Law Commons^™

Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz

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Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule or private discrimination will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that …

A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis

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Since 2006, the Illinois Human Rights Act has prohibited discrimination in employment because of an employee’s sexual orientation or gender identity. Until 2017, employees discriminated against because of their sexual orientation had no federal cause of action, however. In a landmark decision, Hively v. Ivy Tech, the Court of Appeals for the Seventh Circuit became the first appellate court to hold that federal law’s prohibition of sex discrimination in the workplace also proscribed sexual orientation discrimination. The Hively decision is a substantial departure from decades’ worth of Seventh Circuit precedent and created a split between the circuits. This Article examines …

Against Gay Potemkin Villages: Title Vii And Sexual Orientation Discrimination, Anthony Michael Kreis

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Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member …

Stages Of Constitutional Grief: Democratic Constitutionalism And The Marriage Revolution, Anthony Michael Kreis

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Do courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change …

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

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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 …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

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No abstract provided.

Fisher's Fishing Expedition, Vinay Harpalani

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This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of 'critical mass' and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions.

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

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In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

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This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea …

Batson Revisited (Symposium), Nancy S. Marder

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The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise—preserving peremptories while seeking to address discriminatory peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

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Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Report - Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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No abstract provided.

South Africa’S Land Reform Crisis: Eliminating The Legacy Of Apartheid, Bernadette Atuahene

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Conceptions Of Law In The Civil Rights Movement, Christopher W. Schmidt

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Property Rights & The Demands Of Transformation, Bernadette Atuahene

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The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

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By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and …

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

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In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the …

Ambiguity, Ambivalence, And Awakening: A South Asian Becoming 'Critically' Aware Of Race In America, Vinay Harpalani

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"Ambiguity, Ambivalence, and Awakening: A South Asian Becoming 'Critically' Aware of Race in America" was the winner of the Angela Harris Award for Outstanding Student Writing at the Critical Race Theory 20 Conference. It is my critical race autobiography, where I describe my experiences growing up as a South Asian American -- a racially ambiguous figure -- during the implementation of school desegregation in New Castle County, Delaware. I relay some of my racial encounters in elementary and high school, and then discuss my undergraduate years at the University of Delaware; my graduate school education at the University of Pennsylvania; …

Brown And The Colorblind Constitution, Christopher W. Schmidt

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This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …

Freedom Comes Only From The Law': The Debate Over Law's Capacity And The Making Of Brown V. Board Of Education, Christopher W. Schmidt

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From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating …

Public Employee Speech, Categorical Balancing And Section 1983: A Critique Of Garcetti V. Ceballos, Sheldon Nahmod

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No abstract provided.

Academic Freedom And The Post-Garcetti Blues, Sheldon Nahmod

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No abstract provided.

From Reparation To Restoration: Moving Beyond Restoring Property Rights To Restoring Political And Economic Visibility, Bernadette Atuahene

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Abstract: How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from …

Legal Title To Land As An Intervention Against Urban Poverty In Developing Nations, Bernadette Atuahene

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One intervention intended to ameliorate poverty and its subsidiary effects is the distribution of legal title to land to poor urban dwellers, otherwise known as land titling. Given the billions of dollars that the World Bank, country-based development agencies, regional development banks, and developing countries themselves have spent on land titling programs, it has become one of the most important property law issues confronting the developing world. Several countries have undertaken comprehensive urban land titling programs to transform the dwellings of those who live in the squalor of squatter settlements into assets recognized by the formal sector. This Article accepts …

The Emerging Section 1983 Private Party Defense, Sheldon Nahmod

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No abstract provided.

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

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Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

From The Courtroom To The Street: Court Orders And Section 1983, Sheldon Nahmod

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No abstract provided.

The Interplay Of Race And False Claims Of Jury Nullification, Nancy S. Marder

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No abstract provided.

Introduction, Symposium On Section 1983 (Symposium Editor), Sheldon Nahmod

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No abstract provided.