Digital Commons Network^™

Section 2 As An “Adequate Substitute” For Section 5: Proposing An “Effects-Only” Test As An Amendment To Section 2 Of The Voting Rights Act Of 1965, Bernice M. Bird

Bernice M. Bird

As the U.S. Supreme Court shall finally determine whether Section 5 of the Voting Rights Act of 1965 is unconstitutional next year in Shelby County, Ala. v. Holder, most suppressed minority voters may be left with only Section 2 as a remedy for voting discrimination challenges. However, the federal courts have consistently interpreted Section 2's "results" or "intent" test contrary to the legislative intent of Section 2 in increasing the burden for plaintiffs to demonstrate discriminatory intent of racial bias in enacting election laws. Thus, Section 2 currently serves as an inadequate substitute for redressing voting discrimination should the Supreme …

Planting People, Growing Justice: The Three Pillars Of New Social Justice Lawyering, Artika Renee Tyner

Artika Renee Tyner

This article explores the tools that lawyers can employ to build and sustain social change. These tools add a new dimension to scholarly research in the field by focusing on the role of lawyers as leaders as they seek to influence processes of social change, transform systems, and empower others to lead. This Article draws upon principles of social justice lawyering, which acknowledge that lawyers have a fiduciary duty to create equal justice under the law. It combines these frameworks with leadership theoretical perspectives since there is a dearth of research available on the role of lawyers as leaders in …

A Dissolution Of American Values: The Material Support Law, Unchecked Executive Power, And Their Effect On American Muslim Charitable Donations, Omar Abdelghany

Omar Abdelghany

The main topic of this comment will be the chilling effect that the material support provisions and unchecked executive power has had on American Muslim charitable giving. The comment will be divided into four parts. The first part will discuss the relevant statutes and executive orders that prosecutors and the executive branch use to unjustly shut down American Muslim charities. This part will also discuss the cases involving American Muslim charitable organizations and donors. These cases are divided into five categories: cases where the U.S. government filed terrorism-related charges against American Muslim charities, cases where the government filed non-terrorism related …

Playing The Race Card: White Americans’ Sense Of Victimization In Response To Affirmative Action, Brett Hammon

Brett Hammon

“They marched on Washington to reclaim civil rights. They complained of voter intimidation at the polls. They called for ethnic studies programs to promote racial pride. They are, some say, the new face of racial oppression in this nation -- and their faces are White.”a A 2011 poll indicates that Whites have now come to view anti-White bias as a bigger problem than anti-Black bias.b Based on recent Supreme Court opinions, most of the Justices apparently agree that Whites are today’s true victims, as the Court has continued to steadfastly stand up for the rights of White plaintiffs against discrimination …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

Race And The Death Penalty: An Empirical Assessment Of First Degree Murder Convictions In Tennessee After Gregg V. Georgia, John M. Scheb Ii, Hemant K. Sharma, David J. Houston, Kristin Wagers

John M Scheb II

We analyze over 1,000 first-degree murder convictions in the state of Tennessee from 1977 through 2007 to determine if either “race-of-defendant” or “race-of-victim” effects are present when it comes to the application of capital punishment. We control for numerous factors related to the demographics of offender and victim, as well as the circumstances of the crime itself and the availability of evidence. Our primary findings note that prosecutors are more likely to seek a death sentence when a victim is white, but we also find that juries are not affected by the race of the victim. We also find no …

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang

Naomi J Bang

ABSTRACT: THE GLOBAL SUPPLY CONTRACT CHARADE

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

The Thirteenth Amendment "Exception" To The State Action Doctrine: An Originalist Reappraisal, Ryan Walters

Ryan Walters

There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the general rule that the U.S. Constitution does not apply to private actors – the state action doctrine. There has never been an analysis of this assertion using reasonable-observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Essay uses reasonable-observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that the Thirteenth Amendment is …

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Donald E. Campbell

The Voting Rights Act of 1965 has been described as the “crown jewel” of the civil rights movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the Justice Department of President George W. Bush to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to …

Applying Method To The Madness: The Right To Court Appointed Guardians Ad Litem And Counsel For The Mentally Ill In Immigration Proceedings, Amelia Wilson

Amelia Wilson

A unique dilemma facing immigration judges (IJs) and practitioners today is how to address the acute problem of mentally ill respondents appearing pro se in immigration removal proceedings. Mentally ill respondents are more likely to face deportation from a position of indigence and detention, both of which create substantial barriers to obtaining counsel. Even where represented, the mentally ill are less able to contribute to their own defense or understand the proceedings against them. This lack of meaningful participation has cascading deleterious effects on respondents themselves, but also on our already overburdened immigration courts by creating docket delays, prolonged detention, …

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann Mcginley, Ryan Mcginley-Stempel

Ann McGinley

Abstract

BEYOND THE WATER COOLER: SPEECH AND THE WORKPLACE IN AN ERA OF SOCIAL MEDIA

Ann C. McGinley & Ryan McGinley-Stempel

Few would dispute the proposition that free speech and association play an important role in the operation of a healthy democracy. Private workplaces, however, are an important exception. Even though as a nation we profess to honor free speech as one of our most important values, in the employment context, the law often willingly restricts employee speech in favor of the employer’s interests in efficient management. When civil society was clearly distinct from the workplace, this was less problematic. …

Pro-Business Or Anti-Gay? Disguising Lgbt Animus As Economic Legislation, James A. Reed

Alex Reed

Several states are considering legislation that would prohibit cities from enacting nondiscrimination ordinances which are more inclusive than state law in terms of their protected classes. Although characterized as economic legislation, the evidence suggests that these bills are being introduced because of—not merely in spite of—their adverse effects upon the LGBT community. This article proposes that the Supreme Court apply heightened scrutiny to classifications based on sexual orientation and gender identity so as to expose the discriminatory motivations underlying these bills and ensure that courts are no longer complicit in denying LGBT Americans the equal protection of the laws.

Restorative Justice In The Gilded Age: Shared Principles Underlying Two Movements In Criminal Justice, Ali M. Abid

Ali M Abid

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes. The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional …

Vindication Over Arbitration: How Disparate Treatment Pattern Or Practice Claims Render Arbitration Agreements Unenforceable, Jeremy Greenberg

Jeremy Greenberg

The Supreme Court has consistently held that the Federal Arbitration Act embodies a federal policy favoring arbitration. Despite this policy, the Court also holds that arbitration agreements are unenforceable when individual plaintiffs cannot vindicate their statutory rights in arbitration. Additionally, the Court has emphasized that plaintiffs cannot arbitrate as a class unless the parties agreed to do so in the arbitration agreement. Certain claims, such as pattern or practice claims under Title VII, must be heard as a class. This Comment, therefore, argues that the inability to vindicate Title VII statutory rights in a class action renders arbitration clauses in …

“An Existential Moment Of Moral Perception”: Declarations Of Life And The Capital Jury Re-Imagined, Rebecca T. Engel

Rebecca T Engel

In many ways, death penalty jurisprudence, as well as its social status, have evolved at a rapid rate recently in the United States. This has occurred as the Supreme Court has twice declared capital punishment to be specifically unconstitutional in the last decade, in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), and as five states within four years have repealed it from within their criminal justice systems. (New York, New Jersey, Illinois, New Mexico, and Connecticut.) However, in other ways, the system has continued to lag, hardly moving from its difficult reinstatement …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

Disparate Protections For American Human Trafficking Victims, Amanda J. Peters

Amanda J Peters

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000. It was the first piece of legislation to address human trafficking. Since that time, the United States has monitored anti-trafficking efforts worldwide. Nations that fail to meet minimum standards set by the United States risk losing non-humanitarian financial aid from the federal government, the International Monetary Fund, and global banks. Yet, these minimum standards are not met by the United States when it comes to protecting American trafficking victims.

According to the TVPA, governments shall attempt to prevent human trafficking, punish traffickers, and protect people who have been …

State Law To The Contrary? Examining Potential Limits On The Authority Of State And Local Law Enforcement To Enforce Federal Immigration Law, George Bach

George Bach

As the Supreme Court recently reaffirmed in Arizona v. United States, it is well-established that the “authority of state officers to make arrests for federal crimes,” including federal immigration law, “is . . . a matter of state law.” This general, universal rule has not yielded consistent results. The circuit courts of appeals have disagreed as to when state and local law enforcement can invoke this “implicit authority” and enforce federal immigration law. On one end of the spectrum stands the Ninth Circuit view that state and local law enforcement only have such authority if affirmatively authorized by the state. …

Disambiguating The Disparate Impact Claim, Herman N. Johnson Jr.

Herman N. Johnson Jr.

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or …

Disambiguating The Disparate Impact Claim, Herman N. Johnson Jr.

Herman N. Johnson Jr.

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or …

Medical Marijuana Lawyers: Outlaws Or Crusaders?, Sam Kamin, Eli Wald

Sam Kamin

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Catherine Y Kim

Since Brown v. Board of Education, the federal courts have played an expansive role in institutional reform litigation to restructure state and local government institutions such as public school systems, prisons, law enforcement agencies, and health care facilities accused of violating individual rights. The 2009 decision in Horne v. Flores, in which a five-four majority of the Supreme Court employed a novel interpretation of the Federal Rules of Civil Procedure to substantially enlarge government-defendants’ ability to terminate ongoing judicial oversight in these types of cases, threatens the future viability of this model of social reform. The propriety of institutional reform …

Act Up, Fight Back, Fight Aids! The Legacy Of Act Up’S Policies And Actions From 1987-1994, Nathan H. Madson

Nathan H Madson

The AIDS Coalition to Unleash Power (ACT UP) was founded in 1987 after a speech by Larry Kramer implored people to address the widespread destruction and deaths caused by HIV/AIDS. Since its founding, ACT UP has worked to improve the public’s awareness of the disease and to push for legislation that not only protected People With AIDS (PWAs), but also improved their access to medications and treatments. The way in which ACT UP achieved these goals, however, has provided a framework for other marginalized groups to make a similar impact. Some of the tools ACT UP used include: zaps, political …

Disambiguating The Disparate Impact Claim, Herman N. Johnson Jr.

Herman N. Johnson Jr.

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or …

Disambiguating The Disparate Impact Claim, Herman N. Johnson Jr.

Herman N. Johnson Jr.

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …