Law Commons^™

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

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On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …

Restoring Civil Rights To The Disabled In Health Insurance, Valarie K. Blake

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Disability discrimination permeates the American health insurance system. This discrimination is problematic because adequate health benefits at affordable rates are integral to a disabled person’s full participation and integration in society. Civil rights laws for the disabled, like the Americans with Disabilities Act (ADA) and its predecessor, the Rehabilitation Act of 1973 (Rehab Act), have done much to improve the lives of disabled Americans in the workplace and in public life. Yet in healthcare, particularly healthcare financing, civil rights efforts have been stunted.

Civil rights in healthcare have failed for a number of reasons yet one reason is undoubtedly the …

Decriminalizing Childhood, Andrea L. Dennis

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Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

Rethinking The Americans With Disabilities Act’S Insurance Safe Harbor, Valarie K. Blake

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Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that …

Reproductive Selection Bias, Lauren R. Roth

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Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Different Lyrics, Same Song: Watts, Ferguson, And The Stagnating Effect Of The Politics Of Law And Order, Lonnie T. Brown

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This Article critically examines the Watts riots and their aftermath in comparison to the Ferguson situation, and demonstrates how little progress America has made in a span of fifty years in the area of race relations. More importantly, the Article points to the politics of “law and order” as the primary culprit for this static social condition.

Shame Agent, Joan W. Howarth

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As a nation, we have recently experienced a significant positive shift in norms against casual campus sexual violence. These changes are perhaps as dramatic as the attitudinal shifts over recent decades regarding drunk driving or cigarette smoking. In a world in which masculinity is too often associated with sexual conquest, and women still suffer under intense and conflicting pressures regarding their sexual behavior, pushing this potential transformation forward is both difficult and necessary. Enforcement of Title IX protections has become a crucial driver of much of this change.

This is an account of some of what I learned as a …

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook

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According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

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In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

Remedying Stigma-Driven Health Disparities In Sexual Minorities, Valarie K. Blake

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This paper explores the health harms of stigma in both patient-provider relationships and health insurer arrangements, before turning to legal solutions to combat healthcare discrimination on the basis of sex. It argues that Section 1557 of the Affordable Care Act is aptly designed to remedy stigma against sexual minorities in healthcare and has already done significant work to that end. This article also discusses the implications of repeal of either the ACA or Section 1557.