Law Commons^™

Agency, Equality, And Antidiscrimination Law, Tracy E. Higgins, Laura A. Rosenbury

Laura A. Rosenbury

Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state. In this Essay, we do not enter this debate …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

Winston P Nagan

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Title Vii V. Seniority: The Supreme Court Giveth And The Supreme Court Taketh Away, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Congress intended to solve the widespread problem of nonegalitarian hiring practices by enacting title VII of the Civil Rights Act of 1964 (the Act), during the apogee of the civil rights era. The Act represented a national commitment to end discrimination and to promote equality in employment. The enactment of title VII spawned extensive commentary on the effect of facially neutral employment practices that perpetuated pre-Act discrimination. Particular controversy arose concerning the application of seniority rules to blacks in jobs or seniority units from which they previously had been excluded because of their race.

The problem of accommodating seniority systems …

Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf

Fatma E Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet the Board of Immigration Appeals (BIA) has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examining of the elements of the crime with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offense are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious …

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

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

School of Law Faculty Publications

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 …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

School of Law Faculty Publications

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

"You Miss 100% Of The Shots You Never Take": Virginia High School League's Policy Violates Title Ix By Preventing Transgender Student Athletes From Taking A Shot At Participating In Athletics, Sarah M. Jacques

Sarah M Jacques

No abstract provided.

Federal Programs And The Real Costs Of Policing, Rachel A. Harmon

Rachel A. Harmon

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs …

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

Darren L Hutchinson

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

An Americans With Disabilities Act Critique Of Advance Directive Override Provisions, Judy A. Clausen Professor

Judy A. Clausen Professor

This Article argues many mental health advance directive statutes violate the Americans with Disabilities Act (ADA). Advance directives empower people to determine care to be administered when they lack capacity to provide informed consent. General advance directives typically address end-of-life care. Mental health directives govern treatment administered during periods of incapacity caused by acute episodes. Because end-of-life decision-making is different than planning for episodic mental illness, half of the states have enacted separate mental health directive statutes. These specialized statutes often provide doctors more leeway to force treatment on a patient in contravention of a directive than do generic directive …

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Semantic Reversal: Individual, Person, Individualism, Individualization And Subject Of Fundamental Right, Brunela V. Vincenzi

Brunela V Vincenzi

Based upon the theory of justice, founded on reciprocal and cooperative recognition, this study seeks to demonstrate that there are alternative means of dispute resolution within the spheres of family and work, which produce binding decisions that are accepted by the parties to the conflict as fair. At the same time, it also seeks to demonstrate that certain conflicts cannot be withdrawn from the purview and judgment of the State Judiciary System, with the goal of reestablishing the confidence that individuals have in the decision-making system of the state legal system.

Scholars Of The Constitutional Rights Of Children (Amici Curiae), Tanya M. Washington

Tanya Monique Washington

My co-authors and I filed an amicus brief with the U.S. Supreme Court in Obergefell v. Hodges last month. Our first co-authored amicus brief was filed with the Supreme Court in U.S. Windsor in 2013, and it was cited by the Respondents in their brief to the Court. The Defense of Marriage Act's harmful impact on children in same-sex families was the focus of that brief, and the Court acknowledged those harms as relevant to its analysis of DOMA's constitutionality. Our brief was published in the Iowa Journal of Gender, Race and Justice.

In our amicus brief in Obergefell v. …

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

All Divergence Is Local: A Historical Reconceptualization Of Interest Convergence As A National Phenomenon Tempered By The Realities Of Local Racial Politics, Robert Parrish

Robert Parrish

No abstract provided.

Gentrification And Urban Public School Reforms: The Interest Divergence Dillema, Erika Wilson

Erika K. Wilson

Across the country cities are experiencing rapid increases in gentrification: the influx of middle-class, often white residents, into cities with large minority populations. In some gentrifying cities, significant numbers of white middle-class residents are enrolling their children in city public schools, reversing a long standing trend of white flight out of city schools. Local officials value the renewed interest in public schools by these residents because it represents an opportunity to keep them, and their tax dollars, from fleeing to the suburbs once they have school aged children. This Article chronicles the ways in which local officials in gentrifying cities …

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the petitioners …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

Harold A. McDougall III

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

Schuette, Facial Neutrality And The Constitution, Mark Strasser

Mark Strasser

Equal protection jurisprudence continues to evolve. The Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action expressly disavows that it is modifying the existing equal protection jurisprudence, while nonetheless employing an approach that had previously been rejected in a few different respects. As to whether the Court has radically altered the existing equal protection jurisprudence in any of these respects sub silentio or, instead, has simply suspended the accepted constitutional rules in this particular case, this remains to be seen.

This article discusses the developing equal protection jurisprudence with respect to racial classifications, and then focuses on Schuette …

The Future Of Voting Rights In Indian Country Following Shelby County And Inter Tribal Council Of Arizona, Jeanette Wolfley

Jeanette Wolfley

No abstract provided.

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

Note: Unpaid Interns & The Practice Of Unprotected Working: Building From A History Of Learning On The Job, Troy D. Warner

Troy D Warner

Student interns are provided protection from gender discrimination and sexual harassment in their student capacity by Title VII of the Civil Rights Act of 1964 (CRA), and as employees by Title IX of the CRA. However unpaid student interns are neither considered students nor employees, and thus slip through the cracks of coverage provided by Titles VII & IX. They are working unprotected by the law from sexual harassment and sexual discrimination. The Department of Labor has two classifications created by regulations, which provide protections to workers not legally employees, just as unpaid interns are not employees.

The Department of …

Studying Is Dangerous? Possible Federal Remedies For Study Abroad Liability, Robert J. Aalberts, Chad G. Marzen, Darren A. Prum

Chad G. Marzen

Every year, thousands of U.S. students study abroad for academic credit. Study abroad programs have traditionally garnered strong congressional support, and proponents of the programs emphasize the educational, cultural, and diplomatic benefits from study abroad experiences.

Despite the many benefits of study abroad programs, risks are incurred overseas. In the past several years, a number of incidents have resulted in which students studying abroad have not only incurred physical harm, but in some instances have died while enrolled in a study abroad program. The current liability standards governing study abroad programs are murky. This article not only discusses the various …