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Full-Text Articles in Law
The Regulation Of Race In Science, Kimani Paul-Emile
The Regulation Of Race In Science, Kimani Paul-Emile
Faculty Scholarship
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …
Problem Of Equality In Takings, The , Nestor M. Davidson
Problem Of Equality In Takings, The , Nestor M. Davidson
Faculty Scholarship
The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …
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 …