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Articles 391 - 409 of 409
Full-Text Articles in Civil Rights and Discrimination
Selective Incorporation Revisited, Jerold H. Israel
Selective Incorporation Revisited, Jerold H. Israel
Articles
In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …
Federalism And Social Change, Terrance Sandalow
Federalism And Social Change, Terrance Sandalow
Articles
A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal …
Rewriting Roe V. Wade, Donald H. Regan
Rewriting Roe V. Wade, Donald H. Regan
Articles
Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade
Civil Rights Litigation After Monell, Eric Schnapper
Civil Rights Litigation After Monell, Eric Schnapper
Articles
This Article identifies the most important issues which must be dealt with after Monell v, Department of Social Services, 436 U.S. 658 (1978), and attempts to resolve them. Section I considers what rules and practices are "official acts, policies and customs" subjecting a government to suit under Monell. The second section analyzes the possible defenses available to a city; it concludes that the good faith immunity afforded to executive officials should not be extended to government entities, but that such entities should be afforded a somewhat narrower defense. Section III discusses the scope of injunctive relief available in …
Judicial Protection Of Minorities, Terrance Sandalow
Judicial Protection Of Minorities, Terrance Sandalow
Articles
In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, …
A New Dimension In Equal Protection?, Theodore J. St. Antoine
A New Dimension In Equal Protection?, Theodore J. St. Antoine
Articles
Two of America's most cherished values will collide head-on this year, when the U.S. Supreme Court comes to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color are taken into …
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Articles
Two of America's most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color …
Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine
Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine
Articles
Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell the story. …
The Realities Of Prisoners' Cases Under 42 U.S.C. § 1983: A Statistical Survey In The Northern District Of Illinois, William S. Bailey
The Realities Of Prisoners' Cases Under 42 U.S.C. § 1983: A Statistical Survey In The Northern District Of Illinois, William S. Bailey
Articles
The purpose of this article is to examine how prisoner section 1983 claims are treated, on a day to day basis, in the United States District Court for the Northern District of Illinois. To this end, all of the available prisoner section 1983 cases filed in the Northern District of Illinois Eastern Division in the years 1971 and 1973 have been reviewed. This material provides the data base for an analysis of the following issues: the veracity of the burden on the courts argument; the variations in the level of consideration given to different categories of prisoner section 1983 claims; …
Preferential Policies In Hiring And Admissions, James W. Nickel
Preferential Policies In Hiring And Admissions, James W. Nickel
Articles
No abstract provided.
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Articles
Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …
Alternatives To Civil Commitment Of The Mentally Ill: Practical Guides And Constitutional Imperatives, David L. Chambers
Alternatives To Civil Commitment Of The Mentally Ill: Practical Guides And Constitutional Imperatives, David L. Chambers
Articles
In 1930, Ford sold Fords only in black and states offered treatment for mental illness only in public mental hospitals. Today, new views of mental health care and mental health problems have begotten a galaxy of new treatment settings. Few cities can boast community-based programs sufficient to meet their needs, but almost all cities of any size rely increasingly on outpatient programs. The large public mental hospitals still stand, of course. Indeed, every year more people enter public hospitals than entered the year before. Over 400,000 Americans were admitted as inpatients to state and county mental hospitals last year.1 Partly …
Comment On Powell V. Mccormack, Terrance Sandalow
Comment On Powell V. Mccormack, Terrance Sandalow
Articles
The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …
Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel
Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel
Articles
In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggest that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine this. …
Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel
Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel
Articles
Of the many problems left unanswered in Baker v. Carr,' the one that has received the most attention both from lower courts and commentators is that of prescribing a specific standard for determining what constitutes a denial of "equal protection" in legislative apportionment.2 The starting point universally accepted - indeed, probably required by Baker - for attacking this problem is the definition of apportionment equality in terms of mathematical measurement of the individual's "voting power."3 Perfect equality in apportionment is viewed as requiring that each election district contain an equal population, so that every individual's vote in his district will …
On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel
On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel
Articles
The Tennessee reapportionment decision, Baker v. Carr,' has been popularly characterized as one of the "very few judicial decisions which have fundamentally reshaped our constitutional system."'2 Newspaper and magazine commentators generally have predicted that the decision of last March is likely to "change the course of our history" by producing a drastic alteration in the balance of power on the state political scene.3 While this end may be desirable,4 any such estimate of the future impact of the Baker decision, at least insofar as its legal consequence is concerned,5 seems not only premature but somewhat exaggerated. The future significance of …
Change In The Meaning Of Consortium, Evans Holbrook
Change In The Meaning Of Consortium, Evans Holbrook
Articles
LAWYERS have long boasted of the flexibility of the common law, of its ability to adapt itself to the needs of changing conditions of society, of its responsiveness to sociological progress. And while eager reformers have often-and with much reason complained that the law is laggard in its response to the needs of the people, yet it is clear that sooner or later the courts generally bring themselves into accord with "what is sanctioned by usage, or held by the prevailing morality or strong and preponderant public 'opinion to be greatly and immediately necessary to the public welfare." This responsiveness …
Race Segregation Ordinance Invalid, Henry M. Bates
Race Segregation Ordinance Invalid, Henry M. Bates
Articles
The opinion in Buchanan v. Warley reflects the confusion and difficulty of that troublesome problem, the place of the negro race in the United States, with which the case and the segregation ordinance of Louisville discussed therein are essentially concerned. The decision by a unanimous court reverses the holding of the Kentucky Court of Appeals, and declares that the ordinance violates the Fourteenth Amendment. This result is reached by one of those anomalous and objectionable devices which characterize our methods of solving fundamental constitutional questions. The case arose upon a bill for specific performance of a contract, whereby the plaintiff, …
Ho Ah Kow V. Matthew Nuan, Thomas M. Cooley
Ho Ah Kow V. Matthew Nuan, Thomas M. Cooley
Articles
"An ordinance of San Francisco, that every male person imprisoned in the county jail, under any judgment of the any court having jurisdiction in criminal cases in the city and county, should immediately upon his arrival at the jail, have the hair of his head 'cut or clipped to an uniform length of one inch from the scalp thereof,' and made it the duty of the sheriff to have this provision enforced, is invalid, being in excess of the authority of the municipal body....
The ordinance being directed against the Chinese only, imposing on them a degrading and cruel punishment, …