Law Commons^™

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Slow Demise Of Race Preference, Mark S. Brodin

Mark S. Brodin

This article traces the origins of affirmative action, its initial success, and the Reagan Administration's efforts to end it, which only recently have come to fruition with Fisher v. University of Texas and Shuette v. Coalition to Defend Affirmative Action.

Latino Workers And Human Rights In The Aftermath Of Hurricane Katrina, Laurel E. Fletcher, Phuong Pham, Eric Stover, Patrick Vinck

Eric Stover

No abstract provided.

Introduction To The Bill Of Rights At 200 Years: Bicentennial Perspectives, Rodney A. Smolla

Rod Smolla

No abstract provided.

Preserving The Bill Of Rights In The Modern Administrative-Industrial State, Rodney A. Smolla

Rod Smolla

No abstract provided.

Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel Margalit

Hezi Margalit

The dilemma of scarce medical resources is deeply rooted in the ancient mankind history, but it has been accelerated in the modern era with the appearance of the bio-medical innovations. This acute dilemma is relevant to all the western developed states, include Israel. Nevertheless, in one field there is the notion that Israel has unlimited medical resources – the fulfillment of its citizen's procreation and parenthood rights. Thus, for sociological, demographical, religious and security reasons the State of Israel invests a vast amount of money to develop and use the various fertility treatments. Israel, today, has the highest per capita …

Background Primer For Discussion On Diversity Within The Legal Profession, James M. Donovan

James M. Donovan

Despite its easy use in ordinary conversation, the details of what is meant when a speaker raises questions relating to “diversity” can be more complicated that they at first appear. The materials included here seek to map the more predominant landmarks on that intellectual landscape.

Constitutionalism And The Extreme Poor: New-Dred Scott And The Contemporary "Discrete And Insular Minorities", John A. Powell

john a. powell

This symposium issue addresses a range of questions concerning the Constitution and the poor. In this Essay, I will share some initial thoughts responsive to what has already been presented in this issue of the Drake Law Review and what was discussed during the symposium, and then I will turn to the question at hand and attempt to introduce a few new ideas into the discussion. First, I will address an issue raised by Mr. Shapiro. When I posed the question to him regarding which period, in his view, best represented an appropriate constitutional interpretation and understanding, he answered with …

How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin M. Clermont, Stewart J. Schwab

Stewart J Schwab

This article presents the full range of information that the Administrative Office’s data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants …

Maximizing Inclusionary Zoning’S Contributions To Both Affordable Housing And Residential Integration, Tim Iglesias

Tim Iglesias

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning …

There Goes The Neighborhood: Florida's Crackdown On Adverse Possession In The Wake Of The Foreclosure Crisis, Phillip V. Urban

Phillip V Urban

An examination of the creative use of adverse possession in Florida following the foreclosure crisis, and the State's heavy-handed reaction to the practice.

Rights, Privileges, And The Future Of Marriage, Adam Macleod

Adam MacLeod

On the eve of its final triumph, has the cause of marriage equality fallen short? This essay discusses persistent differences in the incidents that attach to same-sex marriages versus man-woman marriages. It examines these in light of the distinction between fundamental rights and concessions of privilege in marriage law, and in common law constitutionalism generally. The Obergefell majority's premise that the marriage right is created and conferred by positive law renders the rights and duties of same-sex marriage unstable. By contrast, the rights and duties of the natural family have proven surprisingly resilient, despite their incompatibility with full marriage equality, …

Searching For Equity Amid A System Of Schools: The View From New Orleans, Robert A. Garda Jr.

Robert A. Garda

Hurricane Katrina leveled both the buildings and governance structure of the New Orleans school system. The system was transformed from one elected school board controlling nearly all the schools to a system of schools with sixty-three school districts operating within the city’s geographic boundaries that are run by forty-four independent school boards. There is not a more decentralized school governance structure in the United States. This article discusses how this new system of schools is attempting to achieve equal educational opportunities for its most vulnerable and at-risk student populations: the poor, minorities, students with disabilities, and English Language Learners.

For …

The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel

David B Kopel

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms are …

Accidentally On Purpose: Intent In Disability Discrimination Law, Mark C. Weber

Mark C. Weber

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no …

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate …

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that …

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …