Law Commons^™

Human Rights In The United States Courts: The Role Of Lawyers, Steven M. Schneebaum

Washington and Lee Law Review

No abstract provided.

Fax: The White House – May 7, 1998, Remarks By The President, Arab American Institute Conference, Office Of The Press Secretary

Saffy Collection - All Textual Materials

Bill Clinton’s speech for the Arab American Institute Conference May 7, 1998 at Grand Hyatt Hotel Washington, D.C.

And What Of The Meek?: Devising A Constitutionally Recognized Duty To Protect The Disabled At State Residential Schools, Yama Shansab

William & Mary Bill of Rights Journal

Section 1983 provides a statutory right to a remedy for Fourteenth Amendment due process violations. The Supreme Court has suggested that the state only has a duty to protect when an individual is incarcerated, involuntarily institutionalized, or has other similar restraints of his or her personal liberty. Based on this, courts generally have found that schools have no constitutional duty to protect their students against injury from other students or staff members. Lower courts have struggled with what constitutes other similar restraints, but have generally been unwilling to find that a state has a constitutional duty in all but the …

Justice John Marshall Harlan As Prophet: The Plessy Dissenter's Color-Blind Constitution, Molly Townes O'Brien

William & Mary Bill of Rights Journal

The concept of color-blindness has long elicited much debate over its precise meaning and the role it should play in jurisprudence. Such debate was catalyzed by Justice John Marshall Harlan's well-known Plessy dissent. In the wake of the efforts of both civil rights activists and conservatives to use color-blindness to further their respective goals, Professor O'Brien seeks to clarify Harlan's vision of color-blind jurisprudence and examines the ways in which recent Supreme Court decisions echo Harlan's concepts regarding a color-blind constitution.

Professor O'Brien first provides a brief introduction to the concept of color-blindness. O'Brien then examines Harlan's experiences in politics …

The Color Line Of Punishment, Jerome H. Skolnick

Michigan Law Review

If "the color line," (in W.E.B. Du Bois's 1903 phrase and prophecy) was to be the twentieth century's greatest challenge for the domestic life and public policy of the United States, the law has had much to do with drawing its shape. No surprise, this. By now, legal theorists accept that law does not advance in preordained fashion, immune from the sway of political interest, belief systems and social structure. Still, it is hard to exaggerate how powerfully the law has shaped the life chances of Americans of African heritage, for good or ill, and in ways that we scarcely …

The Erotics Of Torts, Carol Sanger

Michigan Law Review

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist . . . that . . . do[es] not respect the line between the intellectual and the sexual" (p. 12)." Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means - and what …

Progressive Era Race Relations Cases In Their "Traditional" Context, Mark V. Tushnet

Vanderbilt Law Review

The pioneering African-American historian Rayford Logan called the early years of the Progressive era the "nadir" of race relations in the United States. Historians and political scientists who study the Supreme Court generally agree that Supreme Court decisions are rarely substantially out of line with the kind of sustained national consensus regarding race relations that Logan described. Professors Bernstein and Karman point to popular culture, including the roaring success of D.W. Griffith's epic Birth of a Nation attacking Reconstruction and defending the Ku Klux Klan, and elite opinion such as the flourishing of scientific racism to demonstrate that there was …

Review Of What Are Freedoms For?, By John H. Garvey, Scott D. Pomfret

Michigan Law Review

In 1988, Jeffrey Kendall and Barbara Zeitler Kendall were married. Though Jeffrey was Catholic at the time and Barbara was Jewish, the couple agreed to raise their children in Barbara's faith. In 1991, Jeffrey joined Boston Church of Christ, a fundamentalist Christian church. The tenets of that faith include a belief that those who do not accept Jesus Christ are damned to Hell, where there will be "weeping and gnashing of teeth." Barbara's faith also underwent a change during the marriage: she became an Orthodox Jew. Citing irreconcilable differences, the Kendalls sought a divorce in November, 1994. Before their marriage …

Rough Terrain Ahead: A New Course For Racial Preference Programs, Jeremy Moeser

Mercer Law Review

Debate over affirmative action has dominated recent legislative and court agendas. In November 1996, for example, fifty-four percent of California voters approved a referendum, Proposition 209, which eliminated preference programs in state and local government for minorities and women. Similarly, in 1995 the Board of Regents of the University of California system ended affirmative action in California's public universities. This phenomenon, however, has not limited itself to California. The Court of Appeals for the Fifth Circuit, in Hopwood v. Texas, held that the University of Texas School of Law's admissions program, which gave preference to African-Americans and Mexican- Americans, …

The Enforcement Of Prisoners’ Rights In The United States: An Access To The Courts Issue, Roberta M. Harding

Law Faculty Scholarly Articles

This article examines how the development and status of the rights of incarcerated people is significantly effected by their ability to access the judiciary; specifically the federal judicial system. The relatively recent explosion in the American prison population provided the impetus for researching this topic. The objective was to examine whether this tremendous rise in the number of people incarcerated in U.S. penal facilities had impacted the posture of the rights afforded to these individuals. One conclusion reached was that the rise in the prison population had harshly eroded the right of access to the courts. The exploration of the …

Race And The Court In The Progressive Era, Michael J. Klarman

Vanderbilt Law Review

In the second decade of the twentieth century, the Supreme Court decided four prominent (groups of) cases involving race. On each occasion, the civil rights claim won in some significant sense. One set of cases involved so-called peonage legislation-laws that coerced (primarily) black labor. In Bailey v. Alabama, the Court invalidated under the federal Peonage Act of 18672 and the Thirteenth Amendment an Alabama law making it a crime to enter, with fraudulent intent, into a labor contract that provided for advance payment of wages; the law made breach of the contract prima facie evidence of fraudulent intent, and Alabama …

Why Judicial Reversal Of Apartheid Made A Difference, William A. Fischel

Vanderbilt Law Review

Did Buchanan v. Warley' have any practical effect on the economic well-being of black Americans? Michael Klarman argues that it did not, since the enforcement of racial segregation proceeded along other lines, such as regular zoning, racial covenants, informal discrimination, and unofficial violence. David Bernstein disagrees in part with Kiarman's conclusion. He argues that Buchanan v. Warley effectively made more housing available to blacks in urban areas, even if it did not promote racial integration.

I second Bernstein's conclusion by putting Buchanan in the context of the urban-economics theory of housing segregation. Because Buchanan helped blacks gain a foothold, albeit …

Ax-Grinding Politics Leads To Unequal Justice, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Writing Rules Does Not Right Wrongs, Odeana R. Neal

All Faculty Scholarship

I believe the work that lawyers, legal academics, and judges do is important. Our work allows us to devise legal theories, develop litigation strategies and determine outcomes that can make a tremendous difference in people's lives. As a result, I applaud the insight and creativity of Judge Beck and Professors Glennon and Goldfarb. Their work demonstrates how law can be used to protect gay men, lesbians, bisexuals, their relationships and their families.

Local Government Anti-Discrimination Laws: Do They Make A Difference?, Chad A. Readler

University of Michigan Journal of Law Reform

During the past decade, local governments have expanded their role protecting individuals from discrimination in private employment. Although federal and state laws already protect individuals from employment discrimination based on race, sex, color, religion, national origin, age, and disability, local anti-discrimination ordinances protect an even wider range of characteristics such as sexual orientation, marital status, military status, and income level. The author details the results of a survey indicating that the agencies and dispute resolution processes mandated by local anti-discrimination ordinances are seldom used to protect this wider range of characteristics He argues that effective, uniform anti-discrimination protection should come …

Against Common Sense: Why Title Vii Should. Protect Speakers Of Black English, Jill Gaulding

University of Michigan Journal of Law Reform

The speech of many black Americans is marked by phrases such as 'we be writin"' or "we don't have no problems." Because most listeners consider such "Black English" speech patterns incorrect, these speakers face significant disadvantages in the job market. But common sense suggests that there is nothing discriminatory about employers' negative reactions to Black English because it makes sense to allow employers to insist that employees use correct grammar.

This article argues against this common sense understanding of Black English as bad grammar. The author first analyzes the extent of the job market disadvantages faced by Black English speakers …

Same-Sex Sexual Harassment Claims After Oncale: Defining The Boundaries Of Actionable Conduct , Richard F. Storrow

American University Law Review

No abstract provided.

Sex Discrimination And Insurance For Contraception, Sylvia A. Law

Washington Law Review

Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways federal and state officials might remedy this common form of gender discrimination.

The Future Of Federal Disadvantaged Business Enterprise Programs:Did The Supreme Court's Decision Iin Adarand Constructors V. Pena Really Make A Difference?, Jennifer L. Haynes

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Environmental Racism And Hazardous Facility Siting Decisions: Noble Cause Or Political Tool?, Christopher Billias

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Hooting: Public And Popular Discourse About Sex Discrimination, Kenneth L. Schneyer

University of Michigan Journal of Law Reform

In this Article, Professor Schneyer focuses on the debate surrounding the Hooters restaurant chain. He argues that the debate surrounding Hooters inevitably addresses the nature and importance of gender and sexuality in culture and business. Professor Schneyer uses the lens of constitutive rhetoric to analyze several texts created by both sides during this debate. He concludes that varying participants in the debate use rhetoric for different purposes. Some, like commentator Laura Archer Pulfer, use rhetoric that encourages growth and critical analysis, while others, like Hooters itself, use rhetoric to encourage unquestioning belief Overall, Professor Schneyer observes that Hooters's supporters use …

Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci

Osgoode Hall Law Journal

This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …

Accommodating Outness: Hurley, Free Speech, And Gay And Lesbian Equality, Darren Lenard Hutchinson

UF Law Faculty Publications

In this article I explore two important questions raised by the Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston decision. First, although the Supreme Court did not analyze the case under the Roberts framework, it suggested at the conclusion of the opinion that the case would have the same outcome under that test. The Court's dictum concerning the Roberts trilogy thus raises the question whether Hurley indicates that the Court might disturb the Roberts doctrine if presented with the opportunity. Second, the Hurley Court, in rejecting GLIB's claim, found that the parade organizers were not attempting to exclude …

No Dichotomies: Reflections On Equality Forafrican Canadians In R. V. R.D.S., April Burey

Dalhousie Law Journal

The contrasts, in form and substance, were stark. In form, I was a black woman in a wheelchair, pleading before an all-white, able-bodied and almost all-male Supreme Court of Canada. The usually empty public galleries in the Ottawa courtroom were filled with people of colour, who had come from across the country to witness the hearing of this landmark case. On their entrance, the nine white judges, dressed in their staid, black robes made an almost audible gasp as they were met with this colourfully clad, intently silent band of people of colour.

What's The Difference? Interpretation, Identity And R. V. R.D.S., Allan Hutchinson, Kathleen Strachan

Dalhousie Law Journal

Lawyers hanker after authority. Whether it be in enforcing the law or justifying law's institutional power, there is an almost desperate yearning to establish and maintain the legitimacy of law and, therefore, of themselves, in a social world in which the whole notion of authority is challenged and undermined. When it comes to matters of legal interpretation, jurists and judges still crave some method that will ground or trace back an interpretation to a foundational or ultimate source that can confer authority on one particular interpretation over another. However, recent jurisprudential debate has done fatal damage to the notion that …

Bad Attitude/S On Trial, Carl Stychin

Dalhousie Law Journal

Bad Attitude/s on Trial presents a "critical analysis of pornography in the context of contemporary Canada,"' with a particular focus on the impact of the Supreme Court of Canada's decision in R. v. Butler,2 and its reformulation of the basis of obscenity law. The book is co-written by four Canadian academics: Brenda Cossman, Shannon Bell, Lise Gotell, and Becki L. Ross. Each has contributed a separate section of the book, along with an introduction by Cossman and Bell. The result is a vital, theoretically sophisticated addition to the literature on pornography; a vivid documentation of the impact of obscenity law …

Twain's Admiration Of Jews Conflicted His Article Of 100 Years Ago Seems Less Flattering Today, Kenneth Lasson

All Faculty Scholarship

It's been exactly a hundred years since Mark Twain first revealed himself as an unmitigated admirer of Jewish people. "A marvelous race, by long odds the most marvelous that the world has produced, I suppose." he wrote in "Concerning the Jews," published in March of 1898 by Harper's magazine.

How different after all was Twain from H.L. Mencken, who (after the posthumous publication of his diaries) was attacked as an anti-Semite? As literary critic Joseph Epstein has pointed out, Mencken talked about Jews the way they talked about themselves: "But H.L. Mencken was no anti-Semite. For that he would have …

Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson

All Faculty Scholarship

Three hundred sixty-four years ago this month, two tiny sailing ships arrived near what is now St. Mary's City with the first settlers in Maryland. The Ark and the Dove were sent to the New World by Cecil Calvert. Lord Baltimore had founded his small colony as a haven for those persecuted in England because of their religious beliefs.

On numerous occasions since then - from passage of the Act of Toleration in 1649 to the achievement of full civil liberties for Jews in 1825 to landmark Supreme Court decisions involving the state in the 1960s - Maryland has been …

A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel

Cornell Law Faculty Publications

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that …

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …