Law Commons^™

Transforming Social Inquiry, Transforming Social Action: New Paradigms For Crossing The Theory/Practice Divide In Universities And Communities, Francine Sherman,, William Torbet,

Francine T. Sherman

This edited volume describes models of interdisciplinary collaboration in which universities and communities work together on participatory action research and social action. The university and community partnerships described in this volume are in the areas of education, law, psychology and organizational development and all share a vision of universities engaged collaboratively with communities. The volume is a resource for foundations, government and college and university administrators interested in exploring approaches to teaching and research that take students and faculty into communities for action research and ethical reflection.

Equal Protection’S Antinomies And The Promise Of A Co-Constitutive Approach, Julie Nice

Julie A. Nice

This article explores how a central insight of Law and Society scholarship – that law and society are mutually constitutive – explains and informs Equal Protection jurisprudence. Professor Nice describes the state of equal protection discourse as caught in perpetual antinomic debates, with courts typically endorsing the more conservative alternative within such debates, including: (1) adopting assimilation (not anti-subordination) as the goal; (2) treating subordinated persons the same as (not different than) dominant persons; (3) looking backward toward remediation (not forward toward substantive equality); (4) requiring blindness (not consciousness) of the relevant trait; (5) focusing on the classifying trait (not …

Thinking Critically About Equality: Government Can Make Us Equal, Robert L. Hayman, Nancy Levit

Robert L. Hayman

No abstract provided.

The Emerging Third Strand In Equal Protection Jurisprudence: Recognizing The Co-Constitutive Nature Of Rights And Classes, Julie Nice

Julie A. Nice

This article posits the emergence of a third strand in Equal Protection jurisprudence, one that expands conventional two-strand Equal Protection analysis, which applies heightened scrutiny if a right is fundamental or a class is suspect by treating the interaction between rights and classes as mutually constitutive. This development Professor Nice closely examines a prominent trilogy of “outlier” Supreme Court decisions, Romer v. Evans, Plyler v. Doe, and M.L.B. v. S.L.J., and argues these decisions effectively endorsed a co-constitutive understanding to justify the invalidation of governmental discrimination. In each decision, the Court departed from its conventional focus on a fundamental right …

Ignoring The Sexualization Of Race: Heteronormativity, Critical Race Theory And Anti-Racist Politics, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Hutchinson

Darren L Hutchinson

A Model State Act To Authorize And Regulate Physician-Assisted Suicide, Charles Baron, Clyde Bergstresser, Dan Brock, Garrick Cole, Nancy Dorfman, Judith Johnson, Lowell Schnipper, James Vorenberg, Sidney Wanzer

Charles H. Baron

Despite laws in many states prohibiting assisted suicide, an unknown but significant number of people each year commit suicide with the aid of a physician. In recent years, the phenomenon of physician-assisted suicide has attracted greater attention as physicians have openly risked prosecution to shed light on the subject, advocates have raised a series of legal challenges to laws banning assisted suicide, and a federal judge has struck down the nation's first statute allowing physicians to assist patients in suicide. In this Article, nine authors from the fields of law, medicine, philosophy and economics propose a comprehensive statute to permit …

The New Private Law: An Introduction, Julie Nice

Julie A. Nice

This essay is an introduction to a Symposium on The New Private Law. Professor Nice defines New Private Law as including deregulation, decentralization, privatization, and contractualization, and as reflecting a normative regime that both recognizes a distinction between public and private domains and prefers the ordering of the private market to that of public decision-makers. She argues the preference for the private domain seems, at least, to tolerate inequality, and at worst, to reify existing power hierarchies. At the specific level, she describes the debate over privatization of welfare, with proponents claiming it costs less because of greater flexibility and …

Uncertain Privacy: Communication Attributes After The Digital Telephony Act, Susan Freiwald

Susan Freiwald

This article argues that the coming tide of electronic Federal law protects the privacy of transmitted communications under a two-tiered system. The actual contents of communications occupy the first tier, where they enjoy fairly effective protection against disclosure. Communication attributes encompass all of the other information that can be learned about a communication, such as when and where it occurred, to whom and from whom it was sent and how long it lasted. They occupy a lowly second tier, where the protections against disclosure are weak, ambiguous and in some cases non-existent. This bifurcated system becomes increasingly untenable as advances …

Making Conditions Constitutional By Attaching Them To Welfare: The Dangers Of Selective Contextual Ignorance Of The Unconstitutional Conditions Doctrine, Julie Nice

Julie A. Nice

This article examines the lack of judicial consistency in applying the Unconstitutional Conditions doctrine with regard to the same constitutional guarantee but involving different public benefits. Professor Nice posits that the courts frequently apply a lower level of scrutiny when conditions are attached to welfare benefits than when conditions are attached to other types of government benefits. She specifically examines this inconsistency among decisions involving Free Exercise and Takings. She shows that the Supreme Court has reduced its regular level of heightened scrutiny and instead applied Dandridge-style deference to uphold welfare conditions. For example, in a series of free exercises …

Welfare Servitude, Julie Nice

Julie A. Nice

In Welfare Servitude, Professor Nice considers whether mandating work as a condition for receiving welfare violates the Thirteenth Amendment’s prohibition of involuntary servitude and also explores the recurring intersection between race and class. She first describes the redoubling of efforts to increase enforcement of welfare work requirements once racial minorities were no longer excluded from receiving welfare benefits. Next she analyzes judicial decisions construing what constitutes involuntary servitude, including historic cases addressing indentured servitude, the padrone system, peonage, and the surety system, as well as modern cases challenging various welfare work requirements. Professor Nice distills three doctrinal types of involuntary …

The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles Baron

Charles H. Baron

In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Prayer In The Public Schools, Lawrence A. Hamermesh, Jack B. Blumenfeld

Lawrence A. Hamermesh

No abstract provided.

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Equality And Health, Michael Meltsner

Michael Meltsner

This article describes civil rights litigation over discrimination in health care in the 1960's. As a consequence of Title VI of the Civil Rights Act of 1964 enforcement shifted to federal regulators whose performance is measured and evaluated.