Law Commons^™

Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman

Margo Schlanger

No abstract provided.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

Unwrapping Racial Harassment Law, Pat K. Chew

Articles

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants, …

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

ExpressO

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Moving From Impunity To Accountability In Post-War Liberia: Possibilities, Cautions, And Challenges, Rena L. Scott

ExpressO

Liberia has become the quintessential example of an African failed state. Though Liberia’s civil war is officially over, war criminals are free and some are even helping run the transitional government under the authority of Liberia’s Comprehensive Peace Agreement (CPA). This peace agreement calls for the consideration of a general amnesty for those involved in the Liberian civil war alongside the parceling of governmental functions among members of various rebel groups. The drafters of the agreement claim that this was the only viable solution for sustainable peace in Liberia. Meanwhile, Charles Taylor relaxes in Nigeria’s resort city of Calabar. To …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Procedural Due Process Aspects Of District Of Columbia Eviction Procedures, Lynn E. Cunningham

ExpressO

The District of Columbia Superior Court, Landlord and Tenant Branch, administers the local Forcible Entry and Detainer statute in a manner that arguably violates standards of adequate notice under the Due Process Clause.

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

Fifteen Famous Supreme Court Cases From Georgia, Dan T. Coenen

Scholarly Works

John Inscoe, UGA professor of history and editor of the New Georgia Encyclopedia, invited Hosch Professor Dan T. Coenen to contribute a series of essays on the most significant U.S. Supreme Court cases that originated in the state of Georgia. This article, which proposes an unranked top 15 list, is built on this work.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Resisting Retreat: The Struggle For Equity In Educational Opportunity In The Post-Brown Era, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Determinants Of Civil Rights Filings In Federal District Court By Jail And Prison Inmates, Margo Schlanger, Anne Morrison Piehl

Margo Schlanger

No abstract provided.

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Publications

Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class …

Race And The Georgia Courts: Implications Of The Georgia Public Trust And Confidence Survey For Batson V. Kentucky And Its Progeny, George W. Dougherty, Randy Beck, Mark D. Bradbury

Scholarly Works

Put simply, there is a perception among many Georgians that the court system treats minorities worse than whites. This Essay considers implications of the Georgia findings for a line of United States Supreme Court decisions designed to prevent racial discrimination by trial lawyers in the selection of trial juries.

Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

Deborah M. Weissman

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …

A New Look At Sexual Harassment Under The Fair Housing Act: The Forgotten Role Of §3604(C), Robert G. Schwemm, Rigel C. Oliveri

Law Faculty Scholarly Articles

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.

Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock-step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree—and only to the same degree—as it is prohibited …

Let The Jury Decide: The Gap Between What Judges And Reasonable People Believe Is Sexually Harassing, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Race, Class, And Legal Ethics In The Early Naacp (1910-1920), Susan D. Carle

Susan D. Carle

Discriminatory Housing Statements And §3604(C): A New Look At The Fair Housing Act’S Most Intriguing Provision, Robert G. Schwemm

Law Faculty Scholarly Articles

Today, more than three decades after the 1968 Fair Housing Act ("FHA") banned such behavior, blatant discrimination—often accompanied by racist slurs and other explicitly discriminatory statements—continues to plague America's housing markets. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, but also contained a specific prohibition, § 3604(c), banning all discriminatory housing statements. Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, § 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate.

Part I of the …

The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake

Articles

Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …

Using § 1983 To Enforce Title Vi's Section 602 Regulations, Bradford Mank

Faculty Articles and Other Publications

This Article examines the circumstances under which § 1983 suits may be used to enforce agency regulations in general, and Title VI's disparate impact regulations in particular.