Law Commons^™

A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor

ExpressO

The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim. The Supreme Court sought …

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Winter For Purehearts, Michael Cavendish

ExpressO

The worst judicial opinion ever written issued from Florida on an anonymous day in 1864. The opinion discussed slavery. More accurately, it cherished slavery—lionizing the then extant practice in the way the British sing of the sea. As a legal precedent, it was a dangerous opinion because it was presented as something basic, fundamental and inexorable, something not to be questioned. It was dangerously simple when conveyed to accepting minds in the way a cold knife is dangerous in angered hands. The opinion, Miller v. Gaskins, is a vital study for researchers surveying the lines of human fallacy that in …

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a lively scholarly …

After The Gold Rush?: Grutter, Sander And ‘Affirmative Action’ “On The Run…” In The Twenty-First Century, Anthony Vincent Baker

ExpressO

No abstract provided.

Is It "Charitable" To Discriminate?, Nicholas A. Mirkay

ExpressO

With federal subsidies to charitable organizations exceeding $232 billion for fiscal years 2007 to 2011, the public benefit conferred by such organizations is an increasingly hot topic for Congress, the Internal Revenue Service and the entire nonprofit sector. Despite the national debate over nonprofit versus for-profit hospitals and excessive executive compensation, and the call for stricter governance and regulation, one recurring activity of charities appears to fly under the radar of reformers – discrimination. As illustrated in real-life occurrences contained in pages 3 and 4 of the article, seemingly widespread discrimination by charities exists not only with respect to employment, …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

The Use And Abuse Of Human Rights Discourse: A Legitimacy Test For Ngos, Igos And Governments, Eric Heinze

ExpressO

Since the end of the Second World War, human rights have emerged as a standard for evaluating state conduct. As the stature of human rights has risen, however, the language and concepts of rights are increasingly misused. Claims are made by non-governmental organizations (NGOs), intergovernmental organizations (IGOs), or governments, who seek legitimacy for policies that are in fact highly partisan and even abusive of the values of human rights.

What counts, then, as a legitimate use of human rights discourse? Aren’t human rights policies always ‘political’? Can any meaningful distinction be drawn between a ‘human rights position’ and a ‘partisan …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

The "American Rule" That Swallows The Exception, Joseph E. Slater

ExpressO

The “American” rule of employment at-will cripples the effectiveness of the two most important exceptions to that doctrine, the National Labor Relations Act and Title VII. Scholars often cite at-will as an area in which exceptions swallow the rule but ignore the opposite effect the rule has in undermining rights widely viewed as fundamental. This article goes beyond the standard critiques of the NLRA and Title VII and uses two other areas of law to make this case. The impact of at-will on private sector labor rights under the NLRA is shown by comparing public sector employment. Public sector labor …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Bizarro Statutory Stare Decisis, Jamie D. Prenkert

ExpressO

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

Forgotten Racial Equality: Implicit Bias, Decision-Making And Misremembering, Justin D. Levinson

ExpressO

This Article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways. Such an argument bridges discourse in implicit social cognition, memory studies, and legal decision-making. Social cognition research indicates that implicit racial biases are automatic, pervasive, and often operate without conscious awareness. Memory studies demonstrate that memory errors are meaningful and systematic, and are often facilitated by stereotypes. Decision-making theory teaches that memory errors can not only affect the results of individual decision-making processes, but also that group deliberations are unlikely to resolve these errors. The author argues …

Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson

ExpressO

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.

These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an applicant’s …

Revitalizing Our Urban Core Without Marginalizing Our Core People: Closing Tax Credit Loopholes For The Wealthy While Generating Ethnic Entrepreneurial Self Help Alternatives To Subsidized Gentrification, Roger M. Groves

ExpressO

This article provides the most comprehensive analysis to date of the New Markets Tax Credits program established by Congress. The purpose of the NMTCs is to use tax credits as incentives for investors to provide equity funds into low income areas. The article reveals that over $2 billion of federal tax subsidies that have been allocated to gentrified projects for the wealthy, rather than the intended beneficiaries – low income residents in the urban core – as Congress intended. The article proposes amendments to the statute and regulations to close unintended loopholes.

The article also creates a model for a …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Volunteer Discrimination, Angela Onwuachi-Willig

ExpressO

This Essay analyzes a debate regarding the potential racial motivations behind the new National Basketball Association (NBA) Dress Code. Specifically, this Essay examines whether the defense of the new NBA dress code by some Blacks—as pure business, free from racial discrimination—should be viewed as action negating other Blacks’ claims of improper racial motivation behind the policy. I contend that, rather than negating allegations of racism, the reactions of the policy-defending black NBA athletes and leaders only highlight the immense pressures that Blacks have in our society to perform their identity in a way that is racially palatable. In particular, I …

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …

The Capabilities Approach As A Solution To The Need For A More Encompassing Definition Of Poverty, Sarah L. Harrington

ExpressO

This Comment addresses the historical and present manifestations that result from the lack of values reflected in the federal poverty line. An alternative to this measure may be based on the capabilities approach. This approach looks further than simply the means to equality, and instead focuses on the ends--that is achieving well-being, and the freedom to pursue well-being. The capabilities approach is further described through an example of an effort to operationalize the theory by the United National Development Programme. Ultimately, this Comment proposes that renewed attention be focused on reforming the federal poverty line in light of the philosophical …

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

ExpressO

“The Pocahontas Exception” confronts the legal existence and cultural fascination with the eponymous “Indian Grandmother.” Laws existed in many states that prohibited marriage between whites and nonwhites to prevent the “quagmire of mongrelization.” Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to white racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statues, and analyzes the concomitant exemptions in contemporary social practice. With increasing …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian …

Revitalizing Our Urban Core Without Marginalizing Our Core People: Closing Tax Credit Loopholes For The Wealthy While Generating Ethnic Entrepreneurial Self Help Alternatives To Subsidized Gentrification, Roger M. Groves

ExpressO

This article provides the most comprehensive analysis to date of the New Markets Tax Credits program established by Congress. The purpose of the NMTCs is to use tax credits as incentives for investors to provide equity funds into low income areas. The article reveals that over $2 billion of federal tax subsidies that have been allocated to gentrified projects for the wealthy, rather than the intended beneficiaries – low income residents in the urban core – as Congress intended. The article proposes amendments to the statute and regulations to close unintended loopholes.

The article also creates a model for a …

Reasonable Burdens: Resolving The Conflict Between Disabled Employees And Their Co-Workers, Nicole Porter

ExpressO

This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in US Airways v. Barnett) have weighed in on this debate but their analyses fall short of the ultimate goal of this Article—to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees. In order to achieve that goal, this Article proposes a statutory amendment …