Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 29 of 29

Full-Text Articles in Law

Immigration And The Civil Rights Agenda, Cristina M. Rodríguez Jan 2010

Immigration And The Civil Rights Agenda, Cristina M. Rodríguez

Faculty Scholarship Series

During Congress's efforts to pass comprehensive immigration reform in
2006 and 2007, media and academic commentators characterized the activism
that animated the immigrant community as the beginnings of a civil rights
struggle' -one that would dovetail with the growing political power of the country's Latino population to produce a major new social movement. These
predictions were stirring, and the large-scale immigration marches of 2006,
which helped prevent the passage of a House bill that would have made
unlawful status a felony rather than adopt a legalization program, illuminated
the agency and power of immigrant communities. But the intensity ...


The Citizenship Clause, Original Meaning, And The Egalitarian Unity Of The Fourteenth Amendment, Cristina M. Rodríguez Jan 2009

The Citizenship Clause, Original Meaning, And The Egalitarian Unity Of The Fourteenth Amendment, Cristina M. Rodríguez

Faculty Scholarship Series

Section 1 of the Fourteenth Amendment begins by making clear
that "All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside." Questions about the scope of this
birthright citizenship rule were largely settled by the late nineteenth
century, and Congress has stepped in to provide statutory citizenship
to those individuals born in the United States-namely Native Americans-
who have been found not to be constitutional birthright citizens.
The only remaining controversy regarding the scope of the Citizenship
Clause involves whether children born ...


Book Review: Beyond Citizenship: American Identity After Globalization, Cristina M. Rodríguez Jan 2009

Book Review: Beyond Citizenship: American Identity After Globalization, Cristina M. Rodríguez

Faculty Scholarship Series

In Beyond Citizenship Peter Spiro advances a bracing premise: American citizenship has lost its meaning. Spiro tells the story of an institution's erosion - by forces from within, including our growing tolerance of dual citizenship and the openness of our naturalization laws, and forces from without, especially the proliferation of transnational identities and the dilution of American identity through the adoption of our culture and ideas around the globe.


Discrete And Insular No More, Cristina M. Rodríguez Jan 2009

Discrete And Insular No More, Cristina M. Rodríguez

Faculty Scholarship Series

Ordinarily, court cases that address the Latino experience in the United
States are presented as addenda to larger narratives-as casebook squibs.
Hernandez v. Texas,' which explores the status of Mexican Americans as a
"protected class," sits in the considerable shadow of Brown v. Board of
Education, decided two weeks later. Discrimination based on language is
presented as a minor variation on the central question of race in American
constitutional law.' The 1975 extension of the Voting Rights Act to cover
jurisdictions in which Latinos were denied access to the vote is a historical
second thought. Courts and lawmakers have assessed ...


Accommodating Discrimination, Ashlie Warnick Apr 2008

Accommodating Discrimination, Ashlie Warnick

Faculty Scholarship Series

The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the ...


Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Christopher N. Lasch, Giovanna Shay Feb 2008

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Christopher N. Lasch, Giovanna Shay

Faculty Scholarship Series

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a “dialogue” (as described by Robert M. Cover and T. Alexander Aleinikoff ...


From Litigation, Legislation, Cristina M. Rodríguez Jan 2008

From Litigation, Legislation, Cristina M. Rodríguez

Faculty Scholarship Series

Brian Landsberg puts lawyers at the center of history. In Free at Last To
Vote: The Alabama Origins of the 1965 Voting Rights Act,1 Landsberg tells the story of the Department of Justice (DOJ) attorneys who spent the early 1960s bringing case after case against recalcitrant local officials in Alabama to enforce the voting rights provisions of the civil rights statutes that preceded the landmark Voting Rights Act of 1965 (VRA). In the popular imagination and in broadly framed historical accounts, the VRA represents the culmination
of grassroots civil rights struggle and hardball national politics. But Landsberg reminds us ...


The Citizenship Paradox In A Transnational Age,, Cristina M. Rodríguez Jan 2008

The Citizenship Paradox In A Transnational Age,, Cristina M. Rodríguez

Faculty Scholarship Series

Through Americans in Waiting, Hiroshi Motomura tells us three differ- ent stories about how U.S. law and policy, over time, have framed the relationship between immigrants and the American body politic. He cap- tures the complexity, historical contingency, and democratic urgency of that relationship by canvassing the immigration law canon and teasing from it the three frameworks that have structured immigrants' social status, their interactions with the state, and the processes of immigrant integration and naturalization. In so doing, he illuminates how popular mythologies about the assimilative capacity of the American melting pot obscure myriad politi- cal and social ...


Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding Apr 2007

Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding

Faculty Scholarship Series

In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of “personal law” that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state’s different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to ...


Tribe, Kenji Yoshino Jan 2007

Tribe, Kenji Yoshino

Faculty Scholarship Series

I met Larry Tribe in 1997 at a dinner party in Cambridge, Massachusetts. To
introduce me to her colleagues, Harvard Professor Martha Minow asked me which of the University's scholars I would like to invite to my ideal dinner. As a newly minted professor, it took me a moment to realize this was not an interview question, but her characteristically generous attempt to construct a guest list. I asked for Larry Tribe and Helen Vendler. I had been lucky enough to take a seminar on modem poetry with Vendler as an undergraduate at Harvard. But neither Vendler nor I ...


Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception., Dan M. Kahan Jan 2007

Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception., Dan M. Kahan

Faculty Scholarship Series

Why do white men fear various risks less than women and minorities? Known as the “white male effect,” this pattern is well documented but poorly understood. This paper proposes a new explanation: identity-protective cognition. Putting work on the cultural theory of risk together with work on motivated cognition in social psychology suggests that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their cultural identities ...


Language Diversity In The Workplace, Cristina M. Rodríguez Jan 2006

Language Diversity In The Workplace, Cristina M. Rodríguez

Faculty Scholarship Series

In March of 2005, the manager of a Dunkin' Donuts in Yonkers, New
York, stirred some local controversy when he posted a sign inviting customers
to complain if they heard employees behind the counter speaking a
language other than English. A day later, the manager removed the sign,
responding to vociferous complaints that it amounted to discrimination.
While the mini-drama was not itself an unusual event-English-only rules
have become increasingly common in the American workplace-the episode
did not follow the predictable script. The manager, who acted on his
own, was himself a native Spanish speaker-an immigrant from Ecuador.
He claimed ...


Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr. Jan 2003

Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr.

Faculty Scholarship Series

Brown v. Board of Education occupies a vaunted space in American
jurisprudence. One commentator writes that Brown is the most
celebrated case in the Court's history. Equally laudatory, another
commentator remarks: "In the half century since the Supreme Court's
decision, Brown has become a beloved legal and political icon." A
third proclaims that, "Brown forever changed the role of the United States Supreme Court in American politics and society." To the lay
public, Brown sits among a small pantheon of cases that is widely recognizable
to the average American.' Miranda and Roe v. Wade
likely are the only ...


The Eclectic Model Of Censorship, Kenji Yoshino Jan 2000

The Eclectic Model Of Censorship, Kenji Yoshino

Faculty Scholarship Series

Censorship used to be a very dull subject. Aligned along
predictable and venerable divisions separating liberals from
conservatives, oriented toward ancient and well-rehearsed
chestnuts such as obscenity and national security, the topic
promised little of analytic interest.
In recent years, however, the landscape of censorship has
altered dramatically. Now feminists in Indianapolis join with
fundamentalist Christians to seek the regulation of pornography.
Critical race theorists join with Jesse Helms to regulate hate
speech. Advocates of abortion rights seek to restrict political
demonstrations while conservative pro-life groups defend the
freedom to picket (p. 1).


The Epistemic Contract Of Bisexual Erasure, Kenji Yoshino Jan 2000

The Epistemic Contract Of Bisexual Erasure, Kenji Yoshino

Faculty Scholarship Series

In this article, Professor Kenji Yoshino seeks to explain why the category of bisexuality has been erased in contemporary American political and legal discourse. He first argues that the invisibility of bisexuality relative to homo- sexuality does not reflect the incidences of those orientations in the population. Defining bisexuality as the possession of more than incidental desire for both sexes, Yoshino shows that the major sexuality studies demonstrate that the inci- dence of bisexuality is in fact greater than or comparable to the incidence of homosexuality. Yoshino explains the erasure of bisexuality by positing that both self-identified heterosexuals and self-identified ...


Assimiliationist Bias In Equal Protection: The Visibility Presumption And The Case Of Don't Ask, Don't Tell, Kenji Yoshino Jan 1998

Assimiliationist Bias In Equal Protection: The Visibility Presumption And The Case Of Don't Ask, Don't Tell, Kenji Yoshino

Faculty Scholarship Series

Equal protection heightened scrutiny jurisprudence currently privileges
the talismanic classifications of race and, to a lesser extent, sex. In
considering arguments that other classifications be accorded heightened
scrutiny, the courts have required claimants to demonstrate the similarities
these classifications share with race and sex. Commonalities between the
two paradigm classifications thus play a powerful gatekeeping role.
Two commonalities emphasized by the courts are that race and sex
ostensibly mark individuals with immutable and visible traits. A
classification will therefore be less likely to receive heightened scrutiny if
its defining traits can be altered or concealed. By withholding protection
from these ...


Suspect Symbols: The Literary Argument For Heightened Scrutiny For Gays, Kenji Yoshino Jan 1996

Suspect Symbols: The Literary Argument For Heightened Scrutiny For Gays, Kenji Yoshino

Faculty Scholarship Series

This Article can be read as a response to a question a federal appellate
judge asked me. During a clerkship interview, the judge inquired
about a course on my transcript subtitled "Queer Theory." I told him it
was a course on legal, political, and sociological theories of sexual orientation
and mapped some of its themes. He listened attentively, then
stated: "Actually, what I wanted to know was what the word 'queer'
means." Quick to rationalize authority, I assumed he knew what the word
meant, and was attempting to gauge the subtlety of my understanding of
it. So I responded: "My ...


The Changing Nature Of Employment Discrimination Litigation, John Donohue, Peter Siegelman Jan 1991

The Changing Nature Of Employment Discrimination Litigation, John Donohue, Peter Siegelman

Faculty Scholarship Series

Part I analyzes several socioeconomic and legal changes that may have prompted the rise in employment discrimination litigation and estimates that these factors account for roughly two-thirds of the growth in litigation. Part II attempts to explain the residual growth. After discussing a number of commonly offered explanations, we put forth a somewhat counterintuitive theory of our own: As minorities and women moved into better jobs and the work place became more integrated, the likelihood of certain kinds of employment discrimination litigation increased. Part III analyzes the shifting composition of employment discrimination litigation-from discriminatory hiring to discriminatory discharge, and from ...


Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch Jan 1973

Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch

Faculty Scholarship Series

The eleventh amendment1 recently has emerged from the obscurity which surrounded its first 170 years of existence. Several aspects of con­ temporary political life have combined to cause heavier reliance on the amendment by state governments.2 The scope of government activity has widened to include areas previously under private control.3 In addition, due process and equal protection concepts have been expanded to include previously unrecognized claims against government defendants.4

Coupled with the broader interpretation of these constitutional protections is the heightened public interest in litigation against governmental organizations, evidenced by the increasing number of pro se ...


The Erosion Of Indian Rights, Felix S. Cohen Jan 1953

The Erosion Of Indian Rights, Felix S. Cohen

Faculty Scholarship Series

OUR 450,000 American citizens who are members of Indian tribes are
probably the only racial group in the United States whose rights are more
limited in 1953 than they were in 1950. The erosion of Indian rights in this
period and the factors which contributed to that erosion can be fairly evaluated
only if we also view the background of Indian progress during the 21-year
period from 1929 to 1950. During that period more than a score of discriminatory
restrictions upon Indians were abolished; the size of Indian landholdings
increased, instead of decreasing, for the first time in American ...


Book Review: To Secure These Rights: The Report Of The President's Committee On Civil Rights, Felix S. Cohen Jan 1948

Book Review: To Secure These Rights: The Report Of The President's Committee On Civil Rights, Felix S. Cohen

Faculty Scholarship Series

THE President's Committee has received a well-deserved accolade of praise
from the civilized, and of brickbats from the blood-fanatics, for its report on
civil rights in America, of which more than a million copies have been reprinted.
So far as I know, however, none of the commentators on this important
document has noted that it is not the first in its field. Some 78 years
before the landing of the Pilgrims, the first comprehensive report on the civil
rights of Americans was completed. In the concluding paragraphs of his
report, dated December 8, 1542, Fra Bartholomew de las Casas ...


