Law Commons^™

Absolute Immunity: A License To Rape Justice At Will, Prentice L. White

Prentice L White

ABSOLUTE IMMUNITY: A LICENSE TO RAPE JUSTICE AT WILL BY PRENTICE L. WHITE We are all acquainted with the phrase the sanctity of marriage. We understand that the vows made by a couple at the wedding ceremony is sacrosanct, and if those vows are not taken seriously, or abused in any way, then the offending spouse will be penalized and evicted from the marital relationship. Likewise, justice should be handled in the same manner and with the same intensity. America prides itself on having the best legal system in the world. It broadcasts to all the surrounding nations that its …

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho

Dale E Ho

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

It’S Time To Replace Tsa’S John Pistole Because Of His Lack Of Conflict Resolution Skills, Christopher C. Cooper Dr.

Christopher C. Cooper Dr.

In order to be a solid Law Enforcement leader, one must possess excellent social skills. Included should be expertise in interpersonal conflict resolution. Yes, Pistole has an obligation to keep travelers safe; however, Pistole also has an obligation to guard children from being groped by TSA employees. Pistole has an obligation to allow men and women to be free from exploitation by TSA workers. Since we are country characterized by Democracy, Pistole has an obligation to do what the people ask when the request is reasonable. This obligation extends to all of our federal elected officials. Let us commend the …

The Problem Is A Combative Chief Of U.S. Airport Security, Christopher C. Cooper Dr.

Christopher C. Cooper Dr.

The Transportation Security Administration (TSA) head, John Pistole, has become known by many Americans this week because of his hard-line, inflexible stance that aggressive patdowns of airport passengers will not be modified. As incredulous, although we live in a Democracy, Pistole has implied wrongdoing on the part of the media for airing stories about the aggressive patdowns that are akin to molestation.

Yes, Pistole has an obligation to keep travelers safe; however, Pistole also has an obligation to guard children from being groped by TSA employees. Pistole has an obligation to allow men and women to be free from exploitation …

Ca. Gov't Code §11135: A Challenge To Contemporary State-Funded Discrimination, Danfeng S.V. Koon

Danfeng S.V. Koon

Racially disproportionate outcomes persist in our schools, hospitals, courts, and neighborhoods. While some of these disparities stem from historical inequalities, socio-economic differences, and individual behavior, considerable racial disparities persist, even after holding these factors constant. These disparities are particularly troubling because they are attributable to the unconscious biases embedded in the policies and practices of our public institutions and represent the most pernicious form of contemporary discrimination. This article argues that unlike other disparities, these “super disparities,” can and must be legally redressed. While federal redress for state-funded disparate impacts has been largely foreclosed after Alexander v. Sandoval, California Government …

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual erasure, …

Yes, I Can: Subjective Legal Empowerment, Martin Gramatikov, Robert B. Porter

Martin Gramatikov

This paper explores critically the notion of legal empowerment and suggests that the currently employed approaches lead to vague concepts which evade measurement and lend little programmatic guidance. Our thesis is that legal empowerment should be sought not in the process of providing legal solutions but in the subjective self-belief that a person posses and can mobilize the necessary resources, competencies and energies to solve particular problem of legal nature. This model rejects the existence of an overall quantity of legal empowerment. People’s beliefs in their ability to solve legal problems differ by type of problem, distribution of power in …

No Place To Hide: First Amendment Protection For Geolocation Privacy, Theodore F. Claypoole

Theodore F Claypoole

The article analyzes the conflict between established Constitutional rights and evaporating privacy, by exploring technological changes that threaten anonymity and examining the First Amendment rights to be anonymous in association and speech.

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

Lowering The Threshold: Establishing Mental Disability Employment Discrimination Claims After The Ada Amendments Act (Updated 9/22/10), Susan Z. Dunn

Susan Z Dunn

2010 marks the 20th anniversary of the passage of The Americans with Disabilities Act. Created to protect the interests of all disabled, physical and mental, the ADA was the first comprehensive civil rights legislation of its kind. This article will review the ADA’s original employment provisions, focusing on the threshold question of what is a disability. Further, it will discuss the U.S. Supreme Court cases that, in fact, raised the statutory threshold – making it more difficult for a mentally disabled claimant to qualify as “disabled.” Finally, the article will examine the recent changes to the law brought forth by …

Addressing The Special Problems Of Mentally Ill Prisoners: A Small Piece Of The Solution To Our Nation's Prison Crisis, Michael Vitiello

Michael Vitiello

After years of neglect, policymakers must confront a crisis in our prisons created by the increasing number of mentally ill prisoners. Mentally ill prisoners are both vulnerable and troublesome. Apart from their special needs, they are an increasing segment of the prison population. Their numbers have risen roughly in proportion with the release of the mentally ill from mental hospitals and the closing of those institutions. As states look for ways to reduce prison costs, meaningful reform may be in the air. That may allow a reexamination of policies that have led to the increase in mentally ill-prisoners. But if …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Actual Notice And Deliberate Indifference: The Impact Of Mansourian V. Regents Of The University Of California On Title Ix, Mitchell J. Kim

Mitchell J Kim

The recent Ninth Circuit case of Mansourian v. Regents of the University of California held that individuals could file claims in court against schools for discriminating based on gender in violation of Title IX without first notifying the school of the alleged violation so that it might have an opportunity to rectify the violation. Specifically, the “notice and opportunity” requirement is not required in the context of intercollegiate athletics. The Court mistakenly equated “deliberate indifference” with “intentional action,” thereby relieving claimants of any responsibility to resolve the problems with the schools themselves. Due to the flexible standards for a school …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Shift Happens: The Supreme Court Of The United States’ Shifting Anti-Discrimination Rhetoric, Theresa M. Beiner

Theresa M. Beiner

The United States Supreme Court's discourse on discrimination affects how fundamental civil rights -- such as the right to be free from gender and race discrimination B are adjudicated and conceptualized in this country. Shortly after Congress=s passage of Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer or government conduct. Over time, however, that presumption has dissipated and today, the Court actually presumes non-discrimination absent some evidence that shows an employer or governmental actor was intentionally discriminating. This paper will describe the shift in the …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions …

Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes In Narcotics Distribution Law, Kevin R. Pettrey

Kevin R Pettrey

The Virginia General Assembly has proscribed distributing narcotics within the Commonwealth. In order to further deter this illegal activity, increased punishments for repeat offenders have been established. However, what a charging document must allege changed in 2009 but these technical requirements are not always complied with. Prior to 2009, Virginia Code § 18.2-248 only required that a conviction be a “second or subsequent conviction” in order to qualify a defendant for a heightened sentence. In 2009, the Virginia General Assembly passed HB 2362 which required charging documents to allege that a defendant was convicted of violating Virginia Code § 18.2-248 …

Stopping A Vicious Cycle: The Problems With Credit Checks In Employment And Strategies To Limit Their Use, Sharon Goott Nissim

Sharon Goott Nissim

This paper explores a new and increasingly common phenomenon: the use of credit checks by employers to evaluate potential and current employees. This practice has profound implications in this current weak economy, as those who most need jobs often are the ones turned away due to bad credit. The use of credit checks also has a disproportionate effect on racial minorities as statistically they tend to have worse credit than non-minorities. Employers often assert that credit checks are necessary, despite the lack of hard data proving a link between poor credit and poor job performance.

This paper examines two ways …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …