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No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
Julie A. Nice
This article traces how the Supreme Court has deconstitutionalized Poverty Law by four departures from normal constitutional doctrine: first, by categorical immunization of “social or economic legislation”; second, by circumvention of normal suspect class or classification analysis; third, by application of rationality review in a reflexive manner to uphold governmental regulation; and fourth, by ratcheting down from the heightened scrutiny normally used for protection of established fundamental rights. In particular, she explores the historical emergence of judicial deference for “social or economic legislation,” and finds that Justice Douglas, who coined the phrase, specifically rejected deference for laws that disadvantaged poor …
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 …
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 …