Law Commons^™

From Justice To Injustice: Lowering The Threshold Of European Consensus In Oliari And Others Versus Italy, Nazim Ziyadov

Indiana Journal of Global Legal Studies

Oliari and Others v. Italy, decided by the European Court of Human Rights (ECHR) in 2015, changed its case law. The ECHR changed its position stated in Schalk and Kopf v. Austria (2010) when evaluating an alleged violation of Article 8 of the European Convention on Human Rights. It concluded that Italy has a positive obligation under the convention to guarantee alternative legal recognition for same-sex couples. The same conclusion was not reached in Schalk. In Oliari and Others, the ECHR heavily relied on the European consensus doctrine and eventually deepened formalization of two different institutions (marriage and civil unions). …

For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig

Angela Onwuachi-Willig

Fifty years after the landmark decision Brown v. Board of Education, black comedian and philanthropist Dr. Bill Cosby astonished guests at a gala in Washington, D.C., when he stated, "'Brown versus the Board of Education is no longer the white person's problem. (Black people] have got to take the neighborhood back . . . . (Lower economic Blacks] are standing on the comer and they can't speak English.'" Cosby, one of the wealthiest men in the United States, complained about "lower economic" Blacks "not holding up their end in this deal." He then asked the question, "'Well, Brown versus Board …

A New Peonage?: Pay, Work, Or Go To Jail In Contemporary Child Support Enforcement And Beyond, Noah D. Zatz

Seattle University Law Review

Child support enforcement is one of several contemporary contexts in which the state threatens to incarcerate people if they fail to work. This symposium essay explores whether this practice violates the Thirteenth Amendment’s ban on involuntary servitude. At first glance, such threats fall squarely within the ambit of the early 20th century peonage cases. There, the Supreme Court struck down criminal enforcement of legal obligations to work off a debt. Several modern courts have declined to reach a similar conclusion when child support enforcement puts obligors to a choice between paying, working, and going to jail. To do so, these …

Beginning With Brown: Springboard For Gender Equality And Social Change, M. Margaret Mckeown

San Diego Law Review

To paraphrase Winston Churchill, the Supreme Court’s opinion in Brown v. Board of the Education was not the end of litigation over discriminatory practices, nor was it the beginning of the end. It was, however, the end of the beginning. Brown marked a dramatic capstone to a series of lawsuits challenging the concept of “separate but equal” embodied in Plessy v. Ferguson. But it also signaled a new phase of civil rights litigation: advocates emboldened by Brown’s resounding endorsement of equality sought new constitutional protections against discrimination. Among them were women seeking to extend Brown’s logic towards a constitutional mandate …

Juridical Subordination, Roy L. Brooks, Kelly C. Smith

San Diego Law Review

The purpose of this Article is to play out the various conceptualizations of the black equality interest in post-civil rights America. How is the claim of juridical subordination manifested in current Supreme Court cases, and what might civil rights law look like if the Court were to avoid juridical subordination? Our ambition is not to analyze every landmark Supreme Court civil rights case—page limitations prevent us from doing that—but to provide a framework for analysis, setting the table for the juridical subordination inquiry. Furthermore, we do not here attempt to reconcile the disparate ways in which the black equality norm …

The Past As Prologue: Shelby County V. Holder And The Risks Ahead, J. Corey Harris

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Effects Of Intent: Do We Know How Legal Standards Work?, Theodore Eisenberg, Sheri Lynn Johnson

Sheri Lynn Johnson

No one knows how the intent standard works in racial discrimination cases, though many have speculated. To test the speculation, this study examines how the intent standard actually operates. Its findings cast doubt on whether we really know how any legal standard functions.

Protecting The Dignity And Equality Of Children: The Importance Of Integrated Schools, Sharon E. Rush

Sharon E. Rush

The primary goal of this Article is to motivate equality-minded people to renew their commitment to the goal of invalidating the race myth – a belief in white superiority and black inferiority – that has plagued this country far too long. When the Supreme Court ruled in Brown that “separate is inherently unequal,” it understood that integrated schools were necessary to achieve racial equality because only by teaching children to respect each other’s dignity, is it possible to debunk the race myth. This Article suggests that “integration” is about more than ensuring that children have the opportunity to physically share …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott

Book Chapters

This chapter is not an attempt to join the fractious debate over philosophical first principles or juridical first usages of the term 'dignity'. Instead, it explores the tight connection between the institution of slavery and the giving of specific meanings to the concept of dignity, in particular times and particular places. To explore the dynamics of the intertwined process of creating and drawing upon meaning for the terms 'dignity' and 'slavery', I examine two historical movements that emerged after formal abolition.

