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Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Elisabeth Haub School of Law Faculty Publications
Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …
Raisins And Resilience: Elaborating Home's Compensation Analysis With An Eye To Coastal Climate Change Adaptation, Joshua Ulan Galperin
Raisins And Resilience: Elaborating Home's Compensation Analysis With An Eye To Coastal Climate Change Adaptation, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
The State of New Jersey, the Borough of Harvey Cedars, and the United States Army Corps of Engineers were all preparing for an event like Hurricane Sandy years before the 2012 super-storm made landfall along the Mid-Atlantic coast. The governments began, for instance, a major dune restoration project in 2005 in order to protect the New Jersey coast from massive storm surges that could destroy homes and businesses. To carry out the effort, the local governments sought to purchase the right to build along the seaward portion of property owners' land, and would then construct roughly twenty-foot-high, thirty-foot-wide dunes. If …
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines-namely, the Pickering-Connick framework for teachers' classroom speech and …
The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield
The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …
Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, …
Introduction To The Imperial Presidency And The Consequences Of 9/11, Mark R. Shulman
Introduction To The Imperial Presidency And The Consequences Of 9/11, Mark R. Shulman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki
An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings …
The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield
The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.
"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg
"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …
The Debate Over War Powers, Mark R. Shulman
The Debate Over War Powers, Mark R. Shulman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin
Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …
The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman
The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman
The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
After the Supreme Court held in Widmar v. Vincent that state universities could not constitutionally deny religious groups access to facilities generally available to student groups, a number of school districts authored access policies that were designed to create “limited public forums.” These policies delineated the categories of activities for which school property could be used, and indicated that religious activities were not among them. In Lamb's Chapel v. Center Moriches Union Free School District, however, the Supreme Court struck a blow to the notion that school districts could employ the limited public forum approach to exclude religious activities from …
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.
The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein
The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
The premise of this essay is not to espouse that the Southern ideological and constitutional theorists were correct. I propose, however, that an understanding of the historical basis of constitutional law, and a recognition of evolving doctrinal issues of Federalism, will enhance law school curriculum. Presentation of these topics dictates the introduction of the Confederate Constitution into the curriculum of required courses and electives. This effort, I propose, would be a prudent step, to be amply repaid in terms of higher understanding and scholarly benefit.
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller
The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller
Elisabeth Haub School of Law Faculty Publications
Judicial actions by private citizens have played a critical role in the development and enforcement of federal environmental law in the United States over several decades. The courts' general receptivity to the standing of private environmental plaintiffs has made that role possible. A troika of Supreme Court decisions on standing in environmental cases authored by Scalia J over the last decade had eroded that general receptivity, casting doubt on the continued vitality of private actions in developing and implementing environmental law. The Court's recent decision in Friends of the Earth Inc v Laidlaw Environmental Services halts this erosion. To explain …
Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell
Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell
Elisabeth Haub School of Law Faculty Publications
This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own …
The Term Limits Case, Bennett L. Gershman
The Term Limits Case, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In U.S. Term Limits, the Court reviewed an amendment to the Arkansas Constitution, adopted in 1992, that made a candidate for the U.S. Senate or House of Representatives ineligible to have his or her name placed on the ballot for national election if that person had previously been elected to three or more terms as a member of the House, or two or more terms as a member of the Senate. Following a taxpayer's complaint seeking declaratory relief, the state circuit court held that this amendment violated the Qualifications Clauses in Article I, sections 2 and 3, of the U.S. …
The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman
The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman
Elisabeth Haub School of Law Faculty Publications
This Article reflects on the anomaly of the superior court's decision in Sheff in light of this recent history and recommends that the Connecticut Supreme Court use an alternative, analytical framework based on the Connecticut Constitution to decide the Sheff appeal. This independent approach is equally available to all state courts seeking to resolve fundamental issues under their own constitutions. Only by speaking in a clear, state voice can state courts balance the constitutional vision of the federal courts and fulfill the promise of the state constitutional law movement.
The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman
The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Brecht is a paradigm of the Rehnquist Court's result-oriented approach to habeas corpus and harmless error. The decision purports to be a principled application of the policies of finality, federalism, and judicial economy that underlay the Court's new habeas and harmless error jurisprudence. It is, in fact, an unwarranted and unprincipled extension of those policies. Depending on how the lower federal courts interpret and implement the decision, Brecht could have a devastating impact on the way state prosecutors and judges administer criminal justice, as well as the ability of state prisoners to redress constitutional violations.
Evolving Thresholds Of Nuisance And The Takings Clause, John A. Humbach
Evolving Thresholds Of Nuisance And The Takings Clause, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This article reviews the historical tradition in which the common law core of nuisance has been the frequent subject of statutory additions and refinements, providing most of our modern law of land use and environmental protection. Until Lucas, the Takings Clause had not been treated as a charter establishing the courts as boards of revision to rethink and selectively veto legislative determinations in the land use field. Within the scope of “total takings,” however, Lucas has converted the Takings Clause from its original meaning and made it exactly that.
"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach
"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence …
What Is Behind The "Property Rights" Debate?, John A. Humbach
What Is Behind The "Property Rights" Debate?, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
Lucas v. South Carolina Coastal Council' obviously presents issues that range far more broadly than just whether people should be allowed to build on beaches and dunes. Many observers have viewed the case as a splendid opportunity for the Supreme Court to re-establish private owner autonomy in land use decisions - to cut down, perhaps drastically, on elected legislatures' traditional power to protect the environment by regulating uses of land. Behind the "property rights" debate is the question of whether states and communities really ought to have the power that they have traditionally had to control the development and patterns …
Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein
Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
It is a special privilege, and a personal joy, for me to have the opportunity to contribute a piece honoring such a revered figure. I make no claim to scholarly objectivity. My premise is simple: William J. Brennan has given us a legacy of first amendment decisions, concurrences, and dissents that reflect great honor on the jurist. My portion of this Festschrift provides selected examples of Justice Brennan's contribution, and concludes by thanking him for serving, through his opinions, as a mentor for me throughout my career as a teacher of constitutional law.
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …
Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein
Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
Strategic Lawsuits Against Public Participation, or SLAPP suits, as they are commonly called, are a growing nationwide phenomenon which imperil the protection afforded by the petition clause of the first amendment to the United States Constitution. These suits also implicate fundamental freedom guarantees of the various state constitutions. My focus today, however, will be largely on the first amendment.
Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach
Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The rights/freedoms dichotomy tacitly permeates Supreme Court ‘takings' jurisprudence, and it has an explanatory power which extends to virtually all ‘takings' cases decided by the Court. Its explanatory power does not, however, extend to the relatively few cases which involve the taking of ‘rights' for purely private use, that is rearrangements of existing private property rights, as opposed to takings for use by the government or its designees in some public service function. Because rearranging the existing pattern of private ownership takes ‘rights' and not mere ‘freedoms,’ we might expect, according to the rights/freedoms pattern, that the Court would uniformly …
Economic Due Process And The Takings Clause, John A. Humbach
Economic Due Process And The Takings Clause, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The discussion which follows will examine the new verbalizations repeatedly employed in Supreme Court takings decisions of the past decade and the Court's enlistment of the just compensation requirement as a basis for undertaking substantive review of legislation. As an introduction, the distinctive historical roles and roots of the substantive due process and just compensation requirements will be reviewed.
"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg
"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The Article is presented in three Parts. Part I documents the enormous effect that Locke's political philosophy had on the Constitution's Framers and traces the idea of collective rights through Locke's Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court's current doctrine in a society founded …