Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois

Goutam U Jois

Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.

A Comprehensive Analysis Of The National Security Agency’S Wiretapping Program And Its Correlation With The Foreign Intelligence Surveillance Act, Michael Fraggetta

Michael Fraggetta

ABSTRACT This paper is an analysis of the unitary executive theory as ascribed to by the Bush/Cheney administration. The central focus of the paper analyzes the NSA wiretapping program, which was made public in 2005 and the correlation and support found for the program in the unitary executive theory. The paper proceeds with a brief history of the warrantless surveillance in the United States and the evolution of electronic surveillance jurisprudence culminating with the passage of the Foreign Intelligence Surveillance Act in 1978. The paper then explores the NSA program and analyzes, in depth, the legal arguments set forth by …

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

Ian Ayres

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter …

Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer

Howard Schweber

In this article, we visit the question of whether Australia has a “genuine” constitution with respect to guarantees of individual rights. The Australian constitutional text lacks explicit rights guarantees, but various types of rights protections have been derived from the text through judicial construction. To test the Australian model, we compare three other cases -- the United States, the U.K., and Israel -- with respect to the relationship between text, convention, and constitutional ethos. Australia does not fit cleanly into any of these three models, although it displays elements of each. More importantly, the High Court’s extrapolation of rights from …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves

Lee Reeves

Many scholars have argued that the judiciary’s decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit’s employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. …

Ruling Out The Rule Of Law, Kim Forde-Mazrui

Kim Forde-Mazrui

Although criminal justice scholars continue to debate the overall value of the void-for-vagueness doctrine, broad consensus prevails that requiring crimes to be defined in specific terms reduces law enforcement discretion. A few scholars have questioned this assumption, but the conventional view remains dominant. This Article intends to resolve the question whether the void-for-vagueness doctrine really reduces police discretion. It focuses on traffic enforcement, a context in which laws are both specific and subject to discretionary enforcement. The Article concludes that specific rules do not constrain discretion unless judicial limits are placed either on the scope of activities that may be …

Legal Archaeology And Feminist Legal Theory: A Case Study Of Gender And Domestic Violence, Debora L. Threedy

Debora L. Threedy

This article examines the case of State v. Jensen, in which a man was convicted for violating a protective order, only to have the conviction overturned by the appellate court on the ground that the female prosecutor, by using her three peremptory challenges to exclude three males from the jury, violated the constitutional guarantee of equal protection. Using the case as a jumping off point, the article goes on to consider how gender affects the legal system’s ability to deal with domestic violence. This paper is located at the intersection of the methodology of legal archaeology and feminist legal theory. …

Toward Real Workplace Equality: Nonsubordination And Title Vii Sex-Stereotyping Jurisprudence , Erin E. Goodsell

Erin E. Goodsell

This paper seeks to resolve a problem in federal anti-discrimination jurisprudence. The Supreme Court has held that plaintiffs may have a Title VII employment discrimination claim where they have been discriminated against based on an “impermissible sex stereotype,” but the lower federal courts, lacking a clear definition of what an “impermissible sex stereotype” may be, are inconsistent in their application of the sex-stereotyping doctrine. I argue that applying the feminist principle of nonsubordination, which examines whether legal rules or cultural practices serve to subordinate women to men and seeks to change those rules or practices that do, could help to …

Base Wretches And Black Wenches: A Story Of Sex And Race, Violence And Compassion, During Slavery Times, Jason A. Gillmer

Jason A Gillmer

This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity …

Commentary: Justice Carter's Dissent In Hughes V. Superior Court Of Contra Costa County: Harbingers Of The 60'S Civil Rights Movement And Affirmative Action?, Frederic P. White

Frederic P. White Jr.

Commentary Abstract: Justice Jesse Carter, known as "The Great Dissenter" on the California Supreme Court for 20 years, wrote a dissent in opposition to allowing black workers to picket for employment in Richmond, California in the 1940's. The commentary explores how some of the language used in Justice Carter's dissent eventually adapted to the rhetoric used in the 1960's Civil Rights Movement and as in the continuing Affirmative Action debate.

Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske

Timothy J Droske

Native American criminal defendants are subject to disproportionately harsher sentences than similarly situated non-Indian defendants. This is due to the federal government’s exclusive criminal jurisdiction over Native Americans in Indian country for major crimes and the fact that federal sentences tend to be more severe than their state counterparts. Judges and commentators have proposed various means by which to reduce this disparity, but so far, all these proposals have either lacked the political capital to be enacted, or been frustrated by the rigidity of the Federal Sentencing Guidelines. The Supreme Court’s 2005 decision in United States v. Booker however, rendered …

A Philosophy Of Privitization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor B. Sorresso

Eleanor B Sorresso

Over the past two decades, managed care coverage programs have grown to dominate the private health insurance market. With the Balanced Budget Act of 1997 and the Medicare Modernization Act of 2003, managed care programs are now expanding to envelop our nation’s Medicare program as well. Proponents have based this expansion primarily on the premise that market economics provides a more efficient paradigm under which to regulate available health care resources. However, this premise of market efficiency proves problematic in the health care arena because it disregards issues of societal responsibility and the risk of socioeconomic stratification in the allocation …

Advancing Civil Rights, The Next Generation: The Genetic Information Nondiscrimination Act Of 2007 And Beyond, Morse Tan

Morse Tan Esq.

