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Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand

Michael A Helfand

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth

Anna P. Hemingway

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Banks

Taunya Lovell Banks

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge. Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros

Maria L. Ontiveros

This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration …

The Usual Suspect Classifications: Criminals, Aliens And The Future Of Same-Sex Marriage, Michael A. Helfand

Michael A Helfand

In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as traits that are in the words of the Supreme Court in Frontiero v. Richardson, mere "accident[s] of birth." In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in …

The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler

Maria L. Ontiveros

This paper examines the extent to which the Thirteenth Amendment can be used to guarantee access to public education for the children of undocumented workers. It offers a reimagined version of Plyer, written using the Thirteenth Amendment, instead of the Fourteenth Amendment. After offering a brief summary of Thirteenth Amendment jurisprudence, it offers a variety of theoretical frameworks for analyzing the denial of education under the U.S. Constitution. It argues that the Thirteenth Amendment can provide a powerful tool for litigation, moral persuasion, organizing and legislation in the area.

Female Immigrant Workers And The Law: Limits And Opportunities, Maria Ontiveros

Maria L. Ontiveros

This paper explains the reasons that traditional United States labor and employment laws are incapable of effectively addressing the types of workplace problems confronting female immigrant workers. It critiques the protections supposedly offered by the free market, labor standards, antidiscrimination laws and collective bargaining. It argues that statutory exclusion, immigration issues, nonrecognition of injury, and cultural limitations thwart the effectiveness of traditional approaches. It then describes a variety of initiatives and approaches being taken at the domestic and international level that more effectively address these problems. These initiatives include the use of the Thirteenth Amendment and antitrafficking legislation, as well …

Transgender Theory: Reprogramming Our Automated Settings, Marybeth Herald

Marybeth Herald

Over the course of the last few decades, both law and society have struggled to deprogram unhelpful and downright destructive gender stereotypes that are ubiquitous in our everyday existence. It has not been an easy task, nor entirely successful on either the legal or cultural front. Laws that prohibit gender discrimination, such as Title VII, have helped end overt discrimination. The next phase involves the challenging problem of unconscious bias, which often effectively keeps us treading the same mental paths while bypassing any roads not traveled.

It is not surprising then that when the validity of even the basic categories …

Eyes Wide Shut: Erasing Women's Experience, From The Clinic To The Courtroom, Marybeth Herald, Ellen Waldman

Marybeth Herald

n his decade long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question, what do women want. Unfortunately, the 19th century psychiatrist was unable to separate that question from the one he ultimately answered, What do men want women to want? In some sense, Freud's inquiries provide an apt metaphor for the medical professions' stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experience, the medical field has responded with approaches that range from bemusement to hostility to intense indifference.

Although …

Indeterminacy, Justification And Truth In Constitutional Theory, Robert Lipkin

Robert Justin Lipkin

In this Article, Professor Lipkin continues the debate over the nature of indeterminacy in constitutional theory, arguing that epistemic indeterminacy is most relevant to the law, because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy.

Professor Lipkin further argues that the controversy over metaphysical or epistemic indeterminacy is really a controversy over truth or justification as the primary form of validating constitutional rules. In Professor Lipkin's view, the search for constitutional truth should be abandoned or, at best, should be treated as a trivial result of the best justification.

Finally, Professor Lipkin proposes a new …