Law Commons^™

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Manufacturing Moral Panic As Political Distraction: An Empirical And Social Theoretical Analysis Of Domas, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. After concluding that they do not, the article analyzes what variables are, in fact, correlated with family stability. Specifically, the relationships between families below the poverty line, men and women married three or more times, religiosity, percent conservative versus liberal in a state, disposable income, percent with bachelor’s degree, and median age of first marriage, and marriage and divorce trends is fully explored. Next, the article applies the sociological concepts of moral entrepreneurism, which …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism as a means of collaborating with Muslim communities and local police to combat “Islamist” homegrown terrorism. Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among law enforcement and …

Originalism & Same-Sex Marriage, Grant R. Darwin

Grant R Darwin

Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy question for originalism; it is clearly not within the Constitution’s purview. The purpose of this Article is to challenge that claim by illustrating how an originalist could find that denying same-sex marriage contravenes the original public meaning of the Fourteenth Amendment. It seeks first to ascertain the original public meaning of Section One of the Fourteenth Amendment. The Article finds that Section One may serve as a prohibition on systems of caste and class legislation or alternatively as a ban on partial or special class legislation …

I Wanna Marry You: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. The article examines marriage and divorce changes in trends for every state over the last ten years for which data is available comparing changes, if any, before and after a DOMA was enacted or same sex marriage was permitted. After concluding that DOMA does not play a role in either divorce or marriage changes in trends or rates, the article explores what variables are, in fact, correlated with family stability. Given that poverty, religiosity, …

Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, William Corbett

William R. Corbett

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer

Christopher S. Elmendorf

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the …

A Paradox In Employment: The Contradiction That Exists Between Immigration Laws And Outsourcing Practices, And Its Impact On The Legal And Illegal Minority Working Classes, Mary O'Sullivan

Mary T O'Sullivan

The drastic distinctions between the United States’ immigration and outsourcing policies have created a system where American companies are able to send unlimited jobs overseas, yet, have very restricted ability to bring workers to domestic offices and factories. Restrictive immigration policies seek to protect American jobs, while liberal outsourcing regulations permit, and encourage, employers to send jobs outside of the United States. As a result, the United States’ outsourcing policy sabotages the purpose of American immigration laws. The uncertainty of the contradiction between immigration and outsourcing policy may be the cause of unusually high unemployment numbers, particularly in the minority …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Katherine L. Vaughns

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs suggest that …

Border Fixation: The Appearance Of Security And Control In Immigration Reform, Katherine L. Vaughns

Katherine L. Vaughns

Immigration reform is the subject of intense discussion among politicians, policy experts, analysts, and advocacy groups alike; America’s never-ending debate which today has been infected with shameless demagoguery, rendering sound policy choices virtually impossible. And in this political cauldron, the appearance of border security and control through symbolism and political rhetoric substitute for the practical realities that are essential to inform policymakers about the appropriate administration and enforcement of U.S. immigration laws. For Congress has had an ongoing, unsound focus on sealing the border it shares with Mexico, its southwestern neighbor, seemingly without regard to costs especially in the post-9/11 …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

The Future Of Same-Sex Marriage In California, Elizabeth Hollis

Elizabeth Hollis

This article will discuss in detail the issues relating to the rights of same-sex couples wishing to get married in California. First the article examines the history of same-sex marriage in California prior to the most recent Perry v. Brown ruling. The article then focuses on the named plaintiffs in this case, concentrating particularly on their history and how they became involved in the case. Next, the litigation process of Perry v. Brown and the recent decision handed down by Circuit Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit will be reviewed. Finally, the …

I Wanna Marry You: An Empirical Analysis Of The Distraction And Irrelevancy Of Doma, Deirdre M. Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Stigma And The Emerging Law Of Obesity Control, Lindsay F. Wiley

Lindsay Wiley

Scholars have proposed a wide range of legal tools for fighting the obesity epidemic by altering the obesigenic environment: zoning regulations to create more physically active communities; taxes, bans and subsidies to create a healthier food marketplace; and disclosure requirements and advertising restrictions to alter the information environment. As policymakers take up the war on obesity, however, these promising environmental interventions are losing out to cheaper and more politically palatable interventions that target obese individuals in an effort to convince them to lose weight. For example, recent reforms have encouraged employers and insurance companies to penalize obese people through higher …

Politics As Usual: Black Stereotypes And President Obama's Racialization, Lynnette Jenkins

Lynnette R Jenkins

President Barack Obama attempted to transcend race by running a colorblind campaign and administration. Nevertheless, the President and First Lady Michelle Obama have been racialized by media as the result of stereotyping and white supremacy. This paper will demonstrate that racism is not a relic of the past by drawing parallels between previous racist imagery and current media depictions of Barack and Michelle Obama.

Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, Bill Corbett

William R. Corbett

Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself

William R. Corbett*

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or …

Not Getting Hired Because You Are Obese, But Not Getting Fired Because You Are Obese: How The New Changes To The Ada Have Set A Double Standard, And What’S To Prevent Companies From Trimming The Fat At The Office, Joshua Forman

Joshua Benjamin Forman

This article examines how the recent amendments to the Americans with Disabilities Act fail to afford people who are classified as obese the protection against employment discrimination they deserve. Part I outlines the development of the history of protections afforded to individuals who are disabled. Part II concentrates on obesity as a medical condition and the way in which society perceives those who are obese. Part III focuses on whether or not obesity can be classified as a disability under the ADAAA. Part IV provides a pragmatic solution, which identifies safeguards for an obese person at each level of the …

Not Getting Hired Because You Are Obese, But Not Getting Fired Because You Are Obese: How The New Changes To The Ada Have Set A Double Standard, And What’S To Prevent Companies From Trimming The Fat At The Office, Joshua Benjamin Forman

Joshua Benjamin Forman

This article examines how the recent amendments to the Americans with Disabilities Act fail to afford people who are classified as obese the protection against employment discrimination they deserve. Part I outlines the development of the history of protections afforded to individuals who are disabled. Part II concentrates on obesity as a medical condition and the way in which society perceives those who are obese. Part III focuses on whether or not obesity can be classified as a disability under the ADAAA. Part IV provides a pragmatic solution, which identifies safeguards for an obese person at each level of the …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Michael L. Perlin

Michael L Perlin

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

Abstract

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the …

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

Conference: Reparations In The Inter-American System: A Comparative Approach Conference, Ignacio Alvarez, Carlos Ayala, David Baluarte, Agustina Del Campo, Santiago A. Canton, Dean Claudio Grossman, Darren Hutchinson, Pablo Jacoby, Viviana Krsticevic, Elizabeth Abi-Mershed, Fernanda Nicola, Diego Rodríguez-Pinzón, Francisco Quintana, Sergio Garcia Ramirez, Alice Riener, Frank La Rue, Dinah Shelton, Ingrid Nifosi Sutton, Armstrong Wiggins

Darren L Hutchinson

This publication will enhance the understanding of what we call the law of reparations, developed in the Inter-American Court and Commission of Human Rights. Reparations have a special meaning for the victims of human rights violations and, in particular, the victims of mass and gross violations that took place in this hemisphere during the twentieth century. For those victims and their family members, reestablishing the rights as if no violation had occurred is not possible. Accordingly, to them, avoiding the repetition of those violations in the future is of paramount importance. In achieving that goal, what the victims want is …

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

Darren L Hutchinson

No abstract provided.

Critical Race Histories: In And Out, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later, Richard E. Moberly

Richard E. Moberly

Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist's Crystal Ball, Donald Stone

Donald H. Stone

This article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting and the 2011 shooting of Congresswoman Giffords have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This article will explore the misconception about the role medication and inpatient civil commitments should play in prevention of dangerousness and undermine the belief …

Public Boarding Schools: Extending Educational Opportunity To Disadvantaged Children, Bret Asbury

Bret Asbury

It is beyond question that American public education is in crisis, and nowhere is the inadequacy of our current system more striking than in high-poverty, urban schools populated by disadvantaged minority students. Despite decades of legal, policy, and scholarly efforts aimed at addressing the challenges facing these schools, the academic prospects of poor students are currently as grim as they have been in recent memory. Reformers seeking to address this problem have largely focused on either reducing discrepancies in public school funding or altering public education from within by improving and modernizing classroom conditions. Almost all of these efforts have …

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Kimberly Yuracko

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …