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Volume 17 - Issue 1


Removing Police From Schools Using State Law Heightened Scrutiny

Payne-Tsoupros, Christina | October 1, 2021

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools. Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to effect the abolition of police in schools, focusing on solutions to school policing that are consistent with DisCrit principles. This Article proposes using the state law constitutional right to education as that mechanism. Every state, in its constitution, provides for some form of a right to education. While an imperfect solution, this Article considers the state constitutional right to education as an approach to remove police from schools with broader ramifications for dismantling the school-to-prison pipeline.

Comparative Limitations on Abortions: The United States Supreme Court v. The European Court of Human Rights

Padmanabhan, Sunaya | October 1, 2021

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion. This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the procedure exist. It will explore how anti-abortion states utilize weaknesses in the Supreme Court’s undue burden framework to impose obstacles on a woman’s right to an abortion. In the European context, it will review how anti-abortion countries take advantage of the discretion, granted by the European Court of Human Rights, to determine the legality of abortion and criminalize abortion care outside of particular circumstances provided by law, creating a chilling effect that substantively limits a woman’s access to abortion. This Note proposes that the Supreme Court should further develop the “effect” piece of its undue burden test such that states cannot enact laws which have the effect of preventing women from terminating their pregnancies. It also recommends that the European Court of Human Rights alter its balancing framework to reduce member-state discretion in the evaluation of whether a law violates a woman’s right to privacy.

With Unanimity and Justice for All: The Case for Retroactive Application of the Unanimous Jury Verdict Requirement

Kurland, Kara | October 1, 2021

Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury verdict requirement, it was not a “bedrock element of criminal procedure.” Therefore, like every other new rule of criminal procedure to date, this rule did not apply retroactively. After acknowledging that the Teague test had never found a new rule of criminal procedure to meet its demanding standard, Edwards then took the drastic step of eliminating the bedrock exception to Teague altogether. This Note argues that the Edwards Court was wrong in its analysis and conclusion to deny hundreds of prisoners relief based on non-unanimous jury verdicts that were obtained prior to Ramos. Though the Supreme Court has denied relief to those prisoners, this Note explains that state courts still have the ability to retroactively apply Ramos and that justice requires state courts to adjudicate non-unanimous jury verdict claims accordingly.

City of Los Angeles v. Lyons: How Supreme Court Jurisprudence of the Past Puts a Chokehold on Constitutional Rights in the Present

Douglas, Peter C. | October 1, 2021

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger Court’s Lyons decision from a variety of valuable vantage points, this Note takes a different approach, considering the extent to which Lyons was the product not of a single Court, but of generations of jurists. Through an extensive historical case study, this Note hopes to provide a new perspective on why the Lyons decision was wrong and why the majority opinion failed to support its holding. With the Lyons ancestry laid bare, this Note then uses that historical understanding to advocate for greater transparency in federal jurisprudence. Specifically, this Note argues that decisions like Lyons are, in part, made possible by obfuscatory jurisprudential approaches to “saying what the law is.” Regardless of the precise nature of the federal judiciary’s systemic problems, certain jurisprudential methodologies tend to reinforce and preserve those problems. To begin addressing systemic issues in the federal judiciary, we must embrace some modest, but powerful, adjustments to how jurists “say what the law is.”