Digital Commons Network^™

Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker

April J. Walker

No abstract provided.

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Bowman

Mary N. Bowman

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Lost In The Numbers: The Underrepresentation Of Asian American Groups And The Case For Disaggregating “Asian” Data, William W. Yu

William W Yu

While certain Asian ethnicities outperform Whites and other groups with respect to socioeconomic achievement, other Asian groups fail to reach the same levels of success. Despite this, the aggregate treatment of Asian Americans continues in affirmative action debates, especially in the educational context. As a result, the unique needs and issues of groups such as Southeast Asians are often ignored. The aggregate treatment is also used to justify the exclusion of Asian Americans from affirmative action policies because of a belief that Asian Americans as a whole are already adequately represented in schools, and thus no longer need affirmative action. …

Strict In Theory, But Accommodating In Fact?, Ozan O. Varol

Ozan O Varol

No abstract provided.

A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea

dylan zorea

I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …

Change Is Needed; How Latinos Are Affected By The United States Criminal Justice System, Christopher F. Bagnato

Christopher F. Bagnato

Latinos have been present in this country for centuries. They slowly have been making their mark in the communities of this country, usually seen but not really heard or noticed. Yet during the past thirty years the amount of Latino immigrants has skyrocketed. Census projections indicate that Latinos will be the biggest minority population in this county in the near future. The issues with discrimination of Latinos started on the streets with phrases like, “racial profiling” and “driving while brown,” and have moved into new places like the courtroom. Latinos have had to face not only the burden of prejudice …

Torch (September 2009), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …

A Crumbling Pyramid: How The Evolving Jurisprudence Defining “Employee” Under The Adea Threatens The Basic Structure Of The Modern Large Law Firm, Jessica Fink

Jessica Fink

Under the Age Discrimination in Employment Act, as well as other federal antidiscrimination laws, only “employees” as defined by the statute are permitted to sue. In recent years, the U.S. Supreme Court and lower courts have provided guidance regarding when partners in large law firms might be deemed “employees” protected by these laws. What has emerged from the courts’ decisions in these cases is a test that places significant emphasis on the amount of power and control that a partner has within a firm: Partners deemed to lack a sufficient amount of power and control within their firms may be …

Improvement On The Commission?: The Un Human Rights Council’S Inaction On Darfur, Rosa A. Freedman

Rosa A Freedman

The UN Human Rights Council was established in 2006 to overcome the perceived politicisation of its predecessor, the UN Human Rights Commission. This article provides initial observations of its work, based on heretofore unpublished accounts of its proceedings. Using the example of Council inaction on Darfur, evidence is examined to confirm initial fears that the Council would fail to avoid the politicisation that had undermined the Commission. A major cause of the Council’s inaction on Darfur was the collective determination of politically allied states to shift attention away from Sudan and to weaken any resolution that might be passed. This …

The United States And The Un Human Rights Council: An Early Assessment., Rosa A. Freedman

Rosa A Freedman

The United States assumed membership of the United Nations Human Rights Council in 2009. That move reversed its decision, taken only a few months earlier under George W. Bush, to withdraw America’s official observer mission. President Obama’s new openness may suggest a fresh start to American foreign policy, but the US has not altered its basic objections to the Council’s procedures and decisions. Failures of the Council’s predecessor, the Human Rights Commission, had been attributed to politicisation and bias. Since the Commission’s dissolution, the US had warned against a repeat of the Commission’s failures. Disgruntled that those warnings were ignored, …

To "Kill The Indian ... And Save The Man": A Constitutionalist Critique Of Civic Education, Mark E. Brandon

Mark E Brandon

The point of this article is to consider the implications of civic education in a constitutionalist order. The article begins with a study of the earliest attempts at civic education in North America: the various efforts by Europeans and later by agents of the United States to “civilize” the native tribes through education. The article then presents approaches of three proponents of civic education today – Lynne Cheney, Amy Gutmann, and Stephen Macedo – comparing their aims and methods with programs whose targets were children of the tribes. Finally, the article assesses the compatibility of programs for civic education with …

A Civic Critique Of Democracy: Civic Organizing As The Generating Force Of A Civic Concept Of Law, Palma Joy Strand

palma joy strand

A Civic Critique of Democracy: Civic Organizing as the Generating Force of a Civic Concept of Law Palma Joy Strand ABSTRACT Judge Sonia Sotomayor’s controversial “wise Latina” comment embodies the view that law is socially constructed—that “we” make it and that it thus may vary according to who “we” are. Current theories of “popular constitutionalism,” “democratic constitutionalism,” and “demosprudence” take this several steps further and begin to explore the idea that the “we” that makes constitutional law is not just judges but society more broadly. These theories matter because they envision an active role for citizens in law creation, but …

Integration, Litigation, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby

Ruqaiijah A Yearby

Using nursing home care as an example, this article applies a public health policy perspective to the problem. I use empirical data to prove the persistence of racial inequities in health care, analyze the government policies that allow racial inequities to continue, and provide a solution of regulatory integration. Specifically, I propose that civil rights enforcement be integrated with the nursing home enforcement system, which has been aggressively enforced and monitored. There are many strategies that may lead to the adoption of this system. One such strategy is using the Medicaid Act to induce the government to fulfill its non-race …

Too Little, Too Late? Why President Obama’S Well-Intentioned Reforms Of The Military Commissions May Not Be Enough To Save Them, John M. Bickers

John M. Bickers

This article argues that the Bush Administration made three critical choices that destined the commissions to failure: the relatively non-public nature of the commissions, the original possibility that they might rely on coerced testimony, and an unsettling focus on those whose offenses consisted of not being “proper” combatants. President Obama’s proposed reforms address the first issue in part, and the second completely, but the third not at all. Failure to repair fully these problems, the article suggests, will prevent meaningful use of the commissions to demonstrate to the world the deeds of al Qaeda. Without further reform, the military commissions …

Shades Of Gray: The Life And Times Of An Antebellum Free Family Of Color, Jason A. Gillmer

Jason A Gillmer

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who moved from Louisiana to Texas in the early 1830s, where they owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional thinking—life …

Intent And Empirics: Race To The Subprime, Carol N. Brown

Carol N Brown

ABSTRACT INTENT AND EMPIRICS: RACE TO THE SUBPRIME The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled …

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Thomas G Donnelly

Popular constitutionalists often ignore one of the most important features of popular constitutional culture—the constitutional life of the average citizen. Although these scholars have detailed the key role played by non-judicial actors in promoting non-Article V constitutional change, they have spent little time considering how changes to constitutional meaning become part of our popular constitutional fabric. This Article fills a gap in the literature by examining how popular constitutional meaning is shaped “on the ground,” once the most recent controversy fades and constitutional life returns to normal. To that end, it focuses on a pathway that has been largely ignored …

Balancing Law Student Privacy Interests And Progressive Pedagogy: Dispelling The Myth That Ferpa Prohibits Cutting-Edge Academic Support Methodologies, Louis N. Schulze

Louis N. Schulze Jr.

Controversy exists over whether the Family Education Records Privacy Act prohibits certain progressive law school academic support methodologies. This Article analyzes these claims, using the text of the statute, the related regulations, case law from the Supreme Court of the United States and other federal courts, and statements from the Department of Education. The thesis of this Article is that most academic support methods are perfectly lawful and that FERPA and progressive pedagogy can peaceably coexist.

Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser

Mark Strasser

A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …

Bentham & Ballots: Tradeoffs Between Secrecy And Accountability In How We Vote, Allison Hayward

Allison Hayward

The way a group, jurisdiction, or nation votes, and makes decisions binding on their members and citizens, is fundamental and deceptively prosaic. Why do some groups (faculties, Congress, caucuses, HOAs) take public votes in most contexts, accompanied by debate, sometimes heated. Why do others (electorates, labor unions) take private votes (often by ballot cast in a secure setting where “heated debate” is not allowed) in most contexts? Moreover, what should we make of the exceptions to these general forms? This Article will demonstrate that the hybrid mode of voting – non-debated yet non-secret voting such as in contemporary absentee balloting, …

Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient …

The Rights Question, Bruce A. Antkowiak

Bruce A Antkowiak

The problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and …

Looking Into The Crystal Ball—The Jurisprudential Possibilities For Buxton V. City Of Plant City, Brandon Thompson

Brandon M Thompson

The paper addresses what process is due for government employees who have been terminated. It focuses specifically on what opportunity the employee will have for a name-clearing hearing after their job has ended. The central thesis is that the test laid down by the 11th Circuit is open to various interpretations but that courts should be mindful of the rights-granting nature of the process when applying this law.

Multilayered Racism: Courts' Continued Resistance To Colorism Claims, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

Untangling The Web Spun By Title Vii's Referral & Deferral Scheme, Lisa D. Taylor

Lisa D Taylor

Title VII's dual enforcement scheme creates knotty preclusion and subject-matter jurisdiction issues. The statute requires that claims of employment discrimination made in those states or localities with their own administrative enforcement bodies must first be presented locally, and may be pursued in the federal system only after affording the state administrative body time to attempt their resolution. The result of this dual enforcement scheme is that in some cases, a claim comes to federal court after it has already been adjudicated in the state system. Questions then arise as to whether the federal court has jurisdiction to hear the claim …

The Market Defense, Sharon Rabin-Margalioth

Sharon Rabin-Margalioth

This Article sheds a new light on the controversial issue whether employers should enjoy a market defense when confronted with claims of pay inequality. The conventional view that causation between group membership and adverse treatment is the essence of any discrimination claim enables employers to argue successfully that pay disparities are caused by market forces such as individual negotiation skills and not sex discrimination. The legitimization of the market defense contributes to the gender wage gap among employees performing equal work. In this Article, I argue that in most cases market justifications for pay disparity in equal pay for equal …

A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath

Raja Raghunath

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment – which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted” – has been seen by courts as one brick in this wall. This article makes the novel argument that, properly read, the …

Relays In Rebellion: The Power In Lilian Ngoyi And Fannie Lou Hamer, Cathy Laverne Freeman

History Theses

This thesis compares how Lilian Ngoyi of South Africa and Fannie Lou Hamer of the United States crafted political identities and assumed powerful leadership, respectively, in struggles against racial oppression via the African National Congress and the Student Non-Violent Coordinating Committee. The study asserts that Ngoyi and Hamer used alternative sources of personal power which arose from their location in the intersecting social categories of culture, gender and class. These categories challenge traditional disciplinary boundaries and complicate any analysis of political economy, state power relations and black liberation studies which minimize the contributions of women. Also, by analyzing resistance leadership …