Law Commons^™

The Citizenship Dialectic, Ediberto Roman

ExpressO

The article contextualizes the ongoing debate concerning civil rights in a post- September 11th world, and its effects on how we ought to conceptualize membership in our political community. This article is unique in that it situates the importance of citizenship in the larger debate, and draws meaningful comparisons to the problematic history of the construct over the life of our nation. My thesis is that despite the popular belief that citizenship connotes an equality of status, in reality, citizenship has always contained aspects that foster inequality and lead to exclusion. These are not new worries for a post-September 11th …

The Law Of Unintended Consequences: The Far-Reaching Effects Of Same-Sex Marriage Ban Amendments, C. Susie Lorden

ExpressO

In 2004, thirteen states passed same-sex marriage ban amendments in response to a Massachusetts ruling from the previous year that sanctioned marriage for gay couples. Most of the amendments contained two prongs that defined marriage and also prohibited legal recognition of unmarried relationships in an attempt to avoid marriage substitutes, such as civil unions.

These amendments not only blatantly discriminate against same-sex couples by barring them from marriage, but the amendments also insidiously cause further damage by using undefined and ambiguous language capable of discriminating against gays and lesbians in ways not admitted by the proponents and not intended by …

Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

ExpressO

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

The Small Firm Exemption And The Single Employer Doctrine In Employment Discrimination Law, Richard R. Carlson

ExpressO

The small firm exemption is a provision of Title VII and the other major federal employment discrimination laws that exempts very small firms from coverage as “employers.” Under the Title VII version of the exemption, for example, an employer is exempt as long as it employs no more than fourteen employees. However, a small firm might be affiliated or integrated with other firms, which collectively employ more than the number of employees required for coverage. The single employer doctrine is a rule for treating separately organized firms as if they were one employer, for purposes of meeting the statutory threshold …

The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles

ExpressO

Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …

Civil Liberties V National Security In Times Of Crisis: The Past Use Of Internment Without Trial In The United States And The United Kingdom And The Lessons For The Ongoing 'War On Terror.' , Richard D. Donald

ExpressO

History teaches that, in time of crisis, we have often sacrificed fundamental freedoms unnecessarily. The Executive and Legislative Branches, reflecting public opinion formed in the heat of the moment, frequently have overestimated the need to restrict civil liberties. This has been especially true in regards to internment without trial. Neither novel nor normal, internment is an emergency measure which has regularly been employed in times of national crisis. Through an examination of two historical models this project aims to identify some the difficulties associated with the application of a policy of internment. Given it’s ongoing use around the world in …

The Day Laborer Debate: Small Town, U.S.A. Takes On Federal Immigration Law Regarding Undocumented Workers, Margaret B. Hobbins

ExpressO

Herndon, Virginia is the latest example of small town immigration issues exploding into the national debate on illegal immigration. This four-square mile town, population 22,000, was propelled into the national spotlight after a dramatic public reaction to Mayor Michael O’Reilly’s proposal to construct a hiring site for day laborers. Three months before the center even opened its doors, Herndon and Fairfax County faced a law suit challenging the legality of funding a day labor center that would inevitably extend its services to undocumented immigrants.

Small towns, adjusting to significant increases in the immigrant worker population, have become a new battlefield …

The Anomaly Of Guantanamo: Two Innocent Men Caught In A Devastating Legal Limbo, Lauren S. Elfant

ExpressO

No abstract provided.

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

ExpressO

The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on account of protected characteristics such as race and sex. Mixed-motive problems arise where the proponent of a strike confesses to have been motivated by a combination of proper and improper purposes. In other contexts, so-called “mixed-motive analysis,” which provides the challenged party an opportunity to prove that the “same decision” would have been made absent the improper motive, has been permitted. The United States Supreme Court has not yet ruled, however, on whether “mixed-motive” analysis is consistent with the governing framework set forth in Batson v. …

Any Place For Ethnicity? The Liberal State And Immigration, David Abraham

ExpressO

When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn’T Matter?, Preston C. Green

ExpressO

This article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in the KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how the KCMSD desegregation plan has been …

Latino Inter-Ethnic Discrimination And The "Diversity Defense", Tanya K. Hernandez

Rutgers Law School (Newark) Faculty Papers

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups will continue to be necessary but will become even more complex. The growing scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the individuated context of racial and ethnic discrimination claims. In other words, what will anti-discrimination litigation look like when all the parties involved are non-White but a racial hierarchy is alleged to exist …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

ExpressO

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or …

When 2 Or 3 Come Together, Tracey L. Meares

ExpressO

This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago’s West Side. Strikingly, the local police district’s commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, …

Here Is The Church, Now Who Owns The Steeple? A Revised Approach To Church Property Disputes, Adam E. Lyons

ExpressO

This article reviews two approaches to the implementation of neutral principles of law – the constitutionally permissible method of resolving property disputes between bodies in a religious hierarchy. Though both approaches may be valid, the formal title approach, as implemented by the Pennsylvania Supreme Court in Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, leads to problems in application that have been rectified by that court’s more recent decision in In re St. James the Less. It is the contention of this article that future courts and practitioners facing church property disputes can draw guidance from the St. James decision when …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Multiracial Identity And Affirmative Action, Nancy Leong

ExpressO

No abstract provided.

Come Down & Make Bargains In Good Faith: The Application Of 42 U.S.C. § 1981 To Race & National Origin Discrimination In Retail Stores, Charlotte H. Sanders

ExpressO

Plaintiffs who are harassed or otherwise discriminated against in retail stores on the basis of their race or national origin have few options for legal redress. The major federal public accommodations statute, Title II of the Civil Rights Act of 1964, does not cover retail stores. In addition, while some state public accommodations statutes explicitly ban discrimination in retail stores, many others do not. As a result, plaintiffs who have been discriminated against in retail stores have turned to the contracts clause of 42 U.S.C. § 1981.

Section 1981, a Reconstruction-era civil rights statute, guarantees to all people within the …

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

ExpressO

With the Declaration of Independence supplying the inspiration, the Framers created a constitutional template for a nation the likes of which the world had never seen – a nation in which government would serve, instead of rule, the people; and one in which the people would enjoy a freedom approximating as nearly as possible that which occurs in a state of nature itself. Government would exercise its necessary, limited role, and otherwise leave the people alone - with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do. …

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

ExpressO

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: “Societies that trade liberty for security end often with neither.” Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism – including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government’s actions in fighting terrorism. The thesis throughout …

The Expressive Impact Of Patents, Timothy R. Holbrook

ExpressO

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical.

There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create …

The Bureaucratic Due Process Of Government Watch Lists, Peter M. Shane

ExpressO

Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001,. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate …

An Analysis Of The Contemporary Role Of Social Science In The Law: The Case Of Race Conscious Admissions, Crystal R. Gafford Muhammad

ExpressO

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence does not affect the outcomes of court cases involving normative subject matters, such as those involving race. I find judicial political affiliation to be the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or …

Statutory Interpretation, Constitutional Limits, And The Dangers Of Collaboration: The Ironic Case Of The Voting Rights Act, Luis Fuentes-Rohwer

ExpressO

The Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the “goddamnedest toughest” legislation possible. But the President and the 89th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the …

When Hope Lies With The Courage Of A Cowardly Lion: Social Science, Race, And Judicial Political Affiliation In Contemporary Race Conscious Admissions Cases, Crystal R. Gafford Muhammad

ExpressO

This paper employs the critical race theoretical frame of the price of racial remedies, using statistical analysis to document the influence of judicial political affiliation in the outcomes of contemporary race conscious admissions cases. The analyses employed support the conclusion that the outcomes of these cases rest on the political affiliations of the judges, confirming the terse Critical Legal Studies (CLS) critique that “its all political”. Going beyond the CLS critique and centering my work in critical race theory, I ground my findings in Derrick Bell’s price of racial remedies framework. What is most interesting here is that in the …