Law Commons^™

Padilla V. Kentucky: Immigration Consequences Due To The Ineffective Assistance Of Counsel, Evangeline Pittman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley

Fran Quigley

When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.

Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.

That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. …

The Black Side Of The Mirror: The Black Body In The Workplace, Taunya Banks

Taunya Lovell Banks

No abstract provided.

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.

China's Labor Contract Law And The Liberalization Of Global Markets: Will Employees' Rights Equate To Employers' Nightmares?, Sharon Breckenridge Thomas

Faculty Publications and Presentations

Abstract: Lower labor costs and realization of profits have been key components in the expansion of the global market. As we continue to witness the prolific liberalization of the global market, it is essential that we remember the importance of human capital. Workers play a paramount role in the realization of continued and sustained global market growth. Paradoxically, sustained growth in the global market is also fueled by the absence of workers’ rights and the resulting reduction of labor costs. Thus, multi-national companies and workers employed by multi-national companies, have encountered a seeming contradiction of workplace realities. From a capitalistic …

China's Labor Contract Law And The Liberalization Of Global Markets: Will Employees' Rights Equate To Employers' Nightmares?, Sharon Breckenridge Thomas

S. Breckenridge Thomas

Abstract: Lower labor costs and realization of profits have been key components in the expansion of the global market. As we continue to witness the prolific liberalization of the global market, it is essential that we remember the importance of human capital. Workers play a paramount role in the realization of continued and sustained global market growth. Paradoxically, sustained growth in the global market is also fueled by the absence of workers’ rights and the resulting reduction of labor costs. Thus, multi-national companies and workers employed by multi-national companies, have encountered a seeming contradiction of workplace realities. From a capitalistic …

Torch (December 2009), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger

Michael Gruenberger

The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

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 …

Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers

Janice D. Villiers

Deoxyribononucleic acid (“DNA”) technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently DNA tests are not required, but may be recommended by the Department of Homeland Security when primary documentation such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a means of countering fraud and because of administrative convenience, but adoption of a wholesale policy of DNA testing …

Turning Back The Clock: Reexamining Powel V. Chaminade And The "Capable Of Ascertainment" Standard In Priest Sexual Abuse Litigation, Lauren A. Standlee

Lauren A Standlee

Missouri courts, like most others around the nation, continue to confront the dilemma of how to administer justice when faced with statute of limitations, on one hand, and a victim of childhood sexual abuse by a clergy member, on the other. The Missouri Supreme Court decided Powel v. Chaminade in 2006 and discussed how to apply the statute of limitations, governed in Missouri by the "capable of ascertainment" test, to cases of repressed memory. The article argues that post-Powel Missouri plaintiffs and their attorneys have erroneously viewed Powel’s holding as an invitation to file non-meritorious lawsuits; suits that remain barred …

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

No Harm, No Foul? A Critique Of The Current Legal Framework Dealing With Impermissible Closing Appeals To Racial Bias, Paul Christopher Estaris Torio

Paul Christopher Estaris Torio

No Harm, No Foul? examines the friction that exists between the core legal principles of zealous advocacy and equality in one particular but prominent context: racial appeals in closing arguments. Specifically, the article evaluates the harmless error principle, which underpins the current framework for either upholding or overturning a lower court’s decision on the grounds of improper race-based summations, and its role in exacerbating this friction.

The author argues that because the overall structure of the harmless error test gives attorneys the incentive to use racial appeals in closing argument, perhaps the most influential stage of a trial, the entire …

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and …

The True Cost Of Economic Rights Jurisprudence, Max Mccann

Max McCann

This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.

With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith

Heron Greenesmith

In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity.

Torch (November 2009), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Prisons Without Convicts: Why Similar Protections As Those Offered To Prison Inmates By The Constitution Should Be Extended To Immigrant Detainees, Paul Wayner

Paul Wayner

No abstract provided.

Burning Crosses On Campus: University Hate Speech Codes, Alexander Tsesis

Alexander Tsesis

Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning, at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, …

Turn The Chapter Or Change The Book: Taking Critical Race Theory Forward, Trevor Tan

Trevor Tan

Differentiations between groups are now conceived along cultural lines instead of morphological or geographical lines. This is substantively reflected in academia, law and practical experience. Adoption of an alter-cultural solution will sweep aside arbitrary limits based on an old idea of race, replacing them with porous and readily traversed boarders. It will place autonomy and self-agency firmly at the core of human ambition and achievement. I illustrate this by applying an altercultural lens to a persistent area of Critical Race debate – racial underrepresentation in the legal profession.

Critical Race literature should begin to adopt culture as its root concept, …

Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza G. Organick

Aliza G. Organick

When the UN Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in September, 2009, it was heralded as a major victory for all of the world’s Indigenous Peoples, as well as international human rights. This remarkable effort took over two decades to come to fruition and recognizes that Indigenous Peoples worldwide continue to suffer from the dispossession of their lands and resources and that existing human rights documents did not do enough to protect those rights. The Declaration not only reaffirms the basic human rights recognized in the Universal Declaration on Human Rights, …

Torch (October 2009), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

Community Policing Within A Counter-Terrorism Context: The Role Of Trust When Working With Muslim Communities To Prevent Terror Crime, Basia Spalek

basia spalek

Recently, community-based models of policing have gained increasing prominence within the context of counter-terrorism, an area that has traditionally been dominated by ‘hard’, top-down models of policing. The following article draws upon a research study that examined community policing within a counter-terrorism context within the UK in order to help shed light upon how police officers might work with communities in order to prevent terror crime. The article focuses in particular upon the notion of trust within a counter-terrorism context and reflects upon the importance of cultural intelligence for policing within a counter-terror context, a context marked by suspicion, distrust …

American With Disabilities Act Amendments Act: The Effect On Employers And Educators, Paul Anthony Race

Paul A Race

The American with Disability Act Amendment Act became law in 2009. In passing the Act, Congress moved to correct a trend by Courts and the EEOC to weaken the coverage of the ADA. The American with Disability Act Amendment Act became law in 2009. In passing the Act, Congress moved to correct a trend by Courts and the EEOC to weaken the coverage of the ADA. In this article, we look at the effects of the ADAAA upon both employers and educators within post-graduate school programs. Pursuant to the Act, institutions will be required to consider accommodations for an increasing …

Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …

Racial Profiling In America, April J. Walker

April J. Walker

No abstract provided.