Digital Commons Network^™

Reagan Redux: Civil Rights Under Bush, Neal Devins

Neal E. Devins

No abstract provided.

The Limits Of "Liberal Republicanism": Why Group-Based Remedies And Republican Citizenship Don't Mix, Cynthia V. Ward

Cynthia V. Ward

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Nathan B. Oman

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Just How Youthful Should Voters Be? Part Ii: Defining Electoral Decision-Making Competence, Vivian E. Hamilton

Vivian E. Hamilton

No abstract provided.

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …

Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky

Catherine Fisk

The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …

The Slow Demise Of Race Preference, Mark S. Brodin

Mark S. Brodin

This article traces the origins of affirmative action, its initial success, and the Reagan Administration's efforts to end it, which only recently have come to fruition with Fisher v. University of Texas and Shuette v. Coalition to Defend Affirmative Action.

Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel Margalit

Hezi Margalit

The dilemma of scarce medical resources is deeply rooted in the ancient mankind history, but it has been accelerated in the modern era with the appearance of the bio-medical innovations. This acute dilemma is relevant to all the western developed states, include Israel. Nevertheless, in one field there is the notion that Israel has unlimited medical resources – the fulfillment of its citizen's procreation and parenthood rights. Thus, for sociological, demographical, religious and security reasons the State of Israel invests a vast amount of money to develop and use the various fertility treatments. Israel, today, has the highest per capita …

Background Primer For Discussion On Diversity Within The Legal Profession, James M. Donovan

James M. Donovan

Despite its easy use in ordinary conversation, the details of what is meant when a speaker raises questions relating to “diversity” can be more complicated that they at first appear. The materials included here seek to map the more predominant landmarks on that intellectual landscape.

Maximizing Inclusionary Zoning’S Contributions To Both Affordable Housing And Residential Integration, Tim Iglesias

Tim Iglesias

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning …

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate …

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …

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 …

Standardized Testing And Race: A Reply To Professor Subotnik, Harvey Gilmore

Harvey Gilmore

Professor Gilmore responds in disagreement to Professor Subotnik's article supporting standardized testing.

The Fraudulent Case Against Affirmative Action: The Untold Story Behind Fisher V. University Of Texas, Mark S. Brodin

Mark S. Brodin

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the …

In Defense Of Surrogacy Agreements: A Modern Contract Law Perspective, Yehezkel Margalit

Hezi Margalit

The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years the practice of surrogacy has slowly but surely become increasingly socially accepted and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this article I describe and trace the dramatic revolution that took place during the recent decades as the surrogacy practice has totally changed from one viewed as problematic and rejected to a …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

Valerie Schneider

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

Denying Freedom Rather Than Securing The Country: National Security Is Undermined By Laws Governing Battered Immigrants, Eve Tilley-Coulson

Eve Tilley-Coulson

Relief for battered immigrants is not an obvious national security matter per se, yet remedies are enacted in conjunction with stringent interpretations of immigration law, as though victims pose a security threat. Discrepancies exist between the immigration laws themselves—which attempt to secure the United States from disease, violence, and illegal activity—and the loopholes within remedies under these laws, unnecessarily removing victims and perpetuating a cycle of fear and abuse. By displacing the victim, rather than the abuser, the government allows the cycle of violence to continue, while simultaneously breaking up families and creating disorder and instability. The economic and societal …

Does Fair Housing Law Apply To “Shared Living Situations”? Or, The Trouble With Roommates, Tim Iglesias

Tim Iglesias

In 2012, the Ninth Circuit held that to avoid a constitutional conflict with the right to freedom of association neither the federal Fair Housing Act nor California’s Fair Employment and Housing Act apply to persons seeking roommates or to other shared living situations. This article criticizes the opinion as poorly reasoned and overly broad and then offers a more targeted legislative solution to the problem.

Gender Dysphoria In The Jailhouse: A Constitutional Right To Hormone Therapy?, Susan S. Bendlin

Susan S. Bendlin

This Article explores whether incarcerated inmates with Gender Dysphoria, such as Private Manning, have a constitutional right to receive medical treatment for gender re-assignment, and if so, whether they are likely to succeed in suing to obtain treatment if it is not provided by prison officials. Evaluating a prisoner’s Eighth Amendment claim involves two inquiries: an objective component as to whether the inmate displays a “serious medical need”, and a subjective component as to whether the prison officials were “deliberately indifferent” to that need.The issue is a sensitive one because the diagnosis of Gender Dysphoria as a medical illness has …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber

Mark C. Weber

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …

Unhappy Meals: Sex Discrimination In Toy Choice At Mcdonald’S, Ian Ayres

Ian Ayres

This essay reports on a commonplace form of sex discrimination that we unsuccessfully challenged in a lawsuit before the Connecticut Human Rights Commission. In a small-scale pilot study that we conducted 5 years ago (which was the basis of our initial complaint) and in a follow-up study conducted in 2013, we found that McDonald’s franchises, instead of asking drive-through customers ordering a Happy Meal about their toy preference, instead asked the customer for the sex of the customer’s child (“Is it for a boy or a girl?”) and then gave different types of toys for each sex. Moreover, our 2013 …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan D. Carle

Susan D. Carle

Intentional Parenthood: A Solution To The Plight Of Same-Sex Partners Striving For Legal Recognition As Parents, Yehezkel Margalit

Hezi Margalit

One significant ramification of the plight of same-sex partners attempting to receive legal recognition of their non-“traditional” family structure is their inability to be recognized as the legal and/or additional parent of a non-biologically related child either by adoption or following fertility treatments. It is a fact that gay partners are not legally recognized as married, therefore they are not granted the same legal recognition as their heterosexual peers. In this research, I will explore the main approaches available today to same-sex partners to acquire legal parentage and their inherent difficulties. I will suggest a way to circumvent those difficulties …

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Taunya Lovell Banks

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

Identity/Time, Nancy J. Knauer

Nancy J. Knauer

This paper engages the unspoken fourth dimension of intersectionality — time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity — the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time.