Law Commons^™

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Punishing Bar Exam Policies On Menstrual Products Must Go, Elizabeth B. Cooper, Margaret E. Johnson, Marcy L. Karin

Menstrual Policies and the Bar

No abstract provided.

Acting Differently: How Science On The Social Brain Can Inform Antidiscrimination Law, Susan Carle

Articles in Law Reviews & Other Academic Journals

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between "us" versus "them" on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, …

Using The Ada's 'Integration Mandate' To Disrupt Mass Incarceration, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades. However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

All Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

The Notsogolden Years Why Hate Crime Legislation Is Failing A Vulnerable Aging Population, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

The Americans With Disabilities Act Of 1990 - Progeny Of The Civil Rights Act Of 1964, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Discrimination, Jobs, And Politics, Anita L. Allen

All Faculty Scholarship

No abstract provided.