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“Pick”Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather P. Bennett Dec 2006

“Pick”Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather P. Bennett

ExpressO

This Note addresses freedom of speech issues facing the nation's public schools, concentrating on the recent decision by the District Court for the Eastern District of Virginia, Lee v. York County School Division, for the final paper in my First Amendment course. Ultimately, this Note analyzes the court’s decision in this case and both standards set forth by the Supreme Court in dealing with free speech rights in the field of public education, which are currently creating a circuit split between the Courts of Appeals. The Note argues that the Hazelwood-Tinker standard applied to student speech should be ...


The Constitutionality Of The Partial-Birth Abortion Ban Of 2003, Katherine R. Atkinson Dec 2006

The Constitutionality Of The Partial-Birth Abortion Ban Of 2003, Katherine R. Atkinson

ExpressO

Evaluates the constitutionality of the Partial-Birth Abortion Ban Act of 2003, beginning with a general discussion of relevant abortion procedures and jurisprudence. The Article then analyzes the Act using the void for vagueness doctrine, the undue burden test, and the Court's analysis in Stenberg, ultimately concluding the Act is unconstitutionl.


Critical Race Realism: Towards An Integrative Model Of Critical Race Theory, Empirical Social Science, And Public Policy, Gregory S. Parks Nov 2006

Critical Race Realism: Towards An Integrative Model Of Critical Race Theory, Empirical Social Science, And Public Policy, Gregory S. Parks

ExpressO

Critical Race Theory was founded as “a race-based, systematic critique of legal reasoning and legal institutions….” Critics argue that it struggles to define its substantive mission, methodological commitments, and connection to the world outside of academia. This article attempts to provide a specific methodology—empirical social science—that is consistent with Critical Race Theory’s overarching mission and that has both applied and academic components. This methodology should ultimately 1) expose racism where it may be found, 2) identify its effects on individuals and institutions, and 3) put forth a concerted attack against it, in part, via public policy arguments ...


The De-Gentrification Of New Markets Tax Credits, Roger M. Groves Nov 2006

The De-Gentrification Of New Markets Tax Credits, Roger M. Groves

ExpressO

This article provides the most comprehensive analysis to date of the New Markets Tax Credits program established by Congress. The purpose of the NMTCs is to use tax credits as incentives for investors to provide equity funds into low income areas. The article reveals that over $2 billion of federal tax subsidies that have been allocated to gentrified projects for the wealthy, rather than the intended beneficiaries – low income residents in the urban core – as Congress intended. The article proposes amendments to the statute and regulations to close unintended loopholes.


Human Rights, Clif Bennette Nov 2006

Human Rights, Clif Bennette

ExpressO

American authorities believe torture is necessary to keep America safe from terrorists, but want to avoid being accused of war crimes. So, longstanding US law and the Geneva Conventions were reinterpreted to provide legal cover. Further, policy memos saying most torture is legal were written, and activities associated with torture are shielded from Congressional oversight.


“Statistical Dueling” With Unconventional Weapons: What Courts Should Know About Experts In Employment Discrimination Class Actions, William T. Bielby, Pamela Coukos Oct 2006

“Statistical Dueling” With Unconventional Weapons: What Courts Should Know About Experts In Employment Discrimination Class Actions, William T. Bielby, Pamela Coukos

ExpressO

When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in systematic gender or racial disparities in pay and promotion. At class certification, plaintiffs have relied in part on statistical analyses of the company’s workforce showing companywide inequality. Defendants have responded with statistical presentations of their own, which frequently demonstrate widely varying outcomes for members of protected groups in different geographic areas of ...


Shooting The Messenger, Richard Delgado Oct 2006

Shooting The Messenger, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

This essay reviews Ward Churchill’s "On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality" (2003).

One of the most talked about — but least read — books of recent years, "On the Justice of Roosting Chickens" documents a long history of U.S. wars, invasions, and violations of international law on the way to concluding that when the terrible events of 9/11 took place, the U.S. deserved and should have expected retribution. In popular language, we "had it coming."

As the reader may recall, when Hamilton College rescinded Churchill’s invitation ...


The Public Forum Doctrine And Public Housing Authorities: Can You Say That Here?, Martin J. Rooney Oct 2006

The Public Forum Doctrine And Public Housing Authorities: Can You Say That Here?, Martin J. Rooney

ExpressO

This article reviews a number of federal cases applying the Public Forum Doctrine of the First Amendment. The doctrine concerns the use of public property for expressive purposes. These cases explore the application of this doctrine to situations were the government is acting as landlord, and not as sovereign. Several of these federal cases have been seriously questioned, if not outright rejected, by the Massachusetts Supreme Judicial Court. The state court has taken a much more absolutist view of the Free Speech – First Amendment rights of public housing tenants than has most of the federal case law.


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Compulsory Labor In A National Emergency: Public Service Or Involuntary Servitude? The Case Of Crippled Ports, Michael H. Leroy Oct 2006

Compulsory Labor In A National Emergency: Public Service Or Involuntary Servitude? The Case Of Crippled Ports, Michael H. Leroy

ExpressO

The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.

How far can the ...


Cradled In The Declaration Of Independence, Jay Tidmarsh Oct 2006

Cradled In The Declaration Of Independence, Jay Tidmarsh

ExpressO

This book review engages recent scholarship on the nature of civil-rights lawyering in the African-American bar in the generation before Brown v. Board of Education. Using the recent biography of Earl Burrus Dickerson, one of the leaders of the African-American bar before World War II, the book review finds support for the emerging view that, in the years before Brown, the African-American civil-rights bar was not focused on ending de jure segregation in public institutions, but rather in building up African-American institutions. Contrary to recent scholarship, however, the review suggests that Dickerson personally preferred a more integrationist strategy, and his ...


Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester Oct 2006

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward ...


Justifying Affirmative Action In K-12 Private Schools, Sharon H. Lee Sep 2006

Justifying Affirmative Action In K-12 Private Schools, Sharon H. Lee

ExpressO

In this Comment, the author examines the consequences of using substantially identical rules to govern affirmative action in both private employers and private schools. The author explores the law that governs private affirmative action and the justifications that courts have accepted for private affirmative action, focusing on whether these justifications are internal or external to the defendant. The author contends that the Supreme Court’s dicta in Johnson v. Transportation Agency, viewed in light of developments in Equal Protection Clause jurisprudence, weigh in favor of using external imbalances to justify private affirmative action. The author demonstrates that departing from the ...


Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel Sep 2006

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

ExpressO

This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s ...


Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson Sep 2006

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes ...


A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor Sep 2006

A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor

ExpressO

The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim. The Supreme Court sought ...


“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius Sep 2006

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically ...


Winter For Purehearts, Michael Cavendish Sep 2006

Winter For Purehearts, Michael Cavendish

ExpressO

The worst judicial opinion ever written issued from Florida on an anonymous day in 1864. The opinion discussed slavery. More accurately, it cherished slavery—lionizing the then extant practice in the way the British sing of the sea. As a legal precedent, it was a dangerous opinion because it was presented as something basic, fundamental and inexorable, something not to be questioned. It was dangerously simple when conveyed to accepting minds in the way a cold knife is dangerous in angered hands. The opinion, Miller v. Gaskins, is a vital study for researchers surveying the lines of human fallacy that ...


Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer Sep 2006

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a ...


After The Gold Rush?: Grutter, Sander And ‘Affirmative Action’ “On The Run…” In The Twenty-First Century, Anthony Vincent Baker Sep 2006

After The Gold Rush?: Grutter, Sander And ‘Affirmative Action’ “On The Run…” In The Twenty-First Century, Anthony Vincent Baker

ExpressO

No abstract provided.


Is It "Charitable" To Discriminate?, Nicholas A. Mirkay Sep 2006

Is It "Charitable" To Discriminate?, Nicholas A. Mirkay

ExpressO

With federal subsidies to charitable organizations exceeding $232 billion for fiscal years 2007 to 2011, the public benefit conferred by such organizations is an increasingly hot topic for Congress, the Internal Revenue Service and the entire nonprofit sector. Despite the national debate over nonprofit versus for-profit hospitals and excessive executive compensation, and the call for stricter governance and regulation, one recurring activity of charities appears to fly under the radar of reformers – discrimination. As illustrated in real-life occurrences contained in pages 3 and 4 of the article, seemingly widespread discrimination by charities exists not only with respect to employment, but ...


Radicals In Robes: A Review, Dru Stevenson Sep 2006

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis ...


Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice Sep 2006

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested ...


Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake Sep 2006

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that ...


The Use And Abuse Of Human Rights Discourse: A Legitimacy Test For Ngos, Igos And Governments, Eric Heinze Sep 2006

The Use And Abuse Of Human Rights Discourse: A Legitimacy Test For Ngos, Igos And Governments, Eric Heinze

ExpressO

Since the end of the Second World War, human rights have emerged as a standard for evaluating state conduct. As the stature of human rights has risen, however, the language and concepts of rights are increasingly misused. Claims are made by non-governmental organizations (NGOs), intergovernmental organizations (IGOs), or governments, who seek legitimacy for policies that are in fact highly partisan and even abusive of the values of human rights.

What counts, then, as a legitimate use of human rights discourse? Aren’t human rights policies always ‘political’? Can any meaningful distinction be drawn between a ‘human rights position’ and a ...


Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger Sep 2006

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy ...


The "American Rule" That Swallows The Exception, Joseph E. Slater Sep 2006

The "American Rule" That Swallows The Exception, Joseph E. Slater

ExpressO

The “American” rule of employment at-will cripples the effectiveness of the two most important exceptions to that doctrine, the National Labor Relations Act and Title VII. Scholars often cite at-will as an area in which exceptions swallow the rule but ignore the opposite effect the rule has in undermining rights widely viewed as fundamental. This article goes beyond the standard critiques of the NLRA and Title VII and uses two other areas of law to make this case. The impact of at-will on private sector labor rights under the NLRA is shown by comparing public sector employment. Public sector labor ...


A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch Sep 2006

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared ...


Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila Sep 2006

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent ...


Bizarro Statutory Stare Decisis, Jamie D. Prenkert Aug 2006

Bizarro Statutory Stare Decisis, Jamie D. Prenkert

ExpressO

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently ...