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Articles 1 - 30 of 76
Full-Text Articles in Law
Poisoning The Well: Law & Economics And Racial Inequality, Robert Suggs
Poisoning The Well: Law & Economics And Racial Inequality, Robert Suggs
Robert E. Suggs
The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarf disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …
Bringing Small Business Development To Urban Neighborhoods, Robert E. Suggs
Bringing Small Business Development To Urban Neighborhoods, Robert E. Suggs
Robert E. Suggs
This article describes a race-neutral policy proposal designed to increase business formation and success rates for young urban African Americans. The proposal suggests using local governments' taxing authority, in a manner analogous to tax increment financing, to create financial incentives for successful small business owners to employ, and then mentor and train as business owners, young urban entrepreneurs from deteriorating neighborhoods. The amount of financial incentive varies directly with financial success of protégés and requires the transfer of some of the mentor’s social (reputational) capital to the protégé. Business activity has created wealth and economic mobility for other ethnic groups, …
Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks
Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks
Taunya Lovell Banks
In this Article Professor Banks argues that what makes many of filmmaker John Waters early films so subversive is his use of the “white-trash” body—people marginalized by and excluded from conventional white America—as countercultural heroes. He uses the white trash body as a surrogate for talk about race and sexuality in the early 1960s. I argue that in many ways Waters’ critiques of mid-twentieth century American society reflect the societal changes that occurred in the last forty years of that century. These societal changes resulted from the civil rights, gay pride, student, anti-war and women’s movements, all of which used …
Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey, Makau Wa Mutua
Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey, Makau Wa Mutua
Book Reviews
This review of Mary Dudziak’s hugely important book contends that the author conflates the struggle for civil rights in the United States with the struggle for black majority rule in Kenya. While the two struggles are linked by white domination and the quest for blacks to free themselves from that domination, the book fails to interrogate and contextualize the limitations of equal protection norms for minorities in two vastly different political milieus. Dudziak does not problematize Thurgood Marshall’s blind insistence that the independence Kenyan constitution accord the economically dominant and oppressive white minority in colonial Kenya the same equal protections …
Understanding Pleading Doctrine, A. Benjamin Spencer
Understanding Pleading Doctrine, A. Benjamin Spencer
Michigan Law Review
Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief' by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …
Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane
Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane
All Faculty Scholarship
The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The …
Testimony On The Employment Non-Discrimination Act (Enda) And The Religious Exemption : Hearing Before The H. Comm. On Education And Labor, 111th Cong., Sept. 23, 2009 (Statement Of Adjunct Professor David N. Saperstein, Geo. U. L. Center), David N. Saperstein
Testimony Before Congress
We are long past the point when our laws should permit discrimination against any individual because of their sexual orientation. Just as we do not tolerate behavior that discriminates based on race, gender, national origin or religion, so should we be clear about discrimination based on the characteristic of being gay or lesbian. For many of America’s faith traditions, this is a religious value. It is a moral value. And for all of us, it is of great social and economic value, as evidenced by the nearly 90% of Fortune 500 companies that already have policies consistent with ENDA. They …
Integration, Litigation, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby
Integration, Litigation, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby
Ruqaiijah A Yearby
Using nursing home care as an example, this article applies a public health policy perspective to the problem. I use empirical data to prove the persistence of racial inequities in health care, analyze the government policies that allow racial inequities to continue, and provide a solution of regulatory integration. Specifically, I propose that civil rights enforcement be integrated with the nursing home enforcement system, which has been aggressively enforced and monitored. There are many strategies that may lead to the adoption of this system. One such strategy is using the Medicaid Act to induce the government to fulfill its non-race …
Recent Decisions, Phoebe A. Haddon
Remedies And Damages For Violation Of Constitutional Rights, Frank Mcclellan, Phoebe Haddon
Remedies And Damages For Violation Of Constitutional Rights, Frank Mcclellan, Phoebe Haddon
Phoebe A. Haddon
No abstract provided.
Should Race Matter When Rectifying Past Errors?, Alan E. Garfield
Should Race Matter When Rectifying Past Errors?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Civil Rights In International Law: Compliance With Aspects Of The "International Bill Of Rights", Beth Simmons
Civil Rights In International Law: Compliance With Aspects Of The "International Bill Of Rights", Beth Simmons
Indiana Journal of Global Legal Studies
International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-à-vis their own governments. This article discusses the development of aspects of international law relating to civil rights and argues that if this body of law is meaningful, we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because doing so is not generally in the interest of potential "enforcers"), I argue that international civil rights treaties will have their greatest effect where stakeholders-local citizens-have …
Mental Health And The Law: Where Necessity Is The Mother Of Invention (Patent Pending), William W. Wood
Mental Health And The Law: Where Necessity Is The Mother Of Invention (Patent Pending), William W. Wood
Northern Illinois University Law Review
Mental health professionals, most notably the psychiatrists and other clinicians who work in the State of Illinois Operated Inpatient Psychiatric Treatment Facilities, are often frustrated by an inability to treat individuals who have been admitted to the state hospital. Recent changes to the Illinois Mental Health Code have made admission, but not treatment, easier for persons who have a severe mental illness. As treatment innovations develop, the interface of the legal system with the mental health system becomes increasingly important in balancing the often seemingly disparate and opposing goals of both treating persons with mental illnesses and ensuring that their …
Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Banks
Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Banks
Taunya Lovell Banks
This article examines the conflicting film narratives about the internment from 1942 through 2007. It argues that while later film narratives, especially documentaries, counter early government film narratives justifying the internment, these counter-narratives have their own damaging hegemony. Whereas earlier commercial films tell the internment story through the eyes of sympathetic whites, using a conventional civil rights template … Japanese and other Asian American documentary filmmakers construct their Japanese characters as model minorities — hyper-citizens, super patriots. Further, the internment experience remains largely a male story. With the exception of Emiko Omori’s documentary film memoir, Rabbit in the Moon (2004), …
A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson
A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson
Dale K Larson
While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and …
"Simplify You, Classify You": Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin
"Simplify You, Classify You": Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin
Georgia State University Law Review
No abstract provided.
Deinstitutionalization: Georgia's Progress In Developing And Implementing An "Effectively Working Plan" As Required By Olmstead V. L.C. Ex Rel, Amy Tidwell
Georgia State University Law Review
No abstract provided.
Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar
Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar
Daniel F. Piar
No abstract provided.
Global Crisis Writ Large: The Effects Of Being Stateless In Thailand On Hill-Tribe Children,, Joy K. Park, John E. Tanagho, Mary E. Weicher Gaudette
Global Crisis Writ Large: The Effects Of Being Stateless In Thailand On Hill-Tribe Children,, Joy K. Park, John E. Tanagho, Mary E. Weicher Gaudette
San Diego International Law Journal
According to the United Nations High Commission for Refugees (UNHCR), "[n]o region of the world has been left untouched by the statelessness issue." International law defines a stateless person as someone "who is not considered as a national by any state under the operation of its law." Yet across the nations, stateless persons do not desire citizenship simply for the sake of citizenship. Ultimately, citizenship, or membership in a nation, provides a link between an individual and that nation and carries with it fundamental benefits and rights. Correspondingly,lack of citizenship translates into a denial of benefits and rights, including basic …
Sexuality, Religion, And The Right Of Conscience, Emily R. Gill
Sexuality, Religion, And The Right Of Conscience, Emily R. Gill
Schmooze 'tickets'
No abstract provided.
Intragroup Discrimination: The Case For "Race Plus", Enrique R. Schaerer
Intragroup Discrimination: The Case For "Race Plus", Enrique R. Schaerer
Enrique R. Schaerer
The application of Title VII is uneven. The judiciary applies it to employment discrimination across groups, intergroup discrimination, but is reluctant to do so for discrimination within groups, intragroup discrimination. Even where Title VII recognizes intragroup discrimination, it does so unevenly. A “sex plus” doctrine is used to address intragroup sex discrimination, but no corresponding “race plus” doctrine has emerged for intragroup race discrimination. This Article calls attention to issues of intragroup discrimination, and proposes “race plus” as a natural extension of “sex plus” based on the text, legislative history, and statutory purpose of Title VII. This doctrinal tool would …
Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar
Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar
Daniel F. Piar
The thesis of the article is that the modern Supreme Court has come to use law just as the American Puritans did: as a tool for regulating and safeguarding the internal, spiritual needs of the populace. Through close readings of landmark civil rights cases, and of primary Puritan texts, I demonstrate that just as the Puritans were concerned with using civil authority to safeguard the soul’s progress to salvation, so does the modern Supreme Court use law to ensure what it sees as the proper conditions for spiritual development. I then remark on several implications of this parallel, including the …
Negro Blood In His Veins: The Development And Disappearance Of The Doctrine Of Defamation Per Se By Racial Misidentification In The American South, Samuel L. Brenner
Negro Blood In His Veins: The Development And Disappearance Of The Doctrine Of Defamation Per Se By Racial Misidentification In The American South, Samuel L. Brenner
Samuel L Brenner
Between the late eighteenth century and the middle of the twentieth century, a number of states in the American South and West (and at least one in the North) recognized some form of the doctrine of defamation per se by racial misidentification (DPSRM). By making a claim under this doctrine, white plaintiffs could recover from defendants who had falsely or mistakenly identified the plaintiffs as “colored,” “negro,” or the like, even absent proof of damages. By the early twentieth century, the doctrine appeared both powerful and monolithic in the Southern states, with courts routinely applying what appeared to be the …
Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Lovell Banks
Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Lovell Banks
Taunya Lovell Banks
This article examines the conflicting film narratives about the internment from 1942 through 2007. It argues that while later film narratives, especially documentaries, counter early government film narratives justifying the internment, these counter-narratives have their own damaging hegemony. Whereas earlier commercial films tell the internment story through the eyes of sympathetic whites, using a conventional civil rights template … Japanese and other Asian American documentary filmmakers construct their Japanese characters as model minorities — hyper-citizens, super patriots. Further, the internment experience remains largely a male story. With the exception of Emiko Omori’s documentary film memoir, Rabbit in the Moon (2004), …
Cyber Civil Rights, Danielle K. Citron
Cyber Civil Rights, Danielle K. Citron
Faculty Scholarship
Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital "scarlet letters" that ruin reputations. Today's …
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
All Faculty Scholarship
This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's …
Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, José F. Anderson
Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, José F. Anderson
All Faculty Scholarship
Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants' failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in …
The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko
The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko
Faculty Working Papers
This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
American University Law Review
Mary Beth Tinker recounts her upbringing and her family’s involvement in important issues of their day. Tinker discusses how her family’s commitment to social justice was shaped by her parents religious values, and how this shaped their commitments to civil rights, ultimately leading to their protesting ongoing injustices. In particular, Tinker discusses how she, her siblings, and friends wore black armbands calling for a Christmas Truce in the Vietnam War and how the case that went before the Supreme Court was one of a series of events in her family’s journey for equality.
The Idea Eligibility Mess, Mark Weber
The Idea Eligibility Mess, Mark Weber
College of Law Faculty
The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs, but students must meet the definition of “child with a disability” to be eligible for that entitlement. The law governing special education eligibility, however, is charitably characterized as a mess. There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child’s disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning …