Supreme Court of the United States Commons^™

Defining Disparate Treatment: A Research Agenda For Our Times, Deborah Hellman

Indiana Law Journal

Both statutory and constitutional laws prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits specifically defined. As a result, courts fill in these definitions and do so with consequential results. The boundaries they draw often determine whether or not a law, policy, or action constitutes disparate treatment on the basis of a legally protected trait. As disparate treatment calls for a significantly heavier burden of justification than does disparate impact, the key move putting laws, policies, and the acts of individuals into one category or the other happens in this definitional step.

Defining …

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility …

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …