutors who Habitually Violate Batson
Get PDFEthical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases
Get PDFOver the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post conviction processes
Four Pathways of Undermining Board of Trustees of the University of Alabama v. Garrett
Get PDFIn Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign immunity; and as such, a plaintiff could not obtain damages against the states or sue the states directly for injunctive relief. Many courts and scholars have read Garrett as sounding the death knell for ADA Title I government employee plaintiffs. This article shows that such fears are misplaced. Indeed, this article offers four pathways around Garrett that show Title I and its requirements are very much alive and well. First, the article shows that traditional civil rights doctrines allow government employees to sue their employers either for damages or injunctive relief regardless of Garrett’s perceived holding. Second, the article shows how subsequent case law developed under Title II of the ADA allows Title I plaintiffs to sue the states for damages where the state conduct violates both Title I and the Constitution. Third, the article explores the ramifications of using Title II of the ADA as employment discrimination legislation instead of Title I and shows that the abrogation outcome is different. Finally, in the fourth pathway of this article, it is shown that because disability discrimination violates valid national policy legislation (passed under the Commerce Clause) any government interest manifested in such a way as to violate that policy-based law is illegitimate for purposes of equal protection rational basis scrutiny. As such, the fourth pathway argues all violations of the ADA amount to violations of the Fourteenth Amendment; and due to the analysis of the second pathway, Garrett should be totally overrule
Civil Rights Law—Questioning McDonnell Douglas? #MeToo.: Resolving the McDonnell Douglas Mixed-Motive Question by Adopting the Sixth Circuit’s Preference for Hearing Victims
Get PDFSection 230 Immunity: How the Trump Era Has Exposed the Current Conflict Between the First Amendment and the Good Samaritan Clause in the Modern Public Square
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