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Articles 1 - 30 of 37
Full-Text Articles in Law
Setting Aside The Will Of The Plaintiffs: How And Why The 1950s School-Desegregation Strategy Marginalized Experiences Of Black Self-Determination In Unequal Schools And Examples Of Black Self-Sufficiency In Equalization Plans, Amos N. Jones
Georgia State University Law Review
No abstract provided.
Democracy Means That The People Make The Law, Gerald Torres
Democracy Means That The People Make The Law, Gerald Torres
New England Journal of Public Policy
Gerald Torres delivered the Robert C. Wood lecture at the McCormack Graduate School of Policy Studies at University of Massachusetts Boston in 2006. This is his talk.
Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Brandon N. Robinson
For decades, the famous school desegregation case of Brown v. Board of Education and its progeny have supported the notion that a State may not constitutionally require [racial] segregation of public facilities. Indeed, with regard to state-mandated racial segregation, the doctrine of separate but equal has long been considered dead and buried. In February 2005, however, the Supreme Court of the United States in Johnson v. California curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters. …
The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen
The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen
ExpressO
Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.
At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.
The groups most impacted by these trends are the indigent and the minorities. The indigent …
No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King
No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King
ExpressO
The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …
Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson
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 …
Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig
Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig
Faculty Scholarship
In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.
Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin
Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin
Chicago-Kent Law Review
This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be …
Has Conduct In Iraq Confirmed The Moral Inadequacy Of International Humanitarian Law? Examining The Confluence Between Contract Theory And The Scope Of Civilian Immunity During Armed Conflict, Samuel Vincent Jones
Has Conduct In Iraq Confirmed The Moral Inadequacy Of International Humanitarian Law? Examining The Confluence Between Contract Theory And The Scope Of Civilian Immunity During Armed Conflict, Samuel Vincent Jones
Duke Journal of Comparative & International Law
No abstract provided.
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Dalhousie Law Journal
This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed …
Second-Class Citizens: Jews, Freedom Of Speech, And Intolerance On Canadian University Campuses, Stefan Braun
Second-Class Citizens: Jews, Freedom Of Speech, And Intolerance On Canadian University Campuses, Stefan Braun
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs
Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs
Faculty Scholarship
The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarfs disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …
Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson
Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson
Eric Alan Isaacson
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 …
Responsibility For Historical Injustices: Reconceiving The Case For Reparations, Amy J. Sepinwall
Responsibility For Historical Injustices: Reconceiving The Case For Reparations, Amy J. Sepinwall
Amy J. Sepinwall
Two opposing conceptions of responsibility animate the debate about reparations for slavery. Opponents of reparations espouse an individualist conception, and hold that one may be held responsible only for an action in which she participated directly, and only to the extent that her contribution caused harm. Since no contemporary citizen participated in slavery, opponents conclude that no contemporary citizen has a duty of repair. Supporters of reparations, or reparationists, adopt or develop theories of collective responsibility, according to which responsibility attaches to a group first and foremost, and then gets ascribed to the group's members derivatively. Reparationists thus argue that, …
Civil Rights, Latinos, And Immigration : Cybercascades And Other Distortions In The Immigration Reform Debate, Enid Trucios-Haynes
Civil Rights, Latinos, And Immigration : Cybercascades And Other Distortions In The Immigration Reform Debate, Enid Trucios-Haynes
Brandeis School of Law Faculty Scholarship
No abstract provided.
The Intergration Myth: America's Failure To Produce Equal Education Outcomes, Samuel E. Brown
The Intergration Myth: America's Failure To Produce Equal Education Outcomes, Samuel E. Brown
The Modern American
No abstract provided.
Renewing The Temporary Provisions Of The Voting Rights Act: Legislative Options After Lulac V. Perry, Sherrilyn A. Ifill
Renewing The Temporary Provisions Of The Voting Rights Act: Legislative Options After Lulac V. Perry, Sherrilyn A. Ifill
Congressional Testimony
No abstract provided.
Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor
Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor
Articles
My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.
First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …
Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew
Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew
Articles
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.
This Article, however, questions the assumption that there should be …
The Empire Forgotten: The Application Of The Bill Of Rights To U.S. Territories, Alan Tauber
The Empire Forgotten: The Application Of The Bill Of Rights To U.S. Territories, Alan Tauber
Case Western Reserve Law Review
No abstract provided.
Democracy's Handmaid, Robert L. Tsai
Democracy's Handmaid, Robert L. Tsai
Faculty Scholarship
Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …
Class Actions And The Interpretation Of Monetary Damages Under Federal Rule Of Civil Procedure 23(B)(2), Natasha Dasani
Class Actions And The Interpretation Of Monetary Damages Under Federal Rule Of Civil Procedure 23(B)(2), Natasha Dasani
Fordham Law Review
No abstract provided.
Democracy's Handmaid, Robert L. Tsai
Democracy's Handmaid, Robert L. Tsai
Articles in Law Reviews & Other Academic Journals
Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …
From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky
Scholarly Works
No abstract provided.
The Cul De Sac Of Race Preference Discourse, Christopher A. Bracey
The Cul De Sac Of Race Preference Discourse, Christopher A. Bracey
GW Law Faculty Publications & Other Works
Affirmative action policy remains a contentious issue in public debate despite public endorsement by America’s leading institutions and validation by the United States Supreme Court. But the decades old disagreement is mired in an unproductive rhetorical stalemate marked by entrenched ideology rather than healthy dialogue. Instead of evolving, racial dialogue about the relevance of race in university admissions and hiring decisions is trapped in a cycle of resentment.
In this article, I argue that the stagnation of race preference discourse arises because the basic rhetorical themes advanced by opponents have evolved little over 150 years since the racial reform efforts …
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
All Faculty Scholarship
This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …
The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick
The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick
All Faculty Scholarship
This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …
Why Civil Rights Lawyers Should Study Tax, Stephen B. Cohen, Laura Sager
Why Civil Rights Lawyers Should Study Tax, Stephen B. Cohen, Laura Sager
Georgetown Law Faculty Publications and Other Works
This Article discusses the intersection of civil rights law and income taxation in the three areas listed above: damages for unlawful discrimination, the forgiveness of debt by a predatory lender, and tax-exempt status for private educational and religious institutions. Our purpose is not to attempt an exhaustive examination of the issues in each area but to convey a sense of the range of tax problems that civil rights lawyers may need to confront.
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Georgetown Law Faculty Publications and Other Works
My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender ("LGBT") people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of …
Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll Cashin
Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll Cashin
Georgetown Law Faculty Publications and Other Works
Part I of this essay begins one hundred years before the passage of the Act, with Reconstruction. I briefly canvas the interracial alliances of the Reconstruction and Redemption periods, underscoring that American democracy has been most responsive to the masses, including working class whites, when interracial alliances between whites and blacks commanded majority power. I then recount how a politics of white supremacy animated and perpetuated racial schisms between blacks and whites for a century in the South. Part II describes how the Act came to be passed, emphasizing the role of protest and coalition politics in its enactment, and …