Law Commons^™

From Intent To Effect: Richmond, Virginia, And The Protracted Struggle For Voting Rights, 1965–1977, Julian Maxwell Hayter

Jepson School of Leadership Studies articles, book chapters and other publications

Twelve years after the ratification of the Voting Rights Act of 1965 [VRA], Richmond, Virginia elected a historic majority black city council. The 5-4 majority quickly appointed an African American lawyer named Henry Marsh, III to the mayoralty. Marsh, a nationally celebrated civil rights litigator, was not only the city’s first black mayor, but the council election of 1977 was also Richmond’s first since 1970. In 1972, a federal district court used the VRA’s preclearance clause in Section 5 to place a moratorium on council contests. This moratorium lasted until the Supreme Court and the Department of Justice determined whether …

If She Don’T Win It’S A Shame: Female Executive Sues New York Mets For Pregnancy Discrimination, Joanna L. Grossman, Deborah L. Brake

Hofstra Law Faculty Scholarship

Leigh Castergine was the first woman to become a Senior Vice President in the Front Office of the Mets, a once-beloved, but now losing Major League Baseball team in New York. She was in charge of ticket sales and was rewarded over the years for innovations and successes to the tune of multiple $50,000 raises and a $125,000 bonus. But she met her glass ceiling when she, an unmarried woman, announced her pregnancy in 2013.

The Need For Comprehensive Federal Outreach And Mechanisms To Support State And Local Implementation Of The Convention, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

Compliance with the Convention Against Torture (“CAT”) requires effective federal coordination with, and education of, state and local governments. In ratifying the CAT, the United States indicated that state and local governments share authority to implement the treaty. This includes the over 150 state and local civil and human rights agencies that enforce federal, state and local human and civil rights laws and/or conduct research, training and education, and issue policy recommendations within the United States (“Human Rights Agencies”). It also includes the full array of state and local officials with decision-making and enforcement authority, including governors, state attorneys general, …

Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr.

Journal Articles

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, …

Pink Franklin V. South Carolina: The Naacp’S First Case, W. Lewis Burke

Faculty Publications

No abstract provided.

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

All Faculty Scholarship

This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

Disparate Impact, School Closures, And Parental Choice, Nicole Stelle Garnett

Journal Articles

We live in an era of parental choice. Today, forty-two states and the District of Columbia authorize charter schools, and twenty states and the District of Columbia permit students to use public funds to attend a private school. During the 2012-2013 school year, nearly 2 million children attended charter schools, and nearly 250,000 children received publicly funded scholarship to attend a private school. The expanding menu of publicly funded educational options is one (but by no means the only) factor contributing to the current, intensely controversial, waves of urban public school closures. In school-closure debates, proponents of traditional public schools …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Same Sex Marriage In A Post-Perry And Windsor America, Kathryn L. Moore, Allison I. Connelly, Ross T. Ewing

Law Faculty Scholarly Articles

These materials accompanied a presentation at the 2014 Kentucky Bar Association Annual Convention entitled Same Sex Marriage in a Post-Perry and Windsor America. The focus of this presentation was on: the legal landscape following major LGBTQ civil rights cases; how these cases would impact families in Kentucky; and any employment or retirement issues.

The Need For Effective Federal Outreach And Mechanisms To Coordinate And Support Federal, State And Local Implementation Of The Convention, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

As this Committee has consistently recognized, compliance with the CERD requires effective coordination between federal, state, and local governments. In ratifying the CERD, the United States indicated that state and local governments share authority to implement the treaty. This includes the over 150 state and local civil and human rights agencies that enforce federal, state and local human and civil rights laws and/or conduct research, training and education, and issue policy recommendations within the United States (“Human Rights Agencies”). It also encompasses the full array of state and local officials with decision-making and enforcement authority, including governors, state attorneys general, …

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Race And Immigration, Then And Now: How The Shift To "Worthiness" Undermines The 1965 Immigration Law's Civil Rights Goals, Elizabeth Keyes

All Faculty Scholarship

This essay looks at how far immigration reform has come from the explicit civil rights character of the 1965 immigration law that reshaped America. The optimism surrounding that law’s dismantling of national-origins barriers to immigration proved to be overstated in the intervening decades, as the factors determining an immigrant’s “worth and qualifications” too often became proxies for race. After briefly looking at work done by critical race theorists tracing some of ways race and immigration have long intersected in immigration legal history, the article closely examines modern-day immigration reform proposals, particularly the Senate bill that remains the most complete articulation …

Powers And Rights In Shelby County V. Holder, Corey Brettschneider

Schmooze 'tickets'

No abstract provided.

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Institutional Preconditions For Policy Success, Blake Hudson

Journal Articles

Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional …

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books …

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

Paternalistic Interventions In Civil Rights And Poverty Law: A Case Study Of Environmental Justice, Anthony V. Alfieri

Articles

No abstract provided.

Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum

Vanderbilt Law School Faculty Publications

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

Scholarly Works

Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.

Articles

This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld

Faculty Scholarship

A state’s decision whether to expand Medicaid has become a highly politicized issue, spawning countless news stories and on-going debate. However, this Essay takes a step back from that highly charged discourse and situates Medicaid expansion in its historical context. We reveal that this latest change universalizes the program, holding the power to finally realize President Johnson’s vision for the Great Society, almost fifty years later. Medicaid can be understood as a universal program for three reasons: (1) the percentage of thepopulation of children, pregnant women, and non-elderly adults it covers; (2) the degree to which Medicaid funds long-term care …

Gun Rights Talk, Joseph Blocher

Faculty Scholarship

No abstract provided.

Objecting To Race, Anthony V. Alfieri

Articles

No abstract provided.

Access To Counsel: Psychological Science Can Improve The Promise Of Civil Rights Enforcement, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

Employment discrimination claimants in general, and racial minority claimants in particular, disproportionately lack access to legal counsel. When employment discrimination claimants lack counsel, they typically abandon their claims, or if they pursue their claims, they do so pro se (without counsel), a strategy that is seldom successful in court. Access to counsel is, hence, a decisive component in whether employment discrimination victims realize the potential of civil rights enforcement. Psychological science analyzes access to counsel by identifying psychological barriers—such as threatened social identity, mistrust in legal authorities, and fear of repercussions—that prevent employment discrimination victims from pursuing counsel. The analysis …

Title Vii At 50: Contemporary Challenges For U.S. Employment Discrimination Law, Trina Jones

Faculty Scholarship

No abstract provided.