Law Commons^™

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

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.

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 …

The Second Amendment: Scope And Criminological Considerations, Clayton E. Cramer

Clayton E Cramer

The recent decision D.C. v. Heller (2008) has opened up the question of what the Second Amendment protects. What “arms” are protected? What classes of persons may be properly prohibited from being armed?

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

Education For Judicial Aspirants, Keith Fisher

Keith R. Fisher

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to a lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between the two activities increasingly large. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically …

Rethinking Novotny In Light Of United Brotherhood Of Carpenters & Joiners V. Scott: The Scope And Constitutionally Permissible Periphery Of Section 1985 (3), Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

Trampling Whose Rights? Democratic Majority Rule And Racial Minorities: A Response To Chin And Wagner, Taunya Lovell Banks

Taunya Lovell Banks

Gabriel Chin and Randy Wagner argue us that there were black majorities and pluralities in Deep South states during the Reconstruction era who were consciously disenfranchised by private and public entities, including the U.S. Supreme Court because of fears of black majority rule and the Court should take this history into account and recognize the lingering effects of this historic disenfranchisement on black Americans. This essay responds to their argument, contending that fear of black majority rule never was the sole reason for the disenfranchisement of black majorities and pluralities in the Deep South, rather the problem has always been …

Contested Terrains Of Compensation: Equality, Affirmative Action And Diversity In The United States, Taunya L. Banks

Taunya Lovell Banks

No abstract provided.

Discretionary Justice And The Black Offender, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

Manipulating Andhiding Terrorist Content On The Internet: Legal And Tradecraft Issues, Jack F. Williams

Jack F. Williams

The global war on terror (“GWOT”) is being fought on many levels. In addition to traditional terror and counterterror activity, both sides are engaged in a public relations and propaganda war, employing the media, willingly and unwillingly, to support their positions. Hovering over these war campaigns are information technologies, which include the Internet. This article provides an introduction to various online content concealing practices that have been employed by those seeking to conceal or limit access to information on the Internet, including terrorist organizations. Further, there is a discussion on tracking and monitoring of website visitors. After reviewing open source …

“The Longest Journey, With A First Step”: Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul Secunda

Paul M. Secunda

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest form. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Habitations Of Cruelty: Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Public Employee Speech, Categorical Balancing And Section 1983: A Critique Of Garcetti V. Ceballos, Sheldon Nahmod

Sheldon Nahmod

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Safeguarding Fundamental Rights: Judicial Incursion Into Legislative Authority, Alexander Tsesis

Alexander Tsesis

The Supreme Court recently limited Congress’s ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states’ sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court’s restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that …

All The World’S A Stage, But Admission Is Limited: The Need For A Standardized Ticketing Policy For Patrons With Disabilities, Deborah Brightman

Deborah Brightman Morse

Live events, including theater, concerts, and athletics, are a popular form of entertainment in the United States. Many of these events are open to the public through general ticket sales which tend to function through basic sales practices. However, these practices often do not consider patrons with disabilities who require additional accommodations in order to enjoy live events. For almost twenty years, entertainment arenas, theaters, and stadiums have been actively attempting to create more accessible venues for patrons with disabilities in an effort to comply with the Americans with Disabilities Act. Nonetheless, patrons with disabilities still encounter accessibility barriers – …

Asimplify You, Classify You@: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Michael L Perlin

Abstract:

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

1. The need to insure that all children receive adequate education

2. The need to insure that the cure is not worse than the illness (that is, …

Survey Of The Federal Government On Supervisor Practices In Employment Of People With Disabilities, Susanne M. Bruyere, William Erickson, Richard L. Horne

Susanne Bruyère

In 1999, the Presidential Task Force on the Employment of Adults with Disabilities (PTFEAD) funded Cornell University to conduct a survey of federal sector HR and EEO representatives regarding their experience implementing the employment disability nondiscrimination requirements of the Americans with Disabilities Act of 1990(ADA) and the Rehabilitation Act of 1973, as amended. One of the recommendations from this research was to conduct a follow-up study of federal agency supervisors and managers about their experience in accommodation and employment of persons with disabilities in the federal sector, and in addition to inquire about their awareness of the series of Executive …

Chapman Dialogues: Same Sex Marriage - Response To Professor Eskrdige, Lawrence Rosenthal

Lawrence Rosenthal

This essay, a revision of remarks originally delivered as part of the Chapman Dialogues series at Chapman University School of Law, is a response to the remarks of Professor William Eskridge of Yale Law School making the case for the recognition of a constitutional right to same-sex marriage. The essay argues that the judicial establishment of a right in the face of deeply entrenched social norms, prior to the time at which the political groundwork necessary for the enforcement of the right has been laid, risks a powerful and ultimately counterproductive backlash.

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons From The Past, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

Hostile Public Accommodations Laws And The First Amendment, Daniel Koontz

Daniel Koontz

State and municipal Human Rights Commissions have recently begun aggressively interpreting public accommodations laws to punish the speech of proprietors of bars, restaurants, country clubs, and other public accommodations. The theory is that if a proprietor says something to a customer—or even displays artwork, decorations, or signs—that could potentially offend the customer based on race, religion, sex, or ancestry, the proprietor has created a “hostile environment” which denies the customer “full and equal enjoyment” of the public accommodation.

Proprietors can face liability even in the absence of allegations that they refused service to a customer. In one case, a human …

Yick Wo Re-Revisited: Nonblack Nonwhites And Fourteenth Amendment History, Thomas W. Joo

Thomas W Joo

The 1886 Supreme Court case Yick Wo v. Hopkins is often viewed as a precursor of the racial civil rights era represented by Brown v. Board of Education. In fact, the case was primarily about economic rights. In a new article, Unexplainable on Grounds of Race: Doubts About Yick Wo, forthcoming in the Illinois Law Review, Professor Gabriel Chin argues that Yick Wo "is not a race case at all." I argue that it is a "race case" because the Court’s use of the Fourteenth Amendment to vindicate economic rights necessarily entangled economic rights with race--in an ultimately pernicious way. …

Multi-Hued America: The Case For The Civil Rights Movement's Embrace Of Multiethnic Identity, Kamaria A. Kruckenberg

Kamaria A Kruckenberg

This article explores multiethnic categorization, given the Office of Management and Budget’s (OMB) decision to allow multiple-race identification on the 2000 Census and in all federal data collection. This decision has also prompted several states to reconsider how they categorize multiethnic individuals. Such classifications are not just about titles—they affect everything from higher education admissions policies to compliance with federal housing laws. In this article, I give a brief history of multiethnic classification in American law since colonization. Then I address a variety of critiques of the multiracial label, such as the fear of numerical dilution of minority numbers, the …

Transforming Transsexual And Transgender Rights, L. Camille Hebert

L. Camille Hebert

Transsexual and transgendered individuals receive only sporatic and non-comprehensive protection against discrimination in employment. Most efforts to extend that protection, through avenues of protection as a disability or enacting legislation extending protected class status, have been unsuccessful or incomplete. More successful in recent years has been to extend protection against sexual stereotyping to transsexual and transgendered individuals. Least successful has been the argument that discrimination against transsexual and transgendered individuals is itself prohibited sex discrimination. This article argues that in fact the structure to protect transsexual and transgendered individuals from discrimination is already in place through federal and state statutes …

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

Martin H. Malin

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

Academic Freedom And The Post-Garcetti Blues, Sheldon Nahmod

Sheldon Nahmod

No abstract provided.