A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald

Pepperdine Law Review

A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.

Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar

Pepperdine Law Review

The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.

Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.

Maryland Lawyers Who Helped Shape The Constitution: Father Of Freedom - Charles Hamilton Houston, José F. Anderson

All Faculty Scholarship

For most Americans, Charles Hamilton Houston is barely a footnote in history. Born in 1896, this Phi Beta Kappa graduate of Amherst College and Harvard educated African-American lawyer went on to win eight of nine cases in the United States Supreme Court. He designed the legal strategy for the historic Brown v. Board of Education 347 U.S. 483 (1954). He was the first African American to be elected to the Harvard Law Review and the first to earn the degree Doctor of Juridical Science Degree

By 1950 he would be laid to rest, exhausted by his brutal multi-state law reform …

"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell

Michigan Journal of Race and Law

This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …

Protecting The Dignity And Equality Of Children: The Importance Of Integrated Schools, Sharon E. Rush

UF Law Faculty Publications

The primary goal of this Article is to motivate equality-minded people to renew their commitment to the goal of invalidating the race myth – a belief in white superiority and black inferiority – that has plagued this country far too long. When the Supreme Court ruled in Brown that “separate is inherently unequal,” it understood that integrated schools were necessary to achieve racial equality because only by teaching children to respect each other’s dignity, is it possible to debunk the race myth. This Article suggests that “integration” is about more than ensuring that children have the opportunity to physically share …

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

Articles

This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig

Michigan Law Review

Fifty years after the landmark decision Brown v. Board of Education, black comedian and philanthropist Dr. Bill Cosby astonished guests at a gala in Washington, D.C., when he stated, "'Brown versus the Board of Education is no longer the white person's problem. (Black people] have got to take the neighborhood back . . . . (Lower economic Blacks] are standing on the comer and they can't speak English.'" Cosby, one of the wealthiest men in the United States, complained about "lower economic" Blacks "not holding up their end in this deal." He then asked the question, "'Well, Brown …

Why Segregation Is Inherently Unequal: The Abandonment Of Brown And The Continuing Failure Of Plessy, Gary Orfield

NYLS Law Review

No abstract provided.

Does The Supreme Court Matter? Civil Rights And The Inherent Politicization Of Constitutional Law, Matthew D. Lassiter

Michigan Law Review

More than a decade ago, in a colloquium sponsored by the Virginia Law Review, scholars of the civil rights movement launched a fierce assault on Michael J. Klarman's interpretation of the significance of the Supreme Court's famous school desegregation ruling in Brown v. Board of Education. Klarman's "backlash thesis," initially set forth in a series of law review and history journal articles and now serving as the centerpiece of his new book, revolves around two central claims. First, he argues that the advancements toward racial equality generally attributed to Brown were instead the inevitable products of long-term political, …

Brown Did Not Fail America, America Failed Brown, Patricia A. Broussard

Journal Publications

It is my belief that the failure of Brown v. Board of Education and the continuing problem of race in America stems from the fact that America never took ownership of the promise of Brown, and instead, viewed the decision purely in terms of desegregation, as opposed to integration. Consequently, integration has remained a concept instead of an action item. Implicit in this notion of desegregation is the idea that the races sit next to one another, while the concept of integration carries with it a much heavier burden. It appears that the races have never made a personal …

Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott

Articles

Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White

Michigan Law Review

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …

Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw

Faculty Scholarship

Good morning colleagues, friends, and special guests of the Symposium. I have the unenviable task of welcoming you to the UCLA School of Law this morning, a task that under current circumstances carries with it for me quite a few mixed emotions.' I have struggled mightily over how I might convey to you that although my heart is heavy this morning, I am very pleased to see each of you. It is rather like opening the door to welcome close friends into your home which is in a state of utter disarray. Things are strewn all about, you look harried …

Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon

Michigan Law Review

Many who oppose affirmative action programs in the United States because they use "racial" categories such as black, African American, or Latino, claim that equally effective and more equitable programs can be developed using only class categories, such as "low income." A key test case for the "race v. class" debate is admission to law schools, made urgent by recent legal prohibitions on the use of "race" in the admission procedures to state universities in California, Washington, and Texas. An empirical study by Linda Wightman, the former director of research for the Law School Admissions Council (LSAC), has shown that …

Students' Rights And How They Are Wronged, Nadine Strossen

University of Richmond Law Review

Defending and enhancing the rights of students and young people has always been a major priority for the American Civil Liberties Union. One reason is that the rights of our nation's youth are always especially embattled - not surprisingly, since they are not yet eligible to vote and, therefore, lack political power.

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause …