Law Commons^™

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

Oped: Breaking Uf Racial Barriers, Pedro A. Malavet

Pedro A. Malavet

An OpEd describing the legal and personal struggle to desegregate the University of Florida College of Law on the 50th Anniversary of the matriculation of the first African American Student, George Starke. The essay describes how Virgil Hawkins was the last lead plaintiff in the litigation that produced Mr. Starke's matriculation and led to the graduation of W. George Allen.

Critical Error, Bryan L. Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …

Critical Error, Bryan L. Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …

A Fighting Chance: An Analysis Of The Role Of Social Science Evidence In Higher Education Affirmative Action And K-12 Voluntary Desegregation Cases, Crystal Gafford Muhammad

Crystal Gafford Muhammad

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 is of limited effect. In fact, I find judicial political philosophy is the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or even persuasive, but whether it is useful in politically contentious cases. It …

Resisting Guantanamo: Rights At The Brink Of Dehumanization, Muneer I. Ahmad

Muneer I Ahmad

The Supreme Court’s June 2008 decision in Boumediene v. Bush, granting constitutional habeas corpus rights to terrorist suspects at Guantánamo Bay, appeared to usher in a rights moment in which legal advocacy achieved transformative results. But the history of rights-based litigation at Guantánamo suggests that such victories often are fleeting, with court pronouncements failing to produce the meaningful change—freedom of prisoners, closure of Guantánamo—expected of such landmark decisions. This reflects not simply a failure of the courts, but a limitation of rights in the face of extreme state violence. This Article argues that the work of rights—and of lawyers—at Guantánamo …

Abandon All Hope Ye That Enter: Title Vi, Equal Protection, And The Divine Comedy Of Environmental Justice, Carlton Waterhouse

Carlton Waterhouse

Dante’s Alighieri’s epic poem the Divine Comedy begins with the journey of the author and his guide Virgil down through the depths of Hell. Early in their trek, Dante finds the phrase “Abandon All Hope Ye That Enter” inscribed above the gates of Hell. Drawing on this classic work, the article analogizes Dante’s passage through Hell with the experience of communities relying on civil rights law to address the disparate racial effects of environmental decisions. The article begins with an examination of the first administrative complaint filed with the Environmental Protection Agency alleging racial discrimination in environmental permitting in 1992 …

United States V. Hatahley: A Legal Archaeology Case Study Of Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

When Churches Divide: On Neutrality, Deference, And Unpredictability, Mark Strasser

Mark Strasser

Predictions that the Anglican Communion would be torn asunder have proven false, at least for now. Nonetheless, continuing disagreements about whether Bishop Gene Robinson should be a bishop and about whether same-sex unions should be recognized provide an ever-present reason for a possible break within that Communion. Were there such a break, there might well be numerous suits regarding the ownership of various properties.

Historically, churches have split off from their denominational affiliations for a whole host of reasons including disagreements over property ownership, church leadership, or member equality. When such divisions take place, the ownership of particular buildings or …

Voter Turnout: From Cost To Cooperation, Jason B. Marisam

Jason B Marisam

Political scientists have repeatedly concluded that state efforts to increase voter turnout will continue to flounder, so long as those efforts remain focused on lowering the already low cost of voting. Accordingly, this Article argues that future efforts to achieve consistently higher and widespread turnout among all demographics must consider other determinants of voter behavior. The primary goal of the Article is to craft a framework based on a thorough understanding of voter motivation and behavior that helps conceptualize and analyze public efforts to increase voter turnout. The framework fills a gap in the literature by drawing from a range …

The New Boys: Women With Disabilities And The Legal Profession, Carrie G. Basas

Carrie G Basas

This essay fuses the fields of law, feminist theory, and cultural studies to examine the status of women attorneys with disabilities. It is the first study of its kind in the United States. The author conducted an empirical, qualitative, and ethnographic study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results show an alarming trend toward disabled women attorneys self-accommodating in the workplace, rather than enforcing their employment rights under the Americans with Disabilities Act. Relying on …

The Irresistible Force, Bruce A. Antkowiak

Bruce A Antkowiak

This article calls for the reformation of the doctrine that permits a legislature to assign to a defendant the burden of proving an issue in a criminal case to avoid conviction. It argues that such a doctrine violates the basic norms of the Constitution and the “jury right” that is at its core. That right includes the institution of the jury trial, the presumption of innocence and the burden on the government to prove its case beyond a reasonable doubt. It is violated by such a burden assignment just as the Apprendi line of cases holds that the shifting of …

Public Awareness Of Human Rights: Distortions In The Mass Media, Eric Heinze, Rosa Freedman

Prof. Eric Heinze, Queen Mary University of London

This article examines distortions of human rights reporting in the mass media. We examine human rights coverage in four of the most influential newspapers, two from the US and two from the UK. The US papers are The New York Times and The Wall Street Journal. The British papers are The Financial Times and The Guardian.

Most current scholarship on international human rights draws its information from specialized sources, such as the published reports of intergovernmental and non-governmental organisations. Wholly absent has been any systematic study of the mass media. To date, no one has examined the dominant media agencies, …

Torch (September 2008), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Overreaction Then (Korematsu) And Now (The Detainee Cases), Fritz Snyder, Geri Fox

Geri Fox

Overreacting to tragic events leads to even more tragedy. When it is the government which overreacts, individual constitutional rights can vanish. The fear, anger, and patriotism engendered during a war or by a terrorist attack can Aundermine the capacity of individuals and institutions to make clearheaded judgments about risk, fairness, and danger .... Reason and logic vanish. It is difficult to make calm, balanced decisions in a state of personal anxiety, outrage, or passion. Overreaction occurs, and individual rights disappear. Even the United States Supreme Court can get swept away. This article uses the Korematsu case as a case study …

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Matthew I Hall

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the “cases or controversies” clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model—which was first adopted by the Supreme Court less than 45 years ago—fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the “cases or controversies” clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve mootness issues …

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

Recognizing Marriage, William J. Rich

William Rich

Recognizing Marriage Abstract Two adults living in the United States already have the right to form enduring relationships, to cohabit, and to identify themselves as married. The path towards full social and legal recognition of marriage for individuals of the same sex, however, must still be developed and will involve multiple steps requiring careful navigation. That path begins with broadening social acceptance, including extension of employment benefits, acceptance within progressive social and religious organizations, and support for children living with same sex couples. Legal acceptance will inevitably follow these changes in society, but in a majority of states, significant road …

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

(How) Does Unconscious Bias Matter?: Law, Politics, And Racial Inequality, Richard Banks, Richard Thompson Ford

R. Banks

During the past several years, psychological research on unconscious racial bias has grabbed headlines, as well as the attention of legal scholars. The most well-known test of unconscious bias is the Implicit Association Test (IAT), a sophisticated and methodologically rigorous computer-administered measure that has been taken by millions of people, and featured in major print and broadcast media. Its proponents contend that the IAT reveals widespread unconscious bias against African-Americans, even among individuals who believe themselves to be free of racial bias.

In fact, however, the findings of the IAT are ambiguous. The test could just as plausibly be thought …

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

It's Not Just Shopping, Urban Lofts, And The Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts, Todd Brower

todd brower

Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and …

Social Cognition 'At Work:' Schema Theory And Lesbian And Gay Identity In Title Vii, Todd Brower

todd brower

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 …

An Empirical Examination Of The Impact At The Polls Of Indiana's Voter Identification Law, Michael J. Pitts

Michael J. Pitts

No abstract provided.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole' Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.