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Articles 331 - 360 of 404
Full-Text Articles in Law
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Articles
In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …
School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake
School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake
Articles
This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …
Foreword: Politics, Pragmatism And The Courts, Anthony E. Varona
Foreword: Politics, Pragmatism And The Courts, Anthony E. Varona
Articles
No abstract provided.
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Articles
Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …
Victimized Twice -- The Intersection Of Domestic Violence And The Workplace: Legal Reform Through Curriculum Development, Lea B. Vaughn
Victimized Twice -- The Intersection Of Domestic Violence And The Workplace: Legal Reform Through Curriculum Development, Lea B. Vaughn
Articles
Domestic violence is at least a two-fold problem for American society. On the one hand, it is one of the leading causes of violence at the workplace against women. On the other, it prevents many women from attaining the economic security that would enable them to escape violence. After describing the background of this problem, this paper will canvass current legal remedies that are available to help battered women achieve economic security. This survey leads to the conclusion that the current pastiche of remedies is often ineffective because of their piecemeal approach to the problem, or because current doctrine does …
Reinventing Structural Reform Litigation: Deputizing Private Citizens In The Enforcement Of Civil Rights, Myriam E. Gilles
Reinventing Structural Reform Litigation: Deputizing Private Citizens In The Enforcement Of Civil Rights, Myriam E. Gilles
Articles
The aim of this Article is to explore the possibility of constructing a model that harnesses the power of private citizens to reform unconstitutional practices, particularly in the critical area of police-related rights violations. I seek here to reintegrate private citizens into the enforcement of public laws; to tap the private experiential and financial resources that were a necessary condition of the great structural reform efforts of the civil rights movement of the 1950s and 1960s.
The vehicle by which I propose to accomplish these ends is a simple, yet novel, amendment to 42 U.S.C. § 14141, the statute which …
The Cash Balance Controversy, Edward A. Zelinsky
Breaking The Code Of Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles
Breaking The Code Of Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles
Articles
No abstract provided.
En/Gendering Equality: Seeking Relief Under Title Vii Against Employment Discrimination Based On Sexual Orientation, Anthony E. Varona, Jeffrey M. Monks
En/Gendering Equality: Seeking Relief Under Title Vii Against Employment Discrimination Based On Sexual Orientation, Anthony E. Varona, Jeffrey M. Monks
Articles
No abstract provided.
Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley
Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley
Articles
This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.
Part II of the Article will examine how the ADA has affected the rights of an individual with a …
An Essay On Texas V. Lesage, Christina B. Whitman
An Essay On Texas V. Lesage, Christina B. Whitman
Articles
When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Articles
The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …
Recognizing Opportunistic Bias Crimes, Lu-In Wang
Recognizing Opportunistic Bias Crimes, Lu-In Wang
Articles
The federal approach to punishing bias-motivated crimes is more limited than the state approach. Though the federal and state methods overlap in some respects, two features of the federal approach restrict its range of application. First, federal law prohibits a narrower range of conduct than do most state bias crimes laws. In order to be punishable under federal law, bias-motivated conduct must either constitute a federal crime or interfere with a federally protected right or activity-requirements that exclude racially motivated assault, property damage and many other common violent or destructive bias offenses. In most states, however, hate crimes encompass a …
An Army Of Lovers?: Queering The Ministry Of Defense Report Of The Homosexual Policy Assessment Team, Bruce Carolan
An Army Of Lovers?: Queering The Ministry Of Defense Report Of The Homosexual Policy Assessment Team, Bruce Carolan
Articles
Certain queer theorists argue that gay men and lesbians are banned from military service in certain countries not due to a fear of otherness. Instead, they are prohibited from serving precisely because of a fear that the opposite might be true -- that introducing openly gay people into a 'homosocial' environment might destabilize accepted notions of sexuality among members of the service who presently constitute themselves as heterosexual. This article explores that idea in the context of the Report of the Homosexual Policy Assessment Team established to defend exclusion of openly gay people from military service in the United Kingdom. …
The Politics Of Race On The Electronic Highway: An Analysis Of The Video Dialtone Redlining Cases And The Nynex Consent Decree In Roxbury, Madeleine M. Plasencia
The Politics Of Race On The Electronic Highway: An Analysis Of The Video Dialtone Redlining Cases And The Nynex Consent Decree In Roxbury, Madeleine M. Plasencia
Articles
No abstract provided.
The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake
The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake
Articles
Title IX, like other sex discrimination laws, addresses discrimination that occurs because of an individual’s sex. Courts interpreting Title IX, like those interpreting Title VII of the Civil Rights Act of 1964, have struggled to demarcate a line separating discrimination because of sex from discrimination because of sexual orientation. This article constructs an argument for viewing anti-gay discrimination, and in particular anti-gay harassment between students, as a form of sex discrimination under Title IX. The article first explores why school inaction in the face of sexual harassment discriminates on the basis of sex. Although sex discrimination law generally has long …
Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff
Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff
Articles
Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.
The Disability Kaleidoscope, Mary Crossley
The Disability Kaleidoscope, Mary Crossley
Articles
The question of whom our society truly wants to protect from adverse discrimination based on bodily difference is ultimately a question for the body politic. The aim of this article, by contrast, is to use the analytical tools provided by scholars in the field of disability studies to scrutinize how lawmakers to date have understood the concept of impairment as one form of bodily difference. By viewing administrative and judicial treatments of impairment through a disability studies lens, I have sought to give the disability kaleidoscope a turn and thus to provide the reader with an altered view of impairment …
Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow
Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow
Articles
In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which …
The Stories, The Statistics And The Law: Why 'Driving While Black' Matters University Of Minnesota Law Review, Vol. 84, No. 2, 1999, David A. Harris
The Stories, The Statistics And The Law: Why 'Driving While Black' Matters University Of Minnesota Law Review, Vol. 84, No. 2, 1999, David A. Harris
Articles
Racial profiling of drivers - often called "driving while black" - has taken an increasingly important role in the public debate on issues of race and criminal justice. It is one of the few such issues that has penetrated not only the public discourse, but the legislative process as well. This article takes three different approaches in attempting to explain that racial profiling is important not only for its own sake, but because it is a manifestation - both a symbol and a symptom - of all of the most difficult problems that we face at the intersection of race …
Compulsory Arbitration Of Discrimination Claims And The Civil Rights Act Of 1991: Encouraged Or Proscribed?, Mark Adams
Compulsory Arbitration Of Discrimination Claims And The Civil Rights Act Of 1991: Encouraged Or Proscribed?, Mark Adams
Articles
No abstract provided.
Car Wars: The Fourth Amendment's Death On The Highway, David A. Harris
Car Wars: The Fourth Amendment's Death On The Highway, David A. Harris
Articles
In just the past few terms, the Supreme Court has issued several decisions that have increased police discretion to stop and question drivers and passengers and search both these persons and their vehicles. These cases are only the latest in a line that has slowly but surely made it ever easier for police to do these things without being concerned with procedural or constitutional obstacles.
This article traces the history of those cases, and argues that, however much protection the Fourth Amendment might accord to an ordinary citizen in his or her home or even walking down the street, it …
Afterword Beyond Sexual Orientation In Queer Legal Theory: Majoritarianism, Multidimensionality, And Responsibility In Social Justice Scholarship Or Legal Scholars As Cultural Warriors, Francisco Valdes
Articles
No abstract provided.
Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley
Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley
Articles
This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …
Damages For Unconstitutional Affirmative Action: An Analysis Of The Monetary Claims In Hopwood V. Texas, Richard Henry Seamon
Damages For Unconstitutional Affirmative Action: An Analysis Of The Monetary Claims In Hopwood V. Texas, Richard Henry Seamon
Articles
No abstract provided.
Toward Respectful Representation: Some Thoughts On Selling Same-Sex Marriage, Marc A. Fajer
Toward Respectful Representation: Some Thoughts On Selling Same-Sex Marriage, Marc A. Fajer
Articles
No abstract provided.
Queer Margins, Queer Ethics: A Call To Account For Race And Ethnicity In The Law, Theory, And Politics Of "Sexual Orientation", Francisco Valdes
Queer Margins, Queer Ethics: A Call To Account For Race And Ethnicity In The Law, Theory, And Politics Of "Sexual Orientation", Francisco Valdes
Articles
No abstract provided.
The Fearful Symmetry Of Gay Rights, Religious Freedom, And Racial Equality, Walter J. Walsh
The Fearful Symmetry Of Gay Rights, Religious Freedom, And Racial Equality, Walter J. Walsh
Articles
A decade has now passed since Julia Cooper Mack authored her most controversial judicial opinion, Gay Rights Coalition of Georgetown University Law Center v. Georgetown University. That opinion provoked two acts of Congress aimed at its reversal, newspaper editorials from coast to coast, and over one hundred scholarly authors debating its wisdom. In this short essay, I shall suggest that this extended hermeneutic debate has yet to touch upon the deepest implications of Judge Mack's Georgetown opinion. While recent scholarship on this story praises Judge Mack's unusual ability to reconcile clashing interest groups, a more accurate account might be …
Bowers V. Hardwick, Romer V. Evans, And The Meaning Of Anti-Discrimination Legislation, Marc A. Fajer
Bowers V. Hardwick, Romer V. Evans, And The Meaning Of Anti-Discrimination Legislation, Marc A. Fajer
Articles
No abstract provided.