A Counterfactual History of Transgender Students' Rights
Dean Kristi L. Bowman | Vol. 20 | Online | January 2018
Disputes about transgender students’ rights are growing in number and prominence. In spring 2017, when the Trump Administration rescinded the Obama Administration’s guidance that had protected transgender students, the Supreme Court cancelled oral argument in Gloucester County v. G.G., the case it was scheduled to hear on this topic, vacated the lower court’s opinion, and remanded the case. But what if that hadn’t happened? Specifically, what if Hillary Clinton had been elected president, the guidance had remained in place, and the Court had heard oral argument as originally scheduled in Gloucester County? This piece employs the approach of counterfactual history, presenting what I believe would have been the Court’s decision in Gloucester County in an alternate reality: The Supreme Court would have sided with student Gavin Grimm on administrative law grounds with Justice Kennedy, the swing vote, giving the liberal justices their fifth vote. Continuing in this parallel universe, I take what surely would have been an initial reaction by transgender advocates—that the decision was “the Brown v. Board of transgender rights”—and test the limits of that statement. Finally, I return to the present day, reflecting on what we can learn from the counterfactual history, considering how that knowledge can inform our understanding of what happened and why, discussing the current and emerging litigation in this area, and analyzing the importance of policy choices at the state and local level.
Views Among College Students Regarding Freedom of Expression: An Analysis in Light of Key Supreme Court Decisions
Professor John Villasenor | Vol. 20 | Online | January 2018
This Essay presents and analyzes results from an August 2017 survey of 1,500 current students at U.S. four-year colleges and universities regarding freedom of expression under the First Amendment. The survey was designed to enable an examination of those views in light of key Supreme Court precedents on issues including “true threats,” incitements to imminent lawless action, and defamation. The results indicate that the common stereotype—that students have an overly narrow view of First Amendment freedoms—while correct in some respects, is also an oversimplification. A more accurate characterization is that many students hold views on freedom of expression that are inconsistent with the scope of the First Amendment—overly narrow in relation to expression that they deem offensive, but overly broad in relation to defamation and incitements to imminent lawless action.
Remedial Reading: Evaluating Federal Courts' Application of the Prejudice Standard in Capital Sentences from "Weighing" and "Non-Weighing" States
Sarah Gerwig-Moore | Vol. 20 | Online | January 2018
On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This is not uncommon. What stood out, however, in the preparation of his petition for certiorari in the United States Supreme Court, was certain terminology in the opinion that seemed to indicate it had re-weighed evidence offered in aggravation and mitigation of his death sentence. This was disconcerting, since Georgia is a “non-weighing” state. This error formed the basis for Mr. Bishop’s final legal challenge—which was ultimately unsuccessful, but which attracted national interest. This Article describes the heart of that challenge and explains why the appropriate legal tests matter in such cases: life is at stake.
Resolving the Reasonable Belief and Probable Cause Circuit Split Stemming from Payton and Steagald
Steve Ragatzki | Vol. 20 | Online | December 2017
In Payton v. New York, the Supreme Court held that police, without a search warrant, may enter a suspect's home to execute an arrest warrant. Later in Steagald v. United States, the Supreme Court held that police may not execute an arrest warrant in a third party's home unless the police also had a search warrant for that home. The resulting ambiguity--how certain must police be that a suspect resides in a home--has led to a circuit split among federal courts of appeal. Some courts require both an arrest warrant and a search warrant. Other courts require an arrest warrant and a "reasonable belief" that the suspect resides in the home. This article examines arguments for and against each standard and concludes that the Fourth Amendment requires both an arrest warrant and a search warrant.
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