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Full-Text Articles in Law
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
Faculty Scholarship
Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve …
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
Faculty Scholarship
Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve …
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Faculty Scholarship
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …
John Brown's Constitution, Robert L. Tsai
John Brown's Constitution, Robert L. Tsai
Faculty Scholarship
It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …
A Post-Race Equal Protection?, Trina Jones, Mario L. Barnes, Erwin Chemerinsky
A Post-Race Equal Protection?, Trina Jones, Mario L. Barnes, Erwin Chemerinsky
Faculty Scholarship
Most vividly demonstrated in the 2008 election of the first African-American President of the United States, post-race is a term that has been widely used to characterize a belief in the declining significance of race in the United States. Post-racialists, then, believe that racial discrimination is rare and aberrant behavior as evidenced by America’s pronounced racial progress. One practical consequence of a commitment to post-racialism is the belief that governments - both state and federal - should not consider race in their decision making. One might imagine that the recent explosion in post-racial discourse also portends a revised understanding of …
The So-Called Right To Privacy, Jamal Greene
The So-Called Right To Privacy, Jamal Greene
Faculty Scholarship
The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …