Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 40

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 Sep 2006

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 ...


Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn Jul 2006

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 in federal constitutional ...


Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson Jul 2006

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 Jun 2006

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 End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher B. Seaman, Richard Valelly Apr 2006

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher B. Seaman, Richard Valelly

Faculty Scholarship

Section 5 of the Voting Rights Act of 1965 requires certain jurisdictions with a history of racial discrimination to obtain “preclearance” of proposed electoral changes from the United States Department of Justice or a three-judge panel in the United States District Court for the District of Columbia. This provision, which is set to expire in August 2007, has successfully reduced racial and ethnic discrimination in voting.

The United States Supreme Court determined in a 5-4 decision, Reno v. Bossier Parish School Board, 528 U.S. 230 (2000), that Section 5's prohibition on the enforcement of electoral changes which have ...


Invisible Settlements, Invisible Discrimination, Minna J. Kotkin Mar 2006

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 Feb 2006

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 ...


Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs Feb 2006

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 of ...


The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, 11 Mich. J. Race & L. 477 (2006), Cecil J. Hunt Ii Jan 2006

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, 11 Mich. J. Race & L. 477 (2006), Cecil J. Hunt Ii

Faculty Scholarship

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court ...


Legal, Strategic Or Legal Strategy: Deciding To Decide During The Civil War And Reconstruction, Mark A. Graber Jan 2006

Legal, Strategic Or Legal Strategy: Deciding To Decide During The Civil War And Reconstruction, Mark A. Graber

Faculty Scholarship

No abstract provided.


To Kill A Mockingbird (1962): Lawyering In An Unjust Society, Taunya Lovell Banks Jan 2006

To Kill A Mockingbird (1962): Lawyering In An Unjust Society, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.


Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis Jan 2006

Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis

Faculty Scholarship

More than thirty years have passed since Congress enacted Title IX, the statute prohibiting sex discrimination by schools, colleges, and universities that receive federal funding. In that time, Congress has confirmed -and reconfirmed- the statute's application to college athletic programs, and the Supreme Court has strengthened the statute's enforcement by construing a private right of action for both injunctive relief and, in certain cases, money damages. Bolstered by these measures, Title IX is duly credited for increasing the number of athletic opportunities for women and girls. But at the college level, female athletes still have far fewer opportunities ...


Book Review: Michele Goodwin's Black Markets: The Supply And Demand Of Body Parts, Barbara A. Noah Jan 2006

Book Review: Michele Goodwin's Black Markets: The Supply And Demand Of Body Parts, Barbara A. Noah

Faculty Scholarship

The Author reviews Michele Goodwin’s book BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS, published by Cambridge University Press, 2006. The book discusses the shortage of cadaveric organs available for transplantation. It argues that the shortage disproportionately impacts racial minorities. It then analyzes existing organ procurement laws and proposed alternatives, with a focus on market solutions.

BLACK MARKETS is impeccably researched and persuasively argued, though some of its points are certainly controversial. The book is aimed at and very accessible to a general audience, but it will also prove interesting and informative to legal, medical and public health ...


"The Irresistible Force Meets The Immovable Object": When Antidiscrimination Standards And Religious Belief Collide In Aba-Accredited Law Schools, Kristin B. Gerdy Jan 2006

"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.


Deconstructing The Maternal Wall: Strategies For Vindicating The Civil Rights Of "Carers" In The Workplace, Joan C. Williams, Elisabeth S. Westfall Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Right To Counsel On Appeal: Civil Douglas, 15 Temp. Pol. & Civ. Rts. L. Rev. 603 (2006), Steven D. Schwinn Jan 2006

The Right To Counsel On Appeal: Civil Douglas, 15 Temp. Pol. & Civ. Rts. L. Rev. 603 (2006), Steven D. Schwinn

Faculty Scholarship

No abstract provided.


Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman Jan 2006

Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman

Faculty Scholarship

This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is ...


From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt Jan 2006

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt

Faculty Scholarship

The incarceration explosion of the late twentieth century set off a storm of longitudinal research on the relationship between rates of imprisonment and crime, unemployment, education, and other social indicators. Those studies, however, are fundamentally flawed because they fail to measure confinement properly. They rely on imprisonment data only, and ignore historical rates of mental hospitalization. With the exception of a discrete literature on the interdependence of the mental hospital and prison populations and some studies on the explanations for the prison expansion, none of the empirical work related to the incarceration explosion – or for that matter, older research on ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Jan 2006

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 ...


Why Have A Telecommunications Law?: Anti-Discrimination Norms In Communications, Tim Wu Jan 2006

Why Have A Telecommunications Law?: Anti-Discrimination Norms In Communications, Tim Wu

Faculty Scholarship

This paper presents telecommunications law with a challenge: how much of the present Telecommunication's Acts objectives might be accomplished with a focus on a central anti-discrimination rule? The one-rule model provides one answer. This rule should be (1) a general norm that is technologically neutral, (2) in the form of an ex ante rule with ex poste remedies, and (3) anchored on a model of consumers' rights. The form of the rule recommended here is hardly radical. It is, rather, something of a restatement of the best of telecommunications practice based on decades of telecommunications experience. It borrows from ...


Testamentary Incorrectness: A Review Essay, Paul D. Carrington Jan 2006

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)


A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati Jan 2006

A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati

Faculty Scholarship

Response to Richard Sander, The Racial Paradox of the Corporate Law Firm, 84 North Carolina Law Review 1755 (2006)


A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg Jan 2006

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

This article critically analyzes the evolving history of marriage, prompted by the marriage equality claims brought by same-sex couples. The article includes a copy of an amicus brief submitted on behalf of historians to a New Jersey appellate court in Lewis v. Harris, an ultimately successful challenge to the denial of relationship recognition rights for same-sex couples.


Brown Ii: A Case Of Missed Opportunity?, Trina Jones Jan 2006

Brown Ii: A Case Of Missed Opportunity?, Trina Jones

Faculty Scholarship

No abstract provided.


Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.


Latinos And American Law: Landmark Supreme Court Cases, Steven W. Bender Jan 2006

Latinos And American Law: Landmark Supreme Court Cases, Steven W. Bender

Faculty Scholarship

In this review, the author advocates for a work which provides much needed attention to Latinos in the context of American Law. Specifically, the review outlines key elements of Soltero’s work, which highlights Latino Supreme Court cases.


Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve Jan 2006

Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve

Faculty Scholarship

The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.