Law Commons^™

Shift Happens: The Supreme Court Of The United States’ Shifting Anti-Discrimination Rhetoric, Theresa M. Beiner

Theresa M. Beiner

The United States Supreme Court's discourse on discrimination affects how fundamental civil rights -- such as the right to be free from gender and race discrimination B are adjudicated and conceptualized in this country. Shortly after Congress=s passage of Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer or government conduct. Over time, however, that presumption has dissipated and today, the Court actually presumes non-discrimination absent some evidence that shows an employer or governmental actor was intentionally discriminating. This paper will describe the shift in the …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions …

Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes In Narcotics Distribution Law, Kevin R. Pettrey

Kevin R Pettrey

The Virginia General Assembly has proscribed distributing narcotics within the Commonwealth. In order to further deter this illegal activity, increased punishments for repeat offenders have been established. However, what a charging document must allege changed in 2009 but these technical requirements are not always complied with. Prior to 2009, Virginia Code § 18.2-248 only required that a conviction be a “second or subsequent conviction” in order to qualify a defendant for a heightened sentence. In 2009, the Virginia General Assembly passed HB 2362 which required charging documents to allege that a defendant was convicted of violating Virginia Code § 18.2-248 …

Stopping A Vicious Cycle: The Problems With Credit Checks In Employment And Strategies To Limit Their Use, Sharon Goott Nissim

Sharon Goott Nissim

This paper explores a new and increasingly common phenomenon: the use of credit checks by employers to evaluate potential and current employees. This practice has profound implications in this current weak economy, as those who most need jobs often are the ones turned away due to bad credit. The use of credit checks also has a disproportionate effect on racial minorities as statistically they tend to have worse credit than non-minorities. Employers often assert that credit checks are necessary, despite the lack of hard data proving a link between poor credit and poor job performance.

This paper examines two ways …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

A Final Obstacle: Barriers To Divorce For Immigrant Victims Of Domestic Violence In The United States, Mariela Olivares

Mariela Olivares

Low-income immigrant victims of domestic violence face significant—and understudied—social, legal and political obstacles in obtaining divorces from their abusive spouses. Moreover, funding restrictions on legal service providers often prohibit their representation of victims in divorce proceedings, which further reduces immigrant victims’ ability to obtain meaningful divorce relief. These issues are virtually unexamined in the scholarly literature; the problem of the abused, immigrant wife seeking a divorce has been given short shrift. This Article examines the problems confronting this community then proposes reforms to address its particular needs. Part I explores the unique condition of the immigrant living in the United …

Can The American People, Through Their Legislature, Determine What Remedy Should Be Available For Fourth Amendment Violations?, Kevin R. Pettrey

Kevin R Pettrey

The United States Supreme Court, in Hudson and Herring, has opened the door to possible alternative Fourth Amendment remedies. Due to these recent cases, Congress and the states may have room to maneuver legislatively to create a remedy of another kind. This article proposes a statute to serve as an alternative remedy and supports the statute's constitutionality through a careful analysis of Supreme Court jurisprudence on the Fourth Amendment and related topics.

Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman

Andrea Freeman

Events surrounding Puerto Rico’s 2004 and 2008 gubernatorial elections highlight two of the problems that exemplify the current state of linguistic colonialism that characterizes the relationship between the United States and Puerto Rico. One arose from the requirement that federal jurors be proficient in English, a mandate that conflicts with the Sixth Amendment’s guarantee of a jury representing a fair cross-section of the community. The other stemmed from a lack of anticipation of the existence of an English-speaking minority in a territory ruled by the United States, compelling the district court to struggle for authority to order bilingual ballots for …

Due Process And Counterterrorism, Amos N. Guiora

Amos N. Guiora

In this article, I examine counterterrorism from the perspective of detention, interrogation and trial and in particular how these three are articulated and implemented. The broader question is whether the contemporary counterterrorism paradigm is based in due process or a legal (not necessarily lawful) regime that minimizes individual rights. That is, does civil, democratic society discard core principles in the face of an on-going, viable threat or are political rights and national security rights effectively balanced in order to protect both. Answering this question requires analyzing the interface between threats and rights; in particular, the extent to which society responds …

Prosecuting Starvation At The Extraordinary Chambers In The Courts Of Cambodia, Solomon Bashi

Solomon Bashi

Although numerous governments have manipulated food supplies in an effort to control their constituents and/or target specific populations, there is no legal precedent for trying and convicting leaders for government induced famines. As the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) attempts to administer justice to the victims of the Democratic Kampuchea (“DK”) regime, which held power from 1975-1979, the court should examine the feasibility of prosecuting the DK leaders for the starvation which they caused. While starvation may not have been the most brutal of the DK regime crimes, it was certainly the most prevalent. The following paper …

