Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 10 of 10
Full-Text Articles in Law
Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli
Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli
Faculty Scholarship
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …
Equal Protection Design Defects, Jonathan Feingold
Equal Protection Design Defects, Jonathan Feingold
Faculty Scholarship
One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
The Regulation Of Race In Science, Kimani Paul-Emile
The Regulation Of Race In Science, Kimani Paul-Emile
Faculty Scholarship
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …
Notes Toward A Critical Contemplation Of Law, Sonia K. Katyal
Notes Toward A Critical Contemplation Of Law, Sonia K. Katyal
Faculty Scholarship
In this tribute to Professor Derrick Bell’s legacy, Professor Katyal reflects on one of Bell’s greatest gifts: the necessary, and perhaps unfinished gift of critical contemplation of law, along with its possibilities and its concomitant limitations. In her paper, Katyal reflects on two seemingly disparate areas of civil rights that might benefit from Bell’s critical vision: the area of LGBT rights and equality, and federal Indian law. Relying on some of Bell’s most valuable insights, Katyal calls for the creation of a “critical sexuality studies” and a “critical indigenous studies” that employs some of Bell’s groundbreaking lessons in reimagining broader …
Abolishing The Time Tax On Voting, Elora Mukherjee
Abolishing The Time Tax On Voting, Elora Mukherjee
Faculty Scholarship
A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …
Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman
Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman
Faculty Scholarship
Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …
In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher
In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher
Faculty Scholarship
This Essay argues that the principle of equality under law is best grounded in a holistic view of human dignity. Rejecting modem attempts to justify equality by reducing humanity to a particular actual characteristic, it articulates a religious imperative to treat people equally by drawing on biblical as well as modern philosophical sources. The principle "all men are created equal," as celebrated in the Declaration of Independence and Gettysburg Address, draws on this holistic understanding of humanity. This admittedly romantic approach to equality generates a critique of contemporary Supreme Court doctrine, including the prevailing approaches to strict scrutiny, affirmative action, …
Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger
Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger
Faculty Scholarship
Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …
Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle
Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle
Faculty Scholarship
Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court's innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court's performance in one significant class of cases-those interpreting the equal protection clause of the …