The First Amendment And The Claim That Muslim Emigrants Be Denied Entrance Into The United States, Vincent Samar
Dec 2015
The First Amendment And The Claim That Muslim Emigrants Be Denied Entrance Into The United States, Vincent Samar
Vincent Samar
Terrorist attacks throughout the world and particularly within the United States have given rise to a new chapter in the ongoing debate over liberty versus security. The most recent manifestation of this dispute focuses on whether Muslim refugees can be denied entry as a class into the United States, based on their religion alone, for fear they might be harboring potential terrorists. This Essay shows that such a policy cannot be justified under the First Amendment Establishment Clause, as well the United States’ expressed international commitments to preserving international human rights. What can be done is to engage a broader set of investigative …
Toward A New Separation Of Church And State: Implications For Analogies To Last Year’S Supreme Court Decision In Hobby Lobby By This Year’S Decision In Obergefell V. Hodges, Vincent Samar
Dec 2015
Toward A New Separation Of Church And State: Implications For Analogies To Last Year’S Supreme Court Decision In Hobby Lobby By This Year’S Decision In Obergefell V. Hodges, Vincent Samar
Vincent Samar
Toward a New Separation of Church and State: Implications for Analogies to Last Year’s Supreme Court Decision in Hobby Lobby by this Year’s Decision in Obergefell v. Hodges
Structural Subjugation: Theorizing Racialized Sexual Harassment In Housing, Kate Elengold
Dec 2015
Structural Subjugation: Theorizing Racialized Sexual Harassment In Housing, Kate Elengold
Kate Elengold
ABSTRACT: This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” …
Protecting The Compromised Worker: : A Challenge For Employment Discrimination Law, Peter Siegelman
Dec 2015
Protecting The Compromised Worker: : A Challenge For Employment Discrimination Law, Peter Siegelman
Peter Siegelman
Why do employment discrimination plaintiffs fare so poorly? Many explanations have been offered, but this essay suggests a new one: a substantial fraction of all plaintiffs are “compromised” workers, meaning that they have done something on the job that might plausibly justify the treatment about which they are complaining. As a matter of both doctrine and logic, compromised plaintiffs can be legitimate victims of discrimination. But they face substantial difficulties in proving that their employer relied on a prohibited characteristic in its treatment of them because, by definition, their behavior offers a plausibly legitimate explanation for their treatment. After demonstrating …
Measuring Political Power: Suspect Class Determinations And The Poor, Bertrall L. Ross, Su Li
Dec 2015
Measuring Political Power: Suspect Class Determinations And The Poor, Bertrall L. Ross, Su Li
Bertrall L Ross
Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens, or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible—and under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power.
But how do courts know when a class lacks political power? A liberal plurality of the Supreme Court initially suggested that political power should be measured according to a group’s …
Intersectionality Problems With Gendered Disability Discrimination, Thomas E. Simmons
Dec 2015
Intersectionality Problems With Gendered Disability Discrimination, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins
Dec 2015
Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins
Mel Cousins
The issue of surrogacy in Irish law has received considerable (if somewhat belated) attention. The Supreme Court has overturned the decision of the High Court to recognise a surrogate mother as the child’s mother for the purposes of birth certification. The European Court of Justice has also considered and rejected a complaint in which it has been argued that the failure to provide leave to a surrogate mother was in breach of EU and international law. A claim has also been brought under the Equal Status Acts (ESA) arguing that the failure of the Department of Social Protection (DSP) to …
Can Dna Be Speech?, Jorge R. Roig
Dec 2015
Can Dna Be Speech?, Jorge R. Roig
Jorge R Roig
DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.
In this article we discuss myriad current and developing ways in which …
Comparative Perspectives On Strategic Remedial Delays, Holning Lau
Dec 2015
Comparative Perspectives On Strategic Remedial Delays, Holning Lau
Holning Lau
In controversial constitutional cases, courts sometimes grant the government an extended period of time to correct rights violations — what I call “remedial grace periods” — hoping that the postponed implementation of change will temper backlash. The most well-known example of such remedial delay followed the United States Supreme Court decision in Brown v. Board of Education II. This Article spotlights a more recent remedial grace period. In Minister of Home Affairs v. Fourie, South Africa’s highest court ruled that depriving same-sex couples of marriage was unconstitutional. It could have implemented same-sex marriage immediately by reading it into law, but …
"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless
Dec 2015
"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless
Rebecca Sharpless
Scholars and law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework that relies on a contrast with people—citizens and noncitizens—who have been convicted of a criminal offense and proposes an alternate approach that better aligns with the racial critique of our criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many …
Shaping Expectations About Dads As Caregivers: Toward An Ecological Approach, Holning Lau
Dec 2015
Shaping Expectations About Dads As Caregivers: Toward An Ecological Approach, Holning Lau
Holning Lau
A growing number of men embrace childcare responsibilities traditionally associated with women. Yet fathers who wish to be caregivers often face impediments. Legal scholars have focused attention on one of these impediments, the lack of workplace paternity leave, by calling on the government to mandate leave for new fathers. In this Essay, I argue that the focus on workplace policies is much too narrow. In light of cultural norms in the United States, there will be difficulty passing national legislation mandating paternity leave. Moreover, men shoulder cultural pressure not to take paternity leave even when it is offered. This Essay …
Angry Employees, Susan D. Carle
Dec 2015
Angry Employees, Susan D. Carle
Susan D. Carle
INTRODUCTION: To read federal case law decided under Title VII of the Civil Rights Act of 19641-the provision that prohibits employment discrimination on the basis of race, sex, and other characteristics-is to be struck by the continuing racial and sexual hostility in U.S. workplaces today, and also at courts' too frequent unwillingness to address it. Courts throw out plaintiffs' cases even where the facts involve such egregious employer behavior as, in the race context, supervisors repeatedly calling employees the n-word and using other racial epithets, ordering African American employees to perform work others in the same job classification do not …
