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A Room of One’s Own: Safe Placement for Transgender Youth in Foster Care

Ariel Love

Transgender youth in foster care are not safe. While these youth face the daily danger of physical violence at the hands of others in their foster care group homes, administrators of child welfare services have shown deliberate indifference to these risks, and staff in foster care group homes do not effectively protect the physical safety of transgender youth in their care. Because resource constraints make it impossible to place all transgender youth in LGBTQ-only group homes, we need a solution that will make transgender youth safe in the group homes that already exist. This Note argues that the current New York City foster care system violates the substantive due process safety rights of the transgender youth under its care, and proposes legislation that would presumptively mandate transgender-only bedrooms and bathrooms. Such legislation would provide safe spaces within existing group homes in order to fix current constitutional violations.

Rethinking Review of Foreign Court Jurisdiction in Light of the Hague Judgments Negotiations

Audrey Feldman

The United States is distinct among nations in its constitutionalization of personal jurisdiction. This Note explains the intertwined history of U.S. specific jurisdiction law and the so-called “Hague Judgments Project,” which is facilitating negotiations toward a treaty regulating recognition and enforcement of foreign judgments. This Note argues that the constitutionality of any such proposed treaty will remain uncertain unless U.S. courts clarify existing personal jurisdictional doctrine, particularly regarding the “jurisdictional filters” question: May U.S. courts lawfully recognize and enforce a foreign judgment issued upon a jurisdictional basis that would have been unconstitutional in domestic litigation? This Note answers “yes,” at least when the foreign court’s exercise of personal jurisdiction is compatible with internationally accepted norms. By proposing a cogent response to this question, this Note hopes to facilitate the negotiation and adoption of a future judgments convention.

Eat, Drink, and Marry: Why Baker v. Nelson Should Have No Impact on Same-Sex Marriage Litigation

Andrew Janet

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.

Regulatory Islands

Hannah J. Wiseman

Policy experimentation in the “laboratory of the states” is a frequently cited benefit of our federalist system, but a necessary condition of thoughtful experimentation is often missing. To conduct useful policy experiments, states and other subfederal actors need baseline information: In order to learn from the successes and failures of their neighbors, state actors must understand the laws and regulations that other jurisdictions have enacted. And, despite the seemingly ready availability of legal and regulatory materials in the information age, subfederal officials often lack this understanding. The literature has recognized that states often fail to share policy results, particularly failures, but few legal scholars have explored the lack of information about the substance of policy—an essential foundation for thoughtful experimentation. This information deficit tends to pervade technical policy areas in particular—those that do not follow uniform codes and require expertise to understand, like hydraulic fracturing and health care. In these areas and others, the states may still be laboratories, but in some cases they are laboratories on islands, with no comprehensive, uniform information exchanged among them. This limits the experimental upside of laboratories—informed, efficient, and innovative regulatory approaches. It also expands laboratories’ known downside—the costs to private entities of complying with different standards.

This Article explores the problem of regulatory islands and the public choice, political economy, and resource-based dynamics that create them. It also explores areas in which states have effectively shared regulatory content—often with federal help—and argues that the federal government is in the best position to work with subfederal institutions to produce and synthesize regulatory information. Even if the government does not do the collection and synthesization itself—indeed, mistrust by state actors may prevent this level of involvement—it should fund and partially manage it. Federal involvement is important because when the federal government allows subfederal experimentation in areas of federal concern, it should already be producing much of this information anyway in order to monitor state regulation to ensure that federal goals are being met and ensure that states are not imposing externalities on their neighbors. Increasing the availability of regulatory information will enable more informed experimentation and allow monitoring of policy gaps. In the many areas in which it does not regulate directly, the essential federal government role in modern regulatory experiments is an informational one.

Changed Circumstances and Judicial Review

Maria Ponomarenko

The problem of changed circumstances recurs throughout constitutional law. Statutes often outlive the conditions they were meant to address. A once-reasonable law may come to impose burdens that the legislature never intended and would not now be willing to impose. This Note asks whether courts are ever permitted to step in and declare that, as a result of postenactment changed circumstances, a once-valid law can no longer be constitutionally applied. It argues that the propriety of changed circumstances review depends first on whether the applicable doctrinal test is substantive or motives-based. A substantive test is one that imposes an absolute prohibition on certain categories of legislation, or requires a particular degree of fit between legislative means and ends. A motives-based test asks only whether the enacting legislature intended to further an impermissible objective. This Note demonstrates that where the underlying test is substantive, a reviewing court must at least consider whether circumstances have sufficiently changed since the challenged law’s enactment to justify striking it down. If the test is motives-based, then the court should generally consider only whether the statute is valid based on facts as they existed when it first went into effect.

Prison Health Care after the Affordable Care Act: Envisioning an End to the Policy of Neglect

Evelyn Lia Malave

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, Medicaid-eligible prisoners without enrolling them in the federal benefits program violates the Eighth Amendment.

Due Process, Republicanism, and Direct Democracy

Fred O. Smith, Jr.

Voters in twenty-four states may propose and enact legislation without any involvement from representative branches of government. In recent decades, voters have used popular lawmaking to eliminate groups’ liberty and property interests on topics such as marriage, education, public benefits, and taxes. This Article contends that these deprivations undermine principles historically associated with procedural due process, thus raising serious questions about the constitutionality of initiatives that eliminate groups’ protected interests.

The Fourteenth Amendment’s Due Process Clause embodies principles of fairness that include deliberation, dignity, and equality. The historical salience of these principles is evidenced in colonial charters and state constitutions, the Federalist Papers, antebellum cases interpreting state due process clauses, antebellum cases governing popular lawmaking, and legislative debates leading up to the Fourteenth Amendment’s ratification. These principles should inform the doctrine’s approach to defining procedural fairness.

When deprivation of liberty or property is at stake, the republican system of representative government protects these principles of fairness better than most contemporary plebiscites. Indeed, in a series of vastly understudied cases in the decade leading up to the Fourteenth Amendment’s ratification, at least eight state courts expressed normative doubts about popular lawmaking. While these cases were not premised on due process clauses, these courts nonetheless invoked principles associated with due process and republicanism when questioning popular lawmaking, providing some evidence of the dominant understanding of these terms during that era.

What is more, the requirement of due process of law, at a minimum, prohibits deprivations of liberty or property that violate other constitutional provisions. There is an enduring debate about whether the initiative process violates the non-justiciable Republican Form Clause. This Article seeks in part to inform that debate. And if, in fact, the initiative process violates the nonjusticiable Republican Form Clause, initiatives that deprive individuals of liberty or property violate the justiciable Due Process Clause.

White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation

Osamudia R. James

In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diversity also benefits white students who grow through encounters with minority students, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizenship in an increasingly diverse country.

Recent scholarship has nevertheless thoughtfully examined the negative effect of the “diversity rationale”—the defense of affirmative action policies based on a compelling interest in diversity—on minority identity when that identity is traded on by majority-white institutions seeking to maximize the social and economic benefits that diversity brings. By contrast, little has been said about whether and how the diversity rationale impacts white identity. Consideration of how the diversity rationale influences white identity formation is particularly timely in light of the Supreme Court’s most recent pronouncement on affirmative action in Fisher v. University of Texas at Austin.

This Article begins to fill that gap, ultimately concluding that the diversity rationale reaffirms notions of racial superiority among Whites. Unlike the jurisprudence of seminal civil rights cases, such as Brown v. Board of Education, that rejected old narratives about the legitimacy of subordinating Blacks, the diversity rationale does not promote progressive thinking about race and identity. Rather, it perpetuates an old story—a story about using black and brown bodies for white purposes on white terms, a story about the expendability of those bodies once they are no longer needed. Moreover, by reinforcing the “transparency” and “innocence” of white racial identity, as well as by emphasizing hyperindividualism, the diversity rationale stunts the development of antiracist white identity.

By cultivating white identities grounded in a sense of entitlement and victimhood relative to people of color, the diversity rationale, ironically, perpetuates the subordination of people of color by prompting the elimination of affirmative action programs. It also distracts Whites from addressing the ways in which their own presence at elite institutions of higher education is genuinely undermined, especially in the case of working-class Whites who are consistently underrepresented at such institutions. Given this reality, institutions of higher education committed to diversity must account for the diversity rationale’s effect on Whites through more honest and substantive explanations of the value placed on diversity in admissions.

Defining Gant’s Reach: The Search Incident to Arrest Doctrine After Arizona v. Gant

Anthony M. Ruiz

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.

Anti-Subordination in the Equal Protection Clause: A Case Study

Abigail Nurse

In recent years, many scholars have argued that the U.S. Supreme Court has moved away from following an anti-subordination approach to the Equal Protection Clause of the Fourteenth Amendment and toward an anti-classification approach. In turn, advocates have shied away from anti-subordination arguments in the equal protection cases that are brought before the U.S. Supreme Court. Discussing the briefs and oral argument from Fisher v. University of Texas at Austin as an example, this Note argues that underemphasizing anti-subordination principles is detrimental to equal protection doctrine because these arguments help steer the Court in the right direction. When historical context and ongoing inequitable realities are not incorporated into the doctrine, equal protection moves further from its core mission—ensuring equal treatment under the laws. In addition, the gains for people of color and other marginalized communities will be on tenuous ground without full emphasis on inequality. Advocates must use anti-subordination arguments in order to engage the Court and Justices in the slow process of struggling for a more just world.