Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Constitutional law (3)
- Welfare law (3)
- Discrimination (2)
- Equal protection (2)
- Equality (2)
-
- Outlier (2)
- Poverty law (2)
- Animus (1)
- Christian Legal Society v. Martinez (1)
- Class (1)
- Co-Constitutive (1)
- Constitutional Interpretation (1)
- Constitutional Law (1)
- Deregulation (1)
- Equal Protection (1)
- Feminization of poverty (1)
- First amendment (1)
- Free association (1)
- Free exercise of religion (1)
- Free speech (1)
- Fundamental right (1)
- Gay Rights (1)
- Gender law (1)
- Involuntary servitude (1)
- Liberty (1)
- Marriage (1)
- Mutually Constitutive (1)
- New Private Law (1)
- Obergefell (1)
- Plyler (1)
Articles 1 - 10 of 10
Full-Text Articles in Law
Conjuring "Equal Dignity": Mapping The Constitutional Dialogue To And From Same-Sex Marriage, Julie Nice
Conjuring "Equal Dignity": Mapping The Constitutional Dialogue To And From Same-Sex Marriage, Julie Nice
Julie A. Nice
Whither The Canaries: On The Exclusion Of Poor People From Equal Constitutional Protection, Julie Nice
Whither The Canaries: On The Exclusion Of Poor People From Equal Constitutional Protection, Julie Nice
Julie A. Nice
While neoliberal orthodoxy posits that a rising tide of economic growth will lift all boats, a sea change began in the United States around 1970 that marked the end of our social commitment to shared prosperity and the beginning of the steady widening of income inequality to its current historic level. In response, poor people might have been expected to turn to the courts for protection against the perennially pervasive prejudice against them, especially considering their relative—if not absolute—lack of political clout. But the Supreme Court had virtually closed the courthouse door in Dandridge v. Williams, affording to poor people …
How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie Nice
How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie Nice
Julie A. Nice
Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific …
Promoting Marriage Experimentation: A Class Act?, Julie Nice
Promoting Marriage Experimentation: A Class Act?, Julie Nice
Julie A. Nice
For nearly sixty years, the federal government maintained a policy of preventing or discouraging receipt of welfare by two-parent families. In its massive overhaul of welfare in 1996, Congress reversed course and declared its new policy was to promote marriage for welfare recipients. With great fan fare, the Bush Administration pledged $1.5 billion to support a healthy marriage initiative for recipients of Temporary Assistance to Needy Families. As Professor Nice reveals, however, the marriage promotion policy is not what it seems to be. For example, in the 2005 Deficit Reduction Act, Congress quietly reinstated a marriage penalty by authorizing sanctions …
Partiality, Julie Nice
Partiality, Julie Nice
Julie A. Nice
This essay is the introduction for a Symposium on Class in LatCrit: Theory and Praxis in a World of Economic Inequality. Professor Nice describes the symposium papers (by Kendal Broad, Lisa Sun-Hee Park, Athena Mutua, and Laura Padilla) as applying various critical tools to examine how scholars study poverty and especially how the construct of “the feminization of poverty” isolates gender while leaving out other experiences of race, immigration status, sexual orientation, parental status, age, ability, and class. While she argues that the feminization of poverty construct itself emerged as a critique of how gender had been ignored in the …
Equal Protection’S Antinomies And The Promise Of A Co-Constitutive Approach, Julie Nice
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 …
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 …
The New Private Law: An Introduction, Julie Nice
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 …
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
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 …