Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Georgetown University Law Center (3)
- Maurer School of Law: Indiana University (3)
- University of Pennsylvania Carey Law School (3)
- Case Western Reserve University School of Law (2)
- Cornell University Law School (2)
-
- Duke Law (2)
- University of Colorado Law School (2)
- University of Pittsburgh School of Law (2)
- American University Washington College of Law (1)
- Florida International University College of Law (1)
- Mississippi College School of Law (1)
- Penn State Law (1)
- Santa Clara Law (1)
- UIC School of Law (1)
- University of Richmond (1)
- University of South Carolina (1)
- Valparaiso University (1)
- Wayne State University (1)
- Keyword
-
- Discrimination (4)
- Brown v. Board of Education (3)
- Civil rights (3)
- Constitutional law (3)
- Fourth Amendment (3)
-
- Constitutional Law (2)
- Race discrimination (2)
- Title VII (2)
- Torture (2)
- 127 S. Ct. 2738 (2007) (1)
- 163 U.S. 537 (1869) (1)
- 347 U.S. 483 (1954) (1)
- 42 U.S.C. § 1983 (1)
- Affirmative action (1)
- African-Americans (1)
- Anthony Kennedy (1)
- Anti-subordination (1)
- Antitrust law (1)
- Belief liberty (1)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics (1)
- Civil Rights (1)
- Civil Rights Act of 1866 (1)
- Civil liberties (1)
- Color-blindness (1)
- Conflicting liberties (1)
- Congress (1)
- Constitution. 13th Amendment (1)
- Constitutional torts (1)
- Contract (1)
- Crime mapping (1)
Articles 1 - 29 of 29
Full-Text Articles in Constitutional Law
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise
Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise
Cornell Law Faculty Publications
No abstract provided.
Torture, With Apologies, Thomas P. Crocker
Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson
Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson
Law Faculty Publications
Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has “impliedly” foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new “preempting” federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish.
It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, …
The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache
The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache
Articles in Law Reviews & Other Academic Journals
This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …
Community, Diversity, And Equal Protection: The Louisville And Seattle School Cases (Symposium Introduction), Robert M. Ackerman
Community, Diversity, And Equal Protection: The Louisville And Seattle School Cases (Symposium Introduction), Robert M. Ackerman
Law Faculty Research Publications
No abstract provided.
U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero
U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero
Journal Articles
The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.
No Compensation For Slave Traders: Some Implications, 14 Tex. Wesleyan L. Rev. 289 (2008), Allen R. Kamp
No Compensation For Slave Traders: Some Implications, 14 Tex. Wesleyan L. Rev. 289 (2008), Allen R. Kamp
UIC Law Open Access Faculty Scholarship
No abstract provided.
Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin
Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin
Faculty Publications
In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.
Is Nominal Use An Answer To The Free Speech & Right Of Publicity Quandary?: Lessons From America’S National Pastime, Raymond Shih Ray Ku
Is Nominal Use An Answer To The Free Speech & Right Of Publicity Quandary?: Lessons From America’S National Pastime, Raymond Shih Ray Ku
Faculty Publications
No abstract provided.
A Constitutional Analysis Of Parents Involved In Community Schools V. Seattle School District No. 1 And Voluntary School Integration Policies, Angelo N. Ancheta
A Constitutional Analysis Of Parents Involved In Community Schools V. Seattle School District No. 1 And Voluntary School Integration Policies, Angelo N. Ancheta
Faculty Publications
On June 28, 2007, a sharply divided United States Supreme Court invalidated student assignment plans in Seattle, Washington and Louisville, Kentucky that were designed to promote racial diversity and to address racial isolation in K-12 education. By a 5-to-4 vote in Parents Involved in Community Schools v. Seattle School District No. I and McFarland v. Jefferson County Board of Education, the Court struck down voluntary integration plans under the "strict scrutiny" standard applied to race-conscious policies challenged under the Equal Protection Clause of the Fourteenth Amendment, and ruled that the plans were not narrowly tailored to the interests asserted by …
Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown
Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown
Articles by Maurer Faculty
No abstract provided.
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
Moral Conflict And Conflicting Liberties, Chai R. Feldblum
Moral Conflict And Conflicting Liberties, Chai R. Feldblum
Georgetown Law Faculty Publications and Other Works
The authors' goal in this chapter is to surface some of the commonalities between belief liberty and identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. She first wants to make transparent the conflict that she believes exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. The author believes those who advocate for LGBT equality have downplayed the impact of such …
Alternative State Remedies In Constitutional Torts, John F. Preis
Alternative State Remedies In Constitutional Torts, John F. Preis
Law Faculty Publications
In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …
Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda
Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda
Journal Articles
Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.
Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii
Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii
Georgetown Law Faculty Publications and Other Works
Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Faculty Publications
In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
Faculty Scholarship
In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …
The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart
The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart
Publications
Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
All Faculty Scholarship
Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.
A Closing Keynote: A Comment On Mass Incarceration In The United States, David Rudovsky
A Closing Keynote: A Comment On Mass Incarceration In The United States, David Rudovsky
All Faculty Scholarship
No abstract provided.
Government Workers And Government Speech, Helen Norton
Government Workers And Government Speech, Helen Norton
Publications
This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.
In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …
Lessons Learned From Comparing The Application Of Constitutional Law And Anti-Discrimination Law To African Americans In The U.S. And Dalits In India In The Context Of Higher Education, Kevin D. Brown, Vinay Sitapati
Lessons Learned From Comparing The Application Of Constitutional Law And Anti-Discrimination Law To African Americans In The U.S. And Dalits In India In The Context Of Higher Education, Kevin D. Brown, Vinay Sitapati
Articles by Maurer Faculty
In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country's population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% …
Government Data Mining: The Need For A Legal Framework, Fred H. Cate
Government Data Mining: The Need For A Legal Framework, Fred H. Cate
Articles by Maurer Faculty
The article examines the government's growing appetite for collecting personal data. Often justified on the basis of protecting national security, government data mining programs sweep up data collected through hundreds of regulatory and administrative programs, and combine them with huge datasets obtained from industry. The result is an aggregation of personal data - the "digital footprints" of individual lives - never before seen. These data warehouses are then used to determine who can work and participate in Social Security programs, who can board airplanes and enter government buildings, and who is likely to pose a threat in the future, even …
Reconstructing The Race-Sex Analogy, Serena Mayeri
Reconstructing The Race-Sex Analogy, Serena Mayeri
All Faculty Scholarship
No abstract provided.
Disintegration, Girardeau A. Spann
Disintegration, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The silver lining behind the Supreme Court's decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal "equality" that has historically …
The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman
The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman
Articles
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
Articles
This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …