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What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias Aug 2019

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


Leveling Down Gender Equality.Pdf, Tracy A. Thomas Apr 2018

Leveling Down Gender Equality.Pdf, Tracy A. Thomas

Tracy A. Thomas

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of "leveling down" -- that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the "mean remedy" and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable ...


Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke Jan 2018

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Anthony O'Rourke

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills ...


From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau Dec 2017

From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau

Holning Lau

Loving v. Virginia and Obergefell v. Hodges are both landmark Supreme Court cases that advanced marriage equality. In Obergefell, the Court invalidated bans on same-sex marriage by building upon precedent it set nearly five decades earlier in Loving, which declared antimiscegenation laws unconstitutional. Indeed, commentators often describe Loving as an important precursor to Obergefell. Yet Obergefell’s reasoning deviated from that of Loving. The differences between the two cases are all too often overlooked. This Essay thus seeks to address this blind spot by drawing attention to a critical distinction: Loving and Obergefell differ in their conceptualization of discrimination. 

When ...


Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey Nov 2017

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Martha T. McCluskey

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank ...


Government Nonendorsement, Nelson Tebbe Sep 2017

Government Nonendorsement, Nelson Tebbe

Nelson Tebbe

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is ...


American Equal Protection And Global Convergence, Holning Lau, Hillary Li Dec 2016

American Equal Protection And Global Convergence, Holning Lau, Hillary Li

Holning Lau

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change ...


Equality: A Test On Equal Protection, Alan E. Garfield Sep 2016

Equality: A Test On Equal Protection, Alan E. Garfield

Alan E Garfield

No abstract provided.


Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman Aug 2015

Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman

Thomas S Glassman

Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law ...


All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet Aug 2015

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of ...


Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero May 2015

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Victor C. Romero

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all races equally requires ...


An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero May 2015

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.


Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero May 2015

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Victor C. Romero

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law. Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception ...


Scholars Of The Constitutional Rights Of Children (Amici Curiae), Tanya M. Washington Mar 2015

Scholars Of The Constitutional Rights Of Children (Amici Curiae), Tanya M. Washington

Tanya Monique Washington

My co-authors and I filed an amicus brief with the U.S. Supreme Court in Obergefell v. Hodges last month. Our first co-authored amicus brief was filed with the Supreme Court in U.S. Windsor in 2013, and it was cited by the Respondents in their brief to the Court. The Defense of Marriage Act's harmful impact on children in same-sex families was the focus of that brief, and the Court acknowledged those harms as relevant to its analysis of DOMA's constitutionality. Our brief was published in the Iowa Journal of Gender, Race and Justice.

In our amicus ...


Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf Feb 2015

Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf

Michael C. Dorf

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the ...


A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf Feb 2015

A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf

Michael C. Dorf

Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared ...


A Comment On Cass Sunstein's Equality, Emily Sherwin Feb 2015

A Comment On Cass Sunstein's Equality, Emily Sherwin

Emily L Sherwin

No abstract provided.


Schuette, Facial Neutrality And The Constitution, Mark Strasser Jan 2015

Schuette, Facial Neutrality And The Constitution, Mark Strasser

Mark Strasser

Equal protection jurisprudence continues to evolve. The Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action expressly disavows that it is modifying the existing equal protection jurisprudence, while nonetheless employing an approach that had previously been rejected in a few different respects. As to whether the Court has radically altered the existing equal protection jurisprudence in any of these respects sub silentio or, instead, has simply suspended the accepted constitutional rules in this particular case, this remains to be seen.

This article discusses the developing equal protection jurisprudence with respect to racial classifications, and then focuses on ...


Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen Dec 2014

Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen

Rona Kaufman Kitchen

In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental ...


Diversity: The Red Herring Of Equal Protection, Sharon E. Rush Oct 2014

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

Sharon E. Rush

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well ...


Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren Apr 2014

Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren

Geoffrey Heeren

Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and ...


Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson Mar 2014

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Darren L Hutchinson

Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights ...


Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins Dec 2013

Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins

Mel Cousins

The adoption of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter “PRWORA”) led to considerable litigation over immigrants’ rights to welfare benefits and access to health care. The approaches adopted by different courts (both federal and state) diverged significantly based on the various statutory schemes involved as well as distinct approaches to equal protection. However, no “on point” cases have reached the United States Supreme Court, so the “correct” approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants residing in the country legally from state healthcare or welfare ...


Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins Dec 2013

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope ...


Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas Nov 2013

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination change ...


Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal Sep 2013

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Jennifer Daskal

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as to their appropriate ...


Saving Disparate Impact, Lawrence Rosenthal Aug 2013

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.


Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz Jun 2013

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin May 2013

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.


Workers’ Compensation And The Right To Interstate Travel – Schatz V Interfaith Care Centre, Mel Cousins Jan 2013

Workers’ Compensation And The Right To Interstate Travel – Schatz V Interfaith Care Centre, Mel Cousins

Mel Cousins

In Schatz, the Minnesota supreme court considered the interesting question of the right to interstate travel as it affects workers’ compensation. While we know that durational residence requirements for welfare benefits and medical care are likely to be found to be unconstitutional, the US courts have to date not greatly explored where other conditions of social security, workers compensation or welfare schemes may impinge on the right to interstate travel. In order to set the groundwork, Part 1 of this note sets out the Supreme Court’s decisions concerning benefits and the right to travel, focusing on the aspects of ...