Book Review: The Alien And The Asiatic In American Law, Felix S. Cohen Jan 1947

Book Review: The Alien And The Asiatic In American Law, Felix S. Cohen

Faculty Scholarship Series

This treatise on the two chief outcasts of our constitutional system, the
alien and the Asiatic, is a timely probing of the depth of our American democracy.
Its list of legal atrocities constitutionally committed upon Americans or
would-be Americans who did not have the foresight to be born in the proper
places has all the macabre fascination of old ethnology books which recount
the horrors found by missionaries among benighted peoples lacking properly
supported agencies of civilization and true religion.
Today, more than ever, such a study has meaning even for native-born
Americans of whitest ancestry. For none of us ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Supreme Court And Private Rights, Edwin Borchard Jan 1938

Supreme Court And Private Rights, Edwin Borchard

Faculty Scholarship Series

Some of the social-political theories which influenced the framers of the Constitution were derived from Locke, Hume, Harrington, Coke and Blackstone. These men were less concerned with forms of government than with the relation between society as a whole and its individual members. They were sure that the individual possessed certain indefeasible, primordial rights and that government was designed to protect these rights against encroachment by the state or by classes within it. Perhaps the most important of these private rights was that of property, associated by Locke with liberty and often identified with it.' Thus, the effort of the ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


An Indiana Declaratory Judgment, Edwin Borchard Jan 1936

An Indiana Declaratory Judgment, Edwin Borchard

Faculty Scholarship Series

It is an aphorism that the greatest enemies of law reform, and particularly of procedural reform, are the lawyers. A striking exemplification of the axiom may be found in Brindley v. Meara, decided by the Supreme Court of Indiana, November 18, 1935, 198 N. E. 301. That was the second of two appearances before the Supreme Court of the members of the advisory board of North Township, Lake County. They had already successfully brought an action for a declaratory judgment, construing a statute which determined that they and not the defendant, township trustee, had the power to select the persons ...


Foreign Bondholders Protective Organizations, Edwin Borchard Jan 1933

Foreign Bondholders Protective Organizations, Edwin Borchard

Faculty Scholarship Series

The unfortunate experience in recent years of the American holders of defaulted foreign bonds led to the passage by Congress on May 27, 1933, of the Corporation of Foreign Bondholders Act, as Title II of the Federal Securities Act. It was designed to furnish a medium through which American bondholders could act jointly in the adjustment of their claims against defaulting governments or other foreign entities. The holders of the defaulted bonds of a foreign state occupy a peculiar position. They cannot sue in the bondholders' state, nor, even where foreign governments permit themselves to be sued, have they any ...


French Administrative Law, Edwin Borchard Jan 1933

French Administrative Law, Edwin Borchard

Faculty Scholarship Series

In a time of rapid economic and social change the historical separation of powers tends to become blurred and indistinct. Notwithstanding the social necessity for breaking down this incident of the natural law of the eighteenth century, it has survived in the United States to an extent unknown in other countries, possibly in part because of the indigenous nature of one of its sustaining causes, namely, the unwillingness of the United States Supreme Court to exercise jurisdiction in any but the most pressing of cases, with the consequent undue limitation of the concept "judicial."' But the facts of life defy ...


Declaratory Judgment In The United States, Edwin Borchard Jan 1931

Declaratory Judgment In The United States, Edwin Borchard

Faculty Scholarship Series

The common law and other legal systems long professed the assumption that it was necessary to commit physical damage or injury (a wrong) or to threaten an immediate injury, before the protection of the courts could be invoked by the person requiring

judicial protection. It was apparently not sufficiently realized that rights may be impaired and disturbed and injuries suffered by the mere assertion of claims which throw rights into doubt, uncertainty, and jeopardy. So the mere unfounded assertion that a person is married or unmarried, illegitimate, insane; the mere fact that title to property is challenged; the mere fact ...