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Articles 1 - 5 of 5
Full-Text Articles in Law
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Michigan Law Review
Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …
Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan
Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan
Michigan Law Review
Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …
A Response To Professor Rubenfeld, Jonathan D. Hacker
A Response To Professor Rubenfeld, Jonathan D. Hacker
Michigan Law Review
Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Michigan Law Review
To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …
Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown
Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown
Michigan Law Review
William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal …