Digital Commons Network^™

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

The Status Of Women Under International Human Rights Law And The 1995 Un World Conference On Women, Beijing, China, Margaret Plattner

Kentucky Law Journal

No abstract provided.

Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson

Faculty Scholarship

Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and …

Game Theoretic And Contractarian Paradigms In The Uneasy Relationship Between Regulators And Regulatory Lawyers, Richard W. Painter

Fordham Law Review

No abstract provided.

Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee

Scholarly Works

In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate …

Understanding Constitutional War Powers Today: Why Methodology Matters, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

With the Cold War over, Americans have grown more introspective about the role of the United States in global affairs. It could hardly be otherwise. America's rise to military preeminence, its overseas commitments and priorities, and its basic sense of international purpose all were forged by circumstances of the past fifty years that have changed dramatically. The Soviet threat is gone; once shaky allies in Europe and Asia are now comparatively stable and prosperous; the specter of cataclysmic nuclear war has receded while regional conflicts, ethnic strife, and humanitarian emergencies have moved to center stage. Although the world is no …

Constitutional Fairness Or Fraud On The Constitution--Compensatory Discrimination In India, E. J. Prior

Case Western Reserve Journal of International Law

No abstract provided.

Nuremberg And Sovereignty, Henry T. King Jr.

Case Western Reserve Journal of International Law

No abstract provided.

Preaching Propriety To Princes: Grotius, Lipsius, And Neo-Stoic International Law, Christopher A. Ford

Case Western Reserve Journal of International Law

No abstract provided.

Biological Continuity And Great Ape Rights, Mark A. Krause

Animal Law Review

No abstract provided.

Mslj Backissues, For The Record And For The Record Extra Newsletters, And Videos Available Through The National Sports Law Institute

Marquette Sports Law Review

None

Comments: Gulf War Syndrome: Will The Injuries Of Veterans And Their Families Be Redressed?, Kevin J. Dalton

University of Baltimore Law Review

No abstract provided.

Moral Maturity, Joel Levin

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Mandatory Arbitration Of Individual Employment Rights: The Yellow Dog Contract Of The 1990s, Katherine Van Stone Wezel

Denver Law Review

No abstract provided.

The Politics Of Family Structure, Arlene Skolnik

Santa Clara Law Review

No abstract provided.

Death Penalty As The Answer To Crime: Costly, Counterproductive And Corrupting [Advocate In Residence], Stephen B. Bright

Santa Clara Law Review

No abstract provided.

Comparative Risk Assessment In New York, Michael B. Gerrard, Deborah Goldberg

Faculty Scholarship

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This article will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context. The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. …

Hiv-Aids, Infected Surgeons And Dentists, And The Medical Profession's Betrayal Of Its Responsibility To Patients, Michael L. Closen

NYLS Law Review

No abstract provided.

Unemployment Compensation: Continuity, Change, And The Prospects For Reform, Jerry L. Mashaw

University of Michigan Journal of Law Reform

The Symposium proceedings for which this Introduction provides an overview had a decidedly reformative impulse and focus. Authors and discussants came together not just to ruminate about the future, but to grapple with concrete problems that are both a legacy of the past and the product of relatively recent changes. Reformers found much to criticize and to suggest, whether their focus was on stable structures or newly emerging issues. The purpose of this Introduction is to synthesize the views expressed and to reflect on them from the perspective of a student of benefits administration, but one not expert in the …

Rambo Depositions: Controlling An Ethical Cancer In Civil Litigation, Jean M. Cary

Hofstra Law Review

No abstract provided.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

Nuclear Weapons And The Laws Of War: Does Customary International Law Prohibit The Use Of Nuclear Weapons In All Circumstances?, Jill M. Sheldon

Fordham International Law Journal

This Note argues that customary international law does not prohibit the use of nuclear weapons in self-defense. Part I describes the characteristics of nuclear weapons, including their destructive capabilities and health effects. Part I also discusses the development of the laws of war and the process by which a generally accepted principle or practice ascends to customary international law. Further, Part I presents existing treaties concerning non-proliferation and other nuclear weapons-related issues. Part II examines the application of the laws of war to nuclear weapons use and the resulting conflict over the legality of the use of nuclear weapons. Part …

Changing The Constitutional Guarantee Of Voting Rights From Color-Conscious To Color-Blind: Judicial Activism By The Rehnquist Court, Carroll Rhodes

MC Law Review

Symposium - The Role of the United States Court of Appeals for the Fifth Circuit in the Civil Rights Movement

Main Currents In Early Multilateral Water Treaties: A Historical-Geographic Perspective, 1648–1948, James L. Wescoat

Colorado Environmental Law Journal

No abstract provided.

The Reemergence Of German Arms: How Far Will Germany's March Toward Full Use Of Military Force Go?, Walter J. Lemanski

Vanderbilt Journal of Transnational Law

In 1994, the German Federal Constitutional Court handed down a landmark decision redefining the constitutionality of German use of military force. For more than forty years, the German government claimed that the German Constitution forbade the use of military forces for other than the defense of NATO territory. The Federal Constitutional Court, however, held that a majority vote of Parliament was all that was required to commit forces to military actions sanctioned by collective security agreements. In 1995, for the first time since World War II, Germany sent offensive military forces into a combat zone. These events raise the question …

Going For The Gold: The Representation Of Olympic Athletes, Sara Lee Keller-Smith

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Law And Inequality: Race, Gender…And, Of Course, Class, Carroll Serron, Frank W. Munger

Articles & Chapters

This chapter discusses the concept of class in an important subfield, the sociology of law. Class, a pivotal institution of society, was central to the earliest studies of legal institutions and of law and inequality in particular. More recently, class has played a less important role. This chapter argues for the continuing importance of class and provides examples of its potential use in contemporary sociolegal research. The first part reviews early work that employed class and instrumental models of the state. Grounded, anti-formal models of law provided a contrasting view. Following wider trends in the discipline, sociology of law turned …

Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett

Journal Articles

Not long ago, the welfare reform debate took a provocative turn. New Jersey welfare recipients challenged the state's Family Cap rule, which denied additional cash aid to parents who conceive children while on welfare. Welfare rights activists argued that the rule "with[held] benefits to see if [this would] alter human behavior." They insisted that the innovative, but stern, Family Cap rules were effectively experiments on welfare recipients without their consent.

This is a powerful argument. After all, consent enjoys talismanic—if not sacramental—status in modem life and thought; it is our "master concept." But why? Why should consenting mean so much …

Who Should Regulate The Ethics Of Federal Prosecutors, Rory K. Little

Fordham Law Review

No abstract provided.

The Supreme Court Goes Dormant When Desperate Times Call For Desperate Measures: Looking To The European Union For A Lesson In Environmental Protection, Erin A. Walter

Fordham Law Review

No abstract provided.