Law Commons^™

Blood Quantum, Race, And Identity In Indian Country, Sarah Montana Hart

Sarah Montana Hart

This article discusses how blood quantum laws affect racism and other relations between Indian nations and the United States.

Disability Rights, Welfare Law, Mark C. Weber

Mark C. Weber

This article asks how disability rights ideas can be reconciled with—and might transform—the law of public assistance. The social model of disability forms the basis of most disability rights thinking. This model recognizes that impairments do not by themselves disable, but disability instead arises from a dynamic between a person’s physical and mental conditions and society’s environmental and attitudinal barriers: Paraplegia does not cause disability but for stairs, curbs, and human attitudes that limit accessibility. The social model focuses on changing the environment; its close corollary, the civil rights approach to disability, looks to anti-discrimination law to remove limits on …

An Analysis Of China’S Human Rights Policies In Tibet: China’S Compliance With The Mandates Of International Law Regarding Civil And Political Rights, Richard Klein

Scholarly Works

No abstract provided.

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

Disability Trouble, Brad Areheart

College of Law Faculty Scholarship

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.An almost …

Torch (January 2011), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Introduction To The Symposium: Access To Justice: Mass Incarceration And Masculinity Through A Black Feminist Lens, Adrienne D. Davis, Annette R. Appell

Scholarship@WashULaw

This Introduction to the Symposium, Race to Justice: Mass Incarceration and Masculinity through a Black Feminist Lens, rehearses the animating forces that led to a colloquium and a series of papers that explore the question of mass incarceration and the negative state engagement surrounding it through gendered and feminist lenses. The Introduction explains how an analysis of mass incarceration through the lens of gender complicates what is often conceived as a story about race. Instead mass incarceration can be more deeply understood through its gendered effects on men and the women and children connected to those men. These connections include …

The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel

Richard H. Frankel

One of the most pressing issues in punitive damages law today is how to protect defendants from multiple punitive damages awards for a single course of conduct, while still ensuring that wronged plaintiffs can recover punitive damages. Numerous commentators have proposed non-opt-out class actions for punitive damages as the best solution to the multiple punishment problem because they subject defendants to a single collective punitive damages award that can be distributed equitably across all injured plaintiffs. This Article takes a contrary view. It argues that mandatory classes improperly deprive class plaintiffs of their right to opt out and pursue their …

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

When Rights Become Empty Promises: Promoting An Exclusionary Rule That Vindicates Personal Rights, Robert Bloom, Erin Dewey

Robert M. Bloom

The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante. The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which …

Building A Movement With Immigrant Workers: The 1972-74 Strike And Boycott At Farah Manufacturing, Maria L. Ontiveros

Maria L. Ontiveros

Between May, 1972 and February, 1974, thousands of Chicana workers struck Farah Manufacturing plants throughout Texas. They were joined in their efforts by the Amalgamated Clothing Workers of America who orchestrated nationwide pickets calling for a boycott of Farah slacks. The strike and boycott were supported by various civil rights groups, politicians and religious organizations. Working together, they caused a dramatic drop in sales, large operating losses and a substantial drop in the company's share price. After several victories before the National Labor Relations Board, the strike settled with the company rehiring 3,000 strikers and recognizing the union. The company, …

On Butlers, Architects, And Lawyers: The Professionalism Of "The Remains Of The Day" And Of "The Fountainhead", Susan Daicoff

Susan Daicoff

Several commentators have explored the relationship of a fictional character of the butler, Stevens, in Kazuo Ishiguro’s novel, The Remains of the Day, to the proper professional role of the lawyer, since the novel was published. The professionalism of Stevens is here compared to that of another fictional character, the architect, Roark, in Ayn Rand’s novel, The Fountainhead, as they might be applied in the legal profession. The relationship of empirical research on lawyers’ values, wellbeing, and decisionmaking preferences to these divergent approaches to professionalism is then explored. A diversity of approaches to professional role is proposed as most appropriate, …

Due Process In Civil Commitments, Alexander Tsesis

Alexander Tsesis

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

Material Witness Detentions After Al-Kidd, Wesley M. Oliver

Wesley M Oliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest …

The More Things Change...: Abortion Politics And The Regulation Of Assisted Reproductive Technology, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Abortion and assisted reproductive technology (“ART”) may seem paradoxical in reproductive health: a woman seeks to terminate a pregnancy in the first, while a woman goes through herculean attempts to attain one in the latter. In fact, they share fundamental concerns: women’s health and autonomy. Both include medical procedures, with potential health risks and benefits, and both help a woman choose whether and when to become a mother. Abortion and ART share another commonality: when these issues enter public and political discourse, consideration of women’s health often recedes into the background.

Far From The Classroom, The Cafeteria, And The Playing Field: Why Should The School's Disciplinary Arm Reach Speech Made In A Student's Bedroom?, Susan S. Bendlin

Susan S. Bendlin

The article addresses wehther public schools can regulate students' off-campus internet speech without violating the students' first amendment rights. The article argues that Tinker should be restricted to on-campus speech. The school's authority to regulate students' speech is based on special considerations that exist only in the context of school-supervised activities. Once the speaker moves off-campus, those special circumstances cease to exist. There appears to be no substantial justification for extending the regulatory power of the school far beyond the boundaries of the schoolyard, and federal circuit courts have recently addressed this issue in varying ways.

Conceptions Of Law In The Civil Rights Movement, Christopher W. Schmidt

Christopher W. Schmidt

No abstract provided.