Digital Commons Network^™

On The Road To Recognition: Irish Travellers’ Quest For Ethnic Identity, Kamaria A. Kruckenberg

Kamaria A Kruckenberg

This paper explores and defends Irish Travellers’ efforts to push the Republic of Ireland to recognize them as an ethnic minority group under law. Irish Travellers are a small indigenous minority group who have lived primarily in Ireland for centuries. They rank at the bottom of Irish society in rates of poverty, unemployment, life expectancy, infant mortality, health, education levels, political representation and access, and living conditions. Much like the Roma, with whom they share a nomadic tradition, Irish Travellers are in the midst a movement to improve living conditions, fight widespread discrimination, and gain recognition as an ethnic minority …

Speech Torts, Deana Ann Pollard Sacks

Deana A Pollard

Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state’s interest in imposing tort liability, then “constitutionalizing” the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent …

Freedom In A Slave Country: A True Story Of Race, Law, Sex, And Politics, Jason A. Gillmer

Jason A Gillmer

This Article unpacks the rich and textured story of the Ashworths, an obscure yet prosperous free family of color in the antebellum South who owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the times 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 was not so black and white. Drawing on local records rather than canonical cases, and listening to the voices from the community rather than the legislatures, this Article emphasizes the …

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 …

(How) Does Unconscious Bias Matter?: Law, Politics, And Racial Inequality, Richard Banks, Richard Thompson Ford

R. Banks

During the past several years, psychological research on unconscious racial bias has grabbed headlines, as well as the attention of legal scholars. The most well-known test of unconscious bias is the Implicit Association Test (IAT), a sophisticated and methodologically rigorous computer-administered measure that has been taken by millions of people, and featured in major print and broadcast media. Its proponents contend that the IAT reveals widespread unconscious bias against African-Americans, even among individuals who believe themselves to be free of racial bias.

In fact, however, the findings of the IAT are ambiguous. The test could just as plausibly be thought …

"Nigger": A Critical Race Realist Analysis Of The N-Word Within Hate Crimes Law, Shayne E. Jones, Gregory S. Parks

Shayne E Jones

On a 2005 summer morning, Nicholas “Fat Nick” Minucci (White) beat Glenn Moore (Black) with a baseball bat and robbed him. During the assault, Minucci repeatedly screamed the N-word. At trial, Minucci’s attorney argued that he had not committed a hate crime. The essence of the defense’s argument was that Minucci’s use of the N-word while assaulting and robbing Moore was not indicative of any bias or prejudice. The defense went on to indicate that Minucci had Black friends, was immersed in Black culture, and employed the N-word as part of his everyday vocabulary. Two Black men—Gary Jenkins (hip hop …

Human Rights And Gun Confiscation, David B. Kopel

David B Kopel

This Article addresses a human rights problem which has been generally ignored by the advocates of firearms confiscation: the human rights abuses stemming from the enforcement of coercive disarmament laws.

Part I conducts a case study of the U.N.-supported gun confiscation program in Uganda, a program which has directly caused massive, and fatal, violations of human rights. Among the rights violated have been those enumerated in Article 3 (“the right to life, liberty and security of person” ) and Article 5 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) of the Universal …

The Peculiar Story Of United States V. Miller

Brian L. Frye

This article provides a comprehensive history and interpretation of United States v. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It argues Miller adopts neither the individual nor the collective right theory of the Second Amendment. It suggests the Supreme Court’s pragmatic, deferential approach in Miller remains appropriate.

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Jessica Fink

In recent years, employees have turned with increasing frequency to the courts to redress alleged violations of their civil rights in the workplace, often bringing suits under laws such as Title VII of the Civil Rights Act of 1964. Indeed, employment discrimination claims consistently consume a substantial (and rising) portion of the federal court docket. In the four-plus decades since the passage of Title VII, however, the nature of workplace bias itself has changed, becoming more difficult to detect in many cases. Some employers, often with the help of counsel, have learned to finesse their workplace actions to avoid the …

Housingdiscrimination.Com?: The Ninth Circuit (Mostly) Puts Out The Welcome Mat For Fair Housing Act Suits Against Roommate-Matching Websites (Fair Housing Council Of San Fernando Valley V. Roommates.Com, Llc), Diane J. Klein, Charles Doskow

Diane J Klein

This Article analyzes the recent 9th Circuit decision in FHC v. Roommates.com, reversing and remanding to the district court after finding that § 203(c) of the Communications Decency Act does not provide immunity to housing websites under § 3604(c) of the Fair Housing Act (FHA). The Article argues that housing websites should be held to the same standard as other advertisers of residential real estate under the FHA, and that Roommates.com is a “content provider” and hence liable for violating the FHA by disseminating advertisements that demonstrate discriminatory preferences on the basis of race, age, religion, disability, etc. The Article …