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Full-Text Articles in Law
Expressivism, Empathy And Equality, Rachel D. Godsil
Expressivism, Empathy And Equality, Rachel D. Godsil
University of Michigan Journal of Law Reform
In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …
Courts And Cultural Distinctiveness, Marie R. Deveney
Courts And Cultural Distinctiveness, Marie R. Deveney
University of Michigan Journal of Law Reform
The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker's understanding of what constitutes "cultural distinctiveness" is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh's and Joseph Carens's papers and Dean Suagee's remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists' subtle and sophisticated understandings of cultural distinctiveness with the …