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Full-Text Articles in Law
Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene
Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene
Faculty Scholarship
In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,
Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene
Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene
Faculty Scholarship
Could so many well-established scholars be wrong? Is it possible that Bush v. Gore is defensible, after all? The two pillars of the decision-the Equal Protection Clause justification for the merits holding and the "safe harbor" remedial ruling - indeed seem weak. The alternative merits view-that the Florida Supreme Court had engaged in statutory amendment under the guise of statutory interpretation, thus violating Article II of the federal Constitution-runs aground against the plausible (albeit not necessarily correct) readings of the state high court. If one agrees that these merits and remedial arguments are indefensible, then mustn't one agree with the …
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Faculty Scholarship
The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …
Intent And Incoherence, Sheila R. Foster
Intent And Incoherence, Sheila R. Foster
Faculty Scholarship
In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …
Intent And Incoherence, Sheila R. Foster
Intent And Incoherence, Sheila R. Foster
Faculty Scholarship
In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …