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Articles 1 - 30 of 35
Full-Text Articles in Entire DC Network
Grutter V. Bollinger, Clarence Thomas, Affirmative Action And The Treachery Of Originalism: "The Sun Don't Shine Here In This Part Of Town", André Douglas Pond Cummings
Grutter V. Bollinger, Clarence Thomas, Affirmative Action And The Treachery Of Originalism: "The Sun Don't Shine Here In This Part Of Town", André Douglas Pond Cummings
Faculty Scholarship
Careful examination of Justice Clarence Thomas's dissenting opinion in the landmark affirmative action case Grutter v. Bollinger is important for a number of reasons: First, as one of the youngest members of the U.S. Supreme Court, Thomas stands a reasonable chance of still being a member of the court in 25 years, the self imposed implosion date (sunset provision) established by Justice O'Connor's majority opinion. No doubt, Thomas relishes the idea of writing the majority opinion that kills affirmative action and racial preferences for good.
Second, much as Justice Harlan's dissenting opinion in Plessy v. Ferguson was used as a …
Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn
Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn
Faculty Scholarship
Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …
The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard
The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard
Faculty Scholarship
No abstract provided.
Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson
Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson
Faculty Scholarship
No abstract provided.
An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard
An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard
Faculty Scholarship
This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …
Invisible Settlements, Invisible Discrimination, Minna J. Kotkin
Invisible Settlements, Invisible Discrimination, Minna J. Kotkin
Faculty Scholarship
No abstract provided.
Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper
Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper
Faculty Scholarship
"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …
Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs
Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs
Faculty Scholarship
The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarfs disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …
To Kill A Mockingbird (1962): Lawyering In An Unjust Society, Taunya Lovell Banks
To Kill A Mockingbird (1962): Lawyering In An Unjust Society, Taunya Lovell Banks
Faculty Scholarship
No abstract provided.
Legal, Strategic Or Legal Strategy: Deciding To Decide During The Civil War And Reconstruction, Mark A. Graber
Legal, Strategic Or Legal Strategy: Deciding To Decide During The Civil War And Reconstruction, Mark A. Graber
Faculty Scholarship
No abstract provided.
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Faculty Scholarship
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …
Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens
Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens
Faculty Scholarship
In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …
The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan Sturm
The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan Sturm
Faculty Scholarship
The path to workplace'equality has become a difficult one to navigate. No one can safely rely upon the strategies developed in the 1960s and 1970s to integrate workplaces. Employers face legal and political challenges both for failing to diversify their workplaces and for diversity efforts to overcome that failure. Civil rights and women's rights advocates battle to hold on to the litigation victories of the past, even as they acknowledge judicial remedies' shrinking availability and limited efficacy in addressing many aspects of current-day equality. Anti-discrimination regulators contend with inadequate resources to carry out their traditional enforcement activities, as well as …
Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg
Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg
Faculty Scholarship
This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …
Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu
Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu
Faculty Scholarship
The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what …
Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.
Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.
Faculty Scholarship
No abstract provided.
"The Irresistible Force Meets The Immovable Object": When Antidiscrimination Standards And Religious Belief Collide In Aba-Accredited Law Schools, Kristin B. Gerdy
"The Irresistible Force Meets The Immovable Object": When Antidiscrimination Standards And Religious Belief Collide In Aba-Accredited Law Schools, Kristin B. Gerdy
Faculty Scholarship
No abstract provided.
Framing Affirmative Action, Kimberlé W. Crenshaw
Framing Affirmative Action, Kimberlé W. Crenshaw
Faculty Scholarship
With the passage of the Michigan Civil Rights Initiative ("MCRI"), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls "racial preferences" to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination.
On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …
Why Have A Telecommunications Law? Anti-Discrimination Norms In Communications, Tim Wu
Why Have A Telecommunications Law? Anti-Discrimination Norms In Communications, Tim Wu
Faculty Scholarship
This paper describes a vision of what telecommunications laws’ central goals should be in coming decades, and what kind of legal instruments will serve those goals. The telecommunications law, I suggest, has been preoccupied with three projects: allocating rights, managing discrimination, and achieving various social goals, like indecency regulation. This paper argues that in the future the main point of the telecommunications law should be as an anti-discrimination regime, and that the main challenge for regulators will be getting the anti-discrimination rules right.
The view advanced here, while much popularized over the last decade, has deeper roots reaching back to …
Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt
Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt
Faculty Scholarship
Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.
As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …
The Politics Of Same-Sex Marriage Politics, Katherine M. Franke
The Politics Of Same-Sex Marriage Politics, Katherine M. Franke
Faculty Scholarship
In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …
Deconstructing The Maternal Wall: Strategies For Vindicating The Civil Rights Of "Carers" In The Workplace, Joan C. Williams, Elisabeth S. Westfall
Deconstructing The Maternal Wall: Strategies For Vindicating The Civil Rights Of "Carers" In The Workplace, Joan C. Williams, Elisabeth S. Westfall
Faculty Scholarship
No abstract provided.
Keynote Address: Want Gender Equality? Die Childless At Thirty, Joan C. Williams
Keynote Address: Want Gender Equality? Die Childless At Thirty, Joan C. Williams
Faculty Scholarship
No abstract provided.
Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein
Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein
Faculty Scholarship
No abstract provided.
Family Responsibilities Discrimination: What Plaintiffs' Attorneys, Management Attorneys And Employees Need To Know, Joan C. Williams, Cynthia Thomas Calvert
Family Responsibilities Discrimination: What Plaintiffs' Attorneys, Management Attorneys And Employees Need To Know, Joan C. Williams, Cynthia Thomas Calvert
Faculty Scholarship
No abstract provided.
The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens
The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens
Faculty Scholarship
Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Faculty Scholarship
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …
Testamentary Incorrectness: A Review Essay, Paul D. Carrington
Testamentary Incorrectness: A Review Essay, Paul D. Carrington
Faculty Scholarship
Reviewing Samuel P. King & Randall W. Roth, Broken Trust: Greed, Mismanagement, & Political Manipulation at America's Largest Charitable Trust (2006)
Brown Ii: A Case Of Missed Opportunity?, Trina Jones
Brown Ii: A Case Of Missed Opportunity?, Trina Jones
Faculty Scholarship
No abstract provided.