Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as …

From Desegregation To Overrepresentation: The Unlawful And Damaging Effects Of Nationally Normed Assessments And Missidentification Of Black Students As Disabled, Ashley Heard

Ashley Heard

Segregation in schools today creates a two-tier system wherein minority students often receive a substandard education. Moreover, they are often tested for cognitive deficits and identified for special education services using a nationally normed assessment. The practice of assessing students from substandard schools on a nationally-normed assessment leads to the misidentification and overrepresentation of minority students identified as disabled and provided special education services.

In this article, I argue that rather than utilizing a nationally normed assessment for the purposes of special education identification, school districts should create a normed scale based on district-specific assessment data. Norming at the district …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

The Emergence Of Private Property Law In China And Its Impact On Human Rights, Mark D. Kielsgard, Lei Chen

Mark D. Kielsgard

ABSTRACT This article investigates the development of private property law in the PRC and its connection to the growth of human rights trends in China. It assesses the vitality of these trends, reviews the relevant historic legal and social background and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis, and evaluating them from the perspective of both Chinese and Western scholarship, it analyzes trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the human rights practices they have …

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Trouble At Home, Daniel Manne

Daniel Manne

In her Jacob Prize 2009 award-winning book, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy, Harvard Law School Professor Jeannie Suk mounts a sustained argument to the effect that under the guise of protecting women, coercive state power has weaseled its way into the hitherto sacred area of the home. Unfortunately, Professor Suk makes a number of errors in her book, including misreporting cases, misrepresenting statutes, and misunderstanding the law. Because so little is written in the area of domestic violence, it is critical to correct these errors before they have an effect on policy. …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

The Glass Mirror: Appearance-Based Discrimination In The Workplace, Enbar Toledano

Enbar Toledano

The benefits of physical attractiveness are considerable and widespread. As early as infancy and throughout their lifetimes, physically attractive individuals are afforded more favorable treatment, are assumed to possess more socially desirable traits, and enjoy better opportunities in virtually every aspect of life. Perhaps most troubling are the professional advantages enjoyed by attractive job candidates and employees. Statistically, these individuals will receive more job offers, better advancement opportunities, and higher salaries than their less attractive peers—despite numerous findings that they are no more intelligent or capable. Given the proven and arguably undeserved disparities in professional treatment between the unattractive and …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

Perverted Liberty: How The Supreme Court’S Limitation Of The Commerce Power Undermines Our Civil-Rights Laws And Makes Us Less Free, Chad Deveaux

Chad DeVeaux

I argue that the Supreme Court’s limitation of Congress’s commerce power in National Federation of Independent Business v. Sebelius undermines the edifice of federal civil-rights laws. NFIB narrowly upheld the Affordable Care Act’s individual mandate as a valid exercise of Congress’s tax power. But the Chief Justice and four dissenting Justices concluded that the mandate exceeds Congress’s commerce power. In their view, the Commerce Clause empowers the regulation of “existing commercial activity,” but does not permit Congress to “create commerce” by compelling one to engage in unwanted transactions. Because the individual mandate conscripts people to engage in involuntary transactions these …

Democracy On The High Wire: Citizen Commission Implementation Of The Voting Rights Act, Justin Levitt

Justin Levitt

The Voting Rights Act, often praised as the most successful civil rights statute, is among the most fact-intensive of election regulations. California, the country’s most populous and most diverse state, is among the most challenging terrain for applying the Act. California is also the largest jurisdiction at the vanguard of a burgeoning experiment in indirect direct democracy: allowing lay citizens, not incumbent officials, to regulate the infrastructure of representation.

In 2011, fourteen California citizens strode into the briar patch where citizen institutions intersect the Voting Rights Act. These fourteen comprised the state’s brand-new Citizens Redistricting Commission: an official body of …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

The Real Lethal Punishment: The Inadequacy Of Prison Healthcare And How It Can Be Fixed, G. Nicholas Wallace

G. Nicholas Wallace

There are over 2 million prisoners in the United States and all of them have a fundamental right to healthcare, which, currently, is the only population group to enjoy such a right. This paper focuses on the quality of healthcare that is to be provided to prisoners and some of the reasons why the healthcare that is currently being provided is inadequate. Part II looks at the issue through an ethical lens. It summarizes Kantian ethics and how that theory shapes this issue. Part III will focus on exactly what quality of healthcare prisoners are entitled to and what their …

Constitutional Discourse In The Dyer Anti-Lynching Bill Debate, Alexander F. A. Rabanal

Alexander F. A. Rabanal

No abstract provided.

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

The Role Of The Hunter/Seattle Doctrine In Adjudicating Measures Against Affirmative Action, Gautam Y. Reddy

Gautam Y Reddy

In 1997, the Ninth Circuit upheld the constitutionality of Proposition 209, a ballot initiative that the citizens of California passed to ban affirmative action programs in the state. However, over a decade later in 2011, the Sixth Circuit reached the opposite conclusion regarding Proposal 2, a nearly identical ballot initiative passed by the voters of Michigan. At the core of this circuit split is the applicability of a rarely invoked Equal Protection test: the Hunter/Seattle Doctrine.

Controversy stems from the incongruity of this doctrine with the Rehnquist Court’s move towards a less deferential stance regarding affirmative action in key Equal …

No Justice, Just Peas: Why Wal-Mart Will Not End D.C.’S Food Deserts, Emily R. Citkowski

Emily R. Citkowski

Without a significant policy shift away from corporate subsidies and towards local capital development, local entrepreneurs may need to abandon traditional for-profit business models in favor of alternative non-profit models that build upon existing community assets. Legislation meant to solve the problem of food deserts should prioritize community-based enterprise because of the capacity to localize capital, create living-wage jobs, and build accountability to community.

Moral Disengagement Of Medical Providers: Another Clue To The Continued Neglect Of Treatable Pain, Kelly Dineen

Kelly Dineen

The neglect of treatable pain is an ongoing reality for patients in all health care settings despite decades of research, education, institutional and organizational initiatives and regulatory reform. Most recently the Accountable Care Act and the Institute of Medicine have called for further work to understand and correct the continued inadequate treatment of pain. To date, research has identified a variety of barriers to treatment from educational deficits to biases to regulatory scrutiny with little change in practice. Yet, very little research has addressed the social cognitive mechanisms used by providers who continue to undertreat pain. This article explores the …

Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson

Eric Alan Isaacson

Some have contended that same-sex couples' marriages pose a grave danger to the religious liberty of social conservatives whose faith traditions do not bless same-sex unions. Those who oppose recognizing same-sex couples' right to marry have even contended that their clergy and churches might be subject to hate-crime prosecutions and loss of tax-exempt status if same-sex couples may lawfully marriage. This article seeks to answer those objections, pointing out that many limitations on religious marriages -- such as Roman Catholic doctrine barring remarriage by those who are civilly divorced -- parallel religious rules similarly limiting or withholding recognition from same-sex …

Battleground In The Classroom - Disabled Students And Section 1983 Claims, J. Richard Caldwell Jr., Darryl Lee Gavin, Lauren Fackender Carmody

J. Richard Caldwell Jr.

Battleground in the Classroom – Disabled Students and Section 1983 Claims Synopsis Over the last 30 years, there has been a surge of lawsuits filed against teachers and school personnel alleging violations of students' rights under 42 U.S.C. section 1983. While courts have cautioned that section 1983 is not a substitute for state tort law, cases have arisen in a variety of school contexts. Among these have been several cases involving students under disabilities of one kind or another. In general, most courts hold that to be actionable under section 1983, the alleged conduct must "shock the conscience" of the …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …