Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois

Goutam U Jois

Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.

Torch (December 2007), Amy Homans, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

A Comprehensive Analysis Of The National Security Agency’S Wiretapping Program And Its Correlation With The Foreign Intelligence Surveillance Act, Michael Fraggetta

Michael Fraggetta

ABSTRACT This paper is an analysis of the unitary executive theory as ascribed to by the Bush/Cheney administration. The central focus of the paper analyzes the NSA wiretapping program, which was made public in 2005 and the correlation and support found for the program in the unitary executive theory. The paper proceeds with a brief history of the warrantless surveillance in the United States and the evolution of electronic surveillance jurisprudence culminating with the passage of the Foreign Intelligence Surveillance Act in 1978. The paper then explores the NSA program and analyzes, in depth, the legal arguments set forth by …

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

Ian Ayres

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter …

Suspension And The Extrajudicial Constitution, Trevor W. Morrison

Cornell Law Faculty Publications

What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular - and particularly important - judicial remedy unavailable for those detained by the government. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes.

This Article answers no. I previously offered that same answer in a symposium essay; …

Torch (November 2007), Amy Homans, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer

Howard Schweber

In this article, we visit the question of whether Australia has a “genuine” constitution with respect to guarantees of individual rights. The Australian constitutional text lacks explicit rights guarantees, but various types of rights protections have been derived from the text through judicial construction. To test the Australian model, we compare three other cases -- the United States, the U.K., and Israel -- with respect to the relationship between text, convention, and constitutional ethos. Australia does not fit cleanly into any of these three models, although it displays elements of each. More importantly, the High Court’s extrapolation of rights from …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

May Day Mea Culpa, Timothy Zick

Popular Media

No abstract provided.

Please Don’T Feed The Homeless, Timothy Zick

Popular Media

No abstract provided.

The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …

Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves

Lee Reeves

Many scholars have argued that the judiciary’s decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit’s employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. …

Ruling Out The Rule Of Law, Kim Forde-Mazrui

Kim Forde-Mazrui

Although criminal justice scholars continue to debate the overall value of the void-for-vagueness doctrine, broad consensus prevails that requiring crimes to be defined in specific terms reduces law enforcement discretion. A few scholars have questioned this assumption, but the conventional view remains dominant. This Article intends to resolve the question whether the void-for-vagueness doctrine really reduces police discretion. It focuses on traffic enforcement, a context in which laws are both specific and subject to discretionary enforcement. The Article concludes that specific rules do not constrain discretion unless judicial limits are placed either on the scope of activities that may be …

Torch (October 2007), Amy Homans, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

State Antidiscrimination Statutes And Implied Preemption Of Common Law Torts: Valuing The Common Law, Jared S. Gonzalez

South Carolina Law Review

No abstract provided.

Legal Archaeology And Feminist Legal Theory: A Case Study Of Gender And Domestic Violence, Debora L. Threedy

Debora L. Threedy

This article examines the case of State v. Jensen, in which a man was convicted for violating a protective order, only to have the conviction overturned by the appellate court on the ground that the female prosecutor, by using her three peremptory challenges to exclude three males from the jury, violated the constitutional guarantee of equal protection. Using the case as a jumping off point, the article goes on to consider how gender affects the legal system’s ability to deal with domestic violence. This paper is located at the intersection of the methodology of legal archaeology and feminist legal theory. …

Toward Real Workplace Equality: Nonsubordination And Title Vii Sex-Stereotyping Jurisprudence , Erin E. Goodsell

Erin E. Goodsell

This paper seeks to resolve a problem in federal anti-discrimination jurisprudence. The Supreme Court has held that plaintiffs may have a Title VII employment discrimination claim where they have been discriminated against based on an “impermissible sex stereotype,” but the lower federal courts, lacking a clear definition of what an “impermissible sex stereotype” may be, are inconsistent in their application of the sex-stereotyping doctrine. I argue that applying the feminist principle of nonsubordination, which examines whether legal rules or cultural practices serve to subordinate women to men and seeks to change those rules or practices that do, could help to …

Base Wretches And Black Wenches: A Story Of Sex And Race, Violence And Compassion, During Slavery Times, Jason A. Gillmer

Jason A Gillmer

This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity …

Thoughts On Jena And The Civil Rights Movement, Timothy Zick

Popular Media

No abstract provided.

Commentary: Justice Carter's Dissent In Hughes V. Superior Court Of Contra Costa County: Harbingers Of The 60'S Civil Rights Movement And Affirmative Action?, Frederic P. White

Frederic P. White Jr.

Commentary Abstract: Justice Jesse Carter, known as "The Great Dissenter" on the California Supreme Court for 20 years, wrote a dissent in opposition to allowing black workers to picket for employment in Richmond, California in the 1940's. The commentary explores how some of the language used in Justice Carter's dissent eventually adapted to the rhetoric used in the 1960's Civil Rights Movement and as in the continuing Affirmative Action debate.

The Contemporary Protest Movement, Timothy Zick

Popular Media

No abstract provided.

Public Protest, Militarization, And Critical Democratic Moments, Timothy Zick

Popular Media

No abstract provided.

The Story Of San Antonio Independent School Dist. V. Rodriguez: School Finance, Local Control, And Constitutional Limits, Michael Heise

Cornell Law Faculty Publications

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system …

Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske

Timothy J Droske

Native American criminal defendants are subject to disproportionately harsher sentences than similarly situated non-Indian defendants. This is due to the federal government’s exclusive criminal jurisdiction over Native Americans in Indian country for major crimes and the fact that federal sentences tend to be more severe than their state counterparts. Judges and commentators have proposed various means by which to reduce this disparity, but so far, all these proposals have either lacked the political capital to be enacted, or been frustrated by the rigidity of the Federal Sentencing Guidelines. The Supreme Court’s 2005 decision in United States v. Booker however, rendered …

A Philosophy Of Privitization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor B. Sorresso

Eleanor B Sorresso

Over the past two decades, managed care coverage programs have grown to dominate the private health insurance market. With the Balanced Budget Act of 1997 and the Medicare Modernization Act of 2003, managed care programs are now expanding to envelop our nation’s Medicare program as well. Proponents have based this expansion primarily on the premise that market economics provides a more efficient paradigm under which to regulate available health care resources. However, this premise of market efficiency proves problematic in the health care arena because it disregards issues of societal responsibility and the risk of socioeconomic stratification in the allocation …

Advancing Civil Rights, The Next Generation: The Genetic Information Nondiscrimination Act Of 2007 And Beyond, Morse Tan

Morse Tan Esq.

On the leading edge of civil rights law and bioethics/healthcare law, this Article analyzes the Genetic Information Nondiscrimination Act (GINA) of 2007, which would extend important protection against discrimination in health insurance and employment. GINA would also bolster genetic research by freeing research subjects from the threat of genetic discrimination. This Article demonstrates how GINA would further protect this society against the rising dangers of genetic discrimination beyond already existing federal and state law.

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

When The Immovable Object Meets The Unstoppable Force: Search And Seizure In The Age Of Terrorism, Anthony C. Coveny

Anthony C Coveny Ph.D.,J.D.,MA.

Abstract In 2001, the airborne attack on the World Trade Center, unlike any other in U.S. History, shook America to her core. In the process, the hand of government was strengthened at the expense of the constitutional liberties afforded by the Fourth Amendment. MacWade v. Kelly is just one more example of the increasing governmental interest in securing this nation from another terrorist attack, and in so doing, subjecting Americans to more “big brother” government. In MacWade, the New York Police Department faced down a 42 U.S.C 1983 challenge to its Container Inspection Program (CIP) in the name of security. …