Teaching In A Democracy: Why The Garcetti Rule Should Apply To Teaching In Public Schools, Paul Forster

Paul Forster

This article examines an important yet unsettled First Amendment issue—whether the rule of Garcetti v. Ceballos should extend to teaching in public schools. In Garcetti, the Supreme Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Yet the Court expressly declined to decide whether this principle should extend to “scholarship or teaching,” leaving lower courts to decide the issue for now. Despite the large number of publicly employed teachers and professors, lower courts have yet …

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

Marriage And Civil Rights: The Anatomy Of A Social Institution From A Constitutional Perspective, Daniel Avila

Daniel Avila

The Iowa Supreme Court’s 2009 decision in Varnum v. Brien, declaring eligibility for marriage licenses to be a state-protected constitutional right for same-sex couples, addresses profound issues of law and policy. The Varnum ruling touches on the meaning of marriage as a social institution, the formation of civil rights in a democracy, and the role of the courts in extending civil rights protection. Several new cases, involving same-sex marriage claims brought under the Federal Constitution, are headed towards the United States Supreme Court. This Article analyzes the Varnum decision and explores the questions it raises in the federal context. The …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines, from a theoretical standpoint, the possibility of expanding the definition of "sexual orientation" in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of "sexual orientation" is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered …

Translation Services Not Required: The Civil Rights Act Of 1964 Does Not Require Special Accommodations For Limited English Proficiency Individuals, Carrie L. Flores

Carrie L. Flores

Is an employer or health care provider required to provide special accommodations to applicants or patients unable to speak English proficiently? If so, to what extent must they accommodate them? Must they provide free translation services? This scenario sets forth a hotly contested issue: whether Limited English Proficiency (LEP) individuals are entitled to receive special accommodations.

The Civil Rights Act (“CRA”) prohibits discrimination based on national origin. However, the CRA does not clearly answer whether an LEP individual is entitled to receive special accommodations because of his LEP status. Notwithstanding this, President Clinton issued an executive order requiring recipients of …

Democracy At The Corner Of First And Fourteenth: Judicial Campaign Spending And Equality, James Sample

James Sample

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding …

A “Supremer” Court?: How An Unfavorable Ruling In The Inter-American Commission On Human Rights Should Impact United States Domestic Violence Jurisprudence, Ethan G. Kate

Ethan G. Kate

After her substantive and procedural due process claims were dismissed in the Supreme Court, Jessica Gonzales took the unprecedented step of filing a claim with the Inter-American Commission of Human Rights, the first time such an allegation of human rights violations had been brought against the United States. Gonzales’ case has implicated two hot-button issues in modern United States jurisprudence: domestic violence prevention and the role of international law in domestic courts. Several scholars have looked at Gonzales’ case as it relates either to domestic violence or international law, but few have looked at the interplay between both issues. Specifically, …

A “Supremer” Court?: How An Unfavorable Ruling In The Inter-American Commission On Human Rights Should Impact United States Domestic Violence Jurisprudence, Ethan G. Kate

Ethan G. Kate

After her substantive and procedural due process claims were dismissed in the Supreme Court, Jessica Gonzales took the unprecedented step of filing a claim with the Inter-American Commission of Human Rights, the first time such an allegation of human rights violations had been brought against the United States. Gonzales’ case has implicated two hot-button issues in modern United States jurisprudence: domestic violence prevention and the role of international law in domestic courts. Several scholars have looked at Gonzales’ case as it relates either to domestic violence or international law, but few have looked at the interplay between both issues. Specifically, …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and …

Teaching Negotiation To A Globally Diverse Audience: Ethics, Morality And Cultural Differences, David Allen Larson, Vanessa Seyman

David Allen Larson

"Teaching Negotiation to a Globally Diverse Audience: Ethics, Morality, and Cultural Differences" (by David Allen Larson and Vanessa Seyman) This is a short article discussing the challenges of teaching negotiation, and also the challenge of actually negotiating, in a globally diverse environment. Issues of ethics, morality and culture can surface quite quickly when teaching and negotiating in a multicultural environment. The article builds upon our recent experiences as participants in the Second Generation Global Negotiation conference held Istanbul, Turkey. The article provides examples of how cultural and language differences can impact both actual negotiations and negotiation teaching and provides suggestions …

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan

Josh Gupta-Kagan

A state child protection agency removes a child from his mother and convinces a family court judge to rule that the child’s mother neglected him and to place the child in foster care. The judge orders the agency to work with the mother to remedy the conditions that led her to neglect him with the plan of reunifying the child with her. One year later the family returns to family court. The social worker files a report asserting that the mother has not cooperated with the agency’s efforts to help her and remains incapable of taking care of the child. …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …