Law Commons^™

Bridging The Barriers: Public Health Strategies For Expanding Drug Treatment In Communities, Ellen M. Weber

Faculty Scholarship

States around the country have begun to adopt programs to divert drug offenders from jails and prisons to community-based drug treatment services. For this strategy to succeed, local officials will need to expand the availability of outpatient and residential treatment programs and address the barriers to siting treatment services, the most significant of which are community opposition and government zoning policies that facilitate community resistance. Civil rights laws, including the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA), prohibit zoning discrimination against persons with histories of alcoholism and drug dependence and provide a solid legal foundation for …

Toward A More Perfect Union: The Road To Marriage Equality For Same-Sex Couples, Jennifer L. Levi

Faculty Scholarship

The Author believes that civil unions have become synonymous with inequality. In this posture, the term inequality should be descriptive rather than subjective. She argues that civil unions relegate gay and lesbian couples to second-class status. However characterized or defined, civil unions are not marriages. Those two statuses are not equivalent; they are not equal. Within that framework, in order for any one person to decide where he or she stands on the issue of whether gay and lesbian couples should be entitled to marriage, civil unions, something else, or nothing, he or she must first understand why marriage matters …

Testing Applicants With Disabilities, Gregory M. Duhl, Stuart Duhl

Faculty Scholarship

All jurisdictions provide reasonableaccommodations for applicants with disabilities who are otherwise qualified to sit for the bar examination. The provision of accommodations is primarily a result of the comprehensive federal law known as the Americans with Disabilities Act (“the ADA”), passed by Congress in 1990 to prohibit discrimination against persons with disabilities. The ADA protects both applicants with physical disabilities and those with mental disabilities, and accommodations include not only additional testing time, longer and more frequent breaks between testing sessions, and private testing rooms, but also other auxiliary aids and services designed to enable effective communication to and from …

Does Grutter Offer Courts An Opportunity To Consider Race In Jury Selection And Decisions Related To Promoting Fairness In The Deliberation Process?, Phoebe A. Haddon

Faculty Scholarship

This essay considers whether the two recent Supreme Court affirmative action cases, the Michigan law school and undergraduate cases, Grutter v. Bollinger and Gratz v. Bollinger, provide support for opening the process of jury selection and deliberation to more fully include people of color and other under-represented groups and their experiences. I shall argue that these recent affirmative action cases can provide some support for ensuring better representation of people of color in the jury selection process, challenging the pre-textual use of peremptories and opening opportunities to talk about race during trials. The Court's reasoning in Grutter that diversity is …

Brown At 50: Reconstructing Brown'S Promise, Taunya Lovell Banks

Faculty Scholarship

Today the measure of equal education for black children often is the racial composition of the school population rather than the quality of education received. Increasingly educational achievement for children of all races is tied to socioeconomic status. Since whites as a group are more affluent than non-whites, race and class tend to get conflated leaving uninformed people to conclude that racial integration alone is the measure of equal educational opportunities for black and other non-white children. Legal scholars writing about equal educational opportunities tend to focus either on ways to achieve racial integration or funding equality. Few scholars explore …

Building A Digital Collection: The Making Of Historical Publications Of The United States Commission On Civil Rights, Bill Sleeman

Faculty Scholarship

This article briefly explores the technical and administrative tasks required to create a digital resource devoted to the U.S. Commission on Civil Rights.

Counting The Dragon's Teeth And Claws: The Definition Of Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

n his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes Jr. warned against blind imitation of the past and called for "enlightened skepticism" toward the law. He described the first step of this critical examination as getting "the dragon out of his cave and on to the plain and in the daylight" so that "you can count his teeth and claws and see just what is his strength." Over the past thirty years, disagreements over the appropriate definition of "paternalism" have often masked further disputes over the circumstances under which the restriction of substantially autonomous self-regarding conduct …

Difficult Decisions During Wartime: A Letter From A Non–Alien In An Internment Camp To A Friend Back Home, Frank H. Wu

Faculty Scholarship

No abstract provided.

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which …

George Bundy Smith - A Good Lawyer , John D. Feerick

Faculty Scholarship

As I have noted elsewhere, if I were asked to pick one moment in the legal history of the country where what ought to be came together with what is, it would be the unanimous decision of nine white men in Brown v. Board of Education dismantling the segregation of white and black children in public education. This was a watershed moment in the history of law. As Judge Robert Carter of the United States District Court for the Southern District of New York has written, this decision will "always stand at the highest pinnacle of American judicial expression because …

Understanding The Mark: Race, Stigma, And Equality In Context, Robin A. Lenhardt

Faculty Scholarship

In its Fourteenth Amendment jurisprudence, the Supreme Court regards intentional discrimination as the principal source of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social science insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies challenged on the grounds of race. Drawing on the social science work of Erving Goffman and the ground-breaking work of Charles H. Lawrence, Professor Lenhardt argues that courts should …

Causation In Antidiscrimination Law: Beyond Intent Versus Impact , Sheila R. Foster

Faculty Scholarship

Antidiscrimination law and scholarship have long been engaged in the debate over whether a discriminatory intent or disparate impact test best captures the type of discrimination the law should, or can, prohibit. This Article suggests that we move beyond this dichotomous debate and focus instead on how courts reason about discrimination cases brought under both the intent and impact doctrines. This Article identifies a distinct pattern, or framework, in the way courts reason about discrimination in both types of cases that defies neat doctrinal labels. reasoning process, which I shorthandedly refer to as "causation," is at the heart of evidentiary …

Challenge Of Environmental Justice, The, Sheila R. Foster

Faculty Scholarship

The residents of Camden, New Jersey do not live in a bustling city as do residents living across the Delaware River in Philadelphia, Pennsylvania. Instead, Camden's largely minority population lives in an environmentally and economically devastated neighborhood replete with two Superfund sites. Garbage incinerators, sewage treatment plants and polluting factories have been placed in Camden because the poor have historically been less likely to protest than wealthier communities. In 1997, concerned Camden residents formed the South Camden Citizens in Action ( SCCA ) association to confront the continued encroachment by polluting factories and sewage treatment centers threatening their lives and …

Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles

Faculty Scholarship

In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that the classifications based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the …

Precursors Of Rosa Parks: Maryland Transportation Cases Between The Civil War And The Beginning Of World War I, David S. Bogen

Faculty Scholarship

When Rosa Parks refused to move to a seat in the back of the bus in Montgomery, it sparked the boycott and was a critical event in the Civil Rights movement. But Mrs. Parks was the culmination of a long tradition of resistance to segregation. Many teachers, ministers, businessmen and ordinary citizens refused to accept second class treatment on the railways and waterways of Maryland between the end of the Civil War and the beginning of World War I, and took their protest to the courts. Facing hostile state courts after the Civil War, African-American plaintiffs needed to access the …

In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Solving Problems Vs. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

Faculty Scholarship

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past fifty years. That view, Legal Liberalism, …

Exceeding Our Boundaries: Transnational Employment Law Practice And The Export Of American Lawyering Styles To The Global Worksite, Susan Bisom-Rapp

Faculty Scholarship

Until very recently, one almost never heard mention of international issues among labor and employment law practitioners in the United States. Conventional wisdom considers this practice area quintessentially local. Identifying a trend that unseats this taken-for-granted notion, the article details the birth of a new employment law sub-specialty: international labor and employment law. Some U.S. management attorneys, working with transnational legal teams comprised of lawyers from foreign firms, are beginning to coordinate multinational clients' employment law projects across multiple national jurisdictions. While the world's legal regimes that regulate labor markets are remarkably culturally specific, the formation of transnational networks of …

Using An “Incidents Of Marriage” Analysis When Considering Interstate Recognition Of Same-Sex Couples’ Marriages, Civil Unions, And Domestic Partnerships, Barbara Cox

Faculty Scholarship

Despite discussions for over ten years, we still do not have any decisions on interstate or international recognition of marriages by same-sex couples. We do have, however, six cases in the United States on the interstate recognition and validation of Vermont civil unions. In these six cases, same-sex couples from six different states who had entered into Vermont civil unions came to their courts seeking resolution of legal issues that arose in their relationships. The rest of this article now turns to these six decisions and considers how each court dealt with the same-sex couple seeking legal assistance with the …

To Be Brown In Brazil: Education And Segregation Latin American Style Colloquium - Relearning Brown: Applying The Lessons Of Brown To The Challenges Of The Twenty-First Century, Tanya K. Hernandez

Faculty Scholarship

As a scholar who studies civil rights movements from a comparative perspective, the commemoration of the fiftieth anniversary of the Brown v. Board of Education1 decision causes me to query the power of Brown as a symbol of equality outside of the United States. Because there is a larger community of African descendants living in Latin America and the Caribbean than there is in the United States, examining the role of Brown in Latin America and the Caribbean is particularly worthwhile. Furthermore, focusing on the Latin American and Caribbean contexts is also relevant due to the significant influence of the …

Panel Three: Introduction, Suzanne B. Goldberg

Faculty Scholarship

I think some of my colleagues will ask questions about these cases, to ask who is a man or woman, but if the question is legally, what is male or female, and if you think about the questions that you've read, say, in common law out of the Supreme Court – and I'll just talk about discrimination cases, although I think you can talk about other ones, too – think about the sex discrimination cases. The struggle is about, what is discrimination, but the Court in Craig v. Born is talking about different control restrictions for men and women. Or …

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.

"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …

Lawrence & The Road From Liberation To Equality, Suzanne B. Goldberg

Faculty Scholarship

To think about the future of lesbian and gay rights in the wake of Lawrence v. Texas, we inevitably need to look to the past. After all, the movement that first sparked efforts to challenge statutes like the Texas "Homosexual Conduct" law was not a rights movement at all. Instead, when lesbian, gay, bisexual, and transgender individuals began organizing in 1969, their rallying cry was for liberation. To gauge what Lawrence means, then, we need to think in terms of both liberation, as the movement's early aim, and legal equality, which is the dominant demand of today's activists and advocates. …

Reparations And Equal Opportunity, David B. Lyons

Faculty Scholarship

This paper offers a sympathetic interpretation of reparations claims made on behalf of African Americans and suggests how they could properly be honored. It reviews the federal government’s role in supporting racial subordination and its continuing failure to address the inequitable consequences, which public policy now largely ignores. It sketches a national rectification project, comprising a comprehensive set of public programs that would attack the persisting legacy of slavery and Jim Crow. The programs can be justified by the government’s duty to insure equal opportunity for our society’s children and, most urgently, by corrective justice, because the inequities are attributable …

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court's most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way …