On the leading edge of civil rights law and bioethics/healthcare law, this Article analyzes the Genetic Information Nondiscrimination Act (GINA) of 2007, which would extend important protection against discrimination in health insurance and employment. GINA would also bolster genetic research by freeing research subjects from the threat of genetic discrimination. This Article demonstrates how GINA would further protect this society against the rising dangers of genetic discrimination beyond already existing federal and state law.

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

When The Immovable Object Meets The Unstoppable Force: Search And Seizure In The Age Of Terrorism, Anthony C. Coveny

Anthony C Coveny Ph.D.,J.D.,MA.

Abstract In 2001, the airborne attack on the World Trade Center, unlike any other in U.S. History, shook America to her core. In the process, the hand of government was strengthened at the expense of the constitutional liberties afforded by the Fourth Amendment. MacWade v. Kelly is just one more example of the increasing governmental interest in securing this nation from another terrorist attack, and in so doing, subjecting Americans to more “big brother” government. In MacWade, the New York Police Department faced down a 42 U.S.C 1983 challenge to its Container Inspection Program (CIP) in the name of security. …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Post-Trauma: Cambodian Refugees And Social Security's Disability Fraud Investigations, Theodore A.B. Mccombs

Theodore A.B. McCombs

Since 2003, the Oakland unit of Social Security’s Cooperative Disability Investigations (“CDI”) program has targeted certain Cambodian refugee applicants with Post-Traumatic Stress Disorder and Depression for fraud investigations. The practices of Social Security’s anti-fraud program in Oakland reveal disturbing disadvantages to Cambodian refugee applicants in particular, including institutional prejudices in Social Security’s rules and CDI agents’ gross insensitivity to claimants’ impairments and cultural realities. This Note examines these disadvantages under the legal norms of national origin discrimination, disability discrimination, and due process, and concludes with a policy proposal on how Social Security might better protect claimants’ rights and interests while …

Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser

Mark Strasser

Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …

Preaching, Fundraising And The Constitution: On Proselytizing And The First Amendment , Mark Strasser

Mark Strasser

In a series of cases, the Court has suggested that proselytizing, whether or not including solicitation of donations, is entitled to robust constitutional protection. The Court recently affirmed that view in Watchtower Bible and Tract Society of New York, Incorporated v. Village of Stratton. Yet, the relevant jurisprudence is much less clear than either the Court or commentators seem willing to admit. When one considers the cases involving the International Society for Krishna Consciousness (ISKCON), one sees that the protections for proselytizing, especially when involving solicitation, are much weaker than might first be thought. This Article explores the proselytizing cases, …

The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser

Mark Strasser

Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Basically, some courts suggest that an unwed father will retain his parental rights as long as he does not culpably act or fail to act in a way which deprives him of his rights, while others suggest that an unwed father will acquire parental rights only if he affirmatively avails himself of the opportunity to establish a relationship with his child. The difference between these views can have important implications for the …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

Freeriders And Diversity In The Legal Academy, Ediberto Roman, Christopher Carbot

Ediberto Roman

Diversity is a bedrock principle of the legal academy. American law schools have accordingly adopted the principle by virtue of their membership in the professional accrediting organizations of the American Bar Association(ABA) and the American Association of Law Schools(AALS). This article uses empirical analysis as well as microeconomic theory to demonstrate that despite the above pronouncements, one half of American law schools have failed to fully integrate and are thus not abiding by their commitments to the ABA and AALS.

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Childsoldiers,Slavery, And The Trafficking Of Children, Susan W. Tiefenbrun

Susan W Tiefenbrun

Despite a proliferation of international human rights treaties, labor laws, and humanitarian laws that should provide children with special protection from abduction into child soldiering, the trafficking of children and their use as soldiers is increasing. This paper will examine the relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of child soldiers. Part II will examine the international and domestic laws that protect against the use of children as soldiers. Part III will examine two literary representations of the use of child soldiers and the significant insights such …

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Julie C Suk

Procedural path dependence occurs when the particular features of the procedural system which has been charged with enforcing a given legal norm determine the substantive path of that legal norm. This article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to proving the facts of discrimination, whereas the limited nature of French civil procedure makes it impossible for such information to be revealed. As …

Defending Truth: Legal And Psychological Aspects Of Holocaust Denial, Kenneth Lasson

Kenneth Lasson

Today that form of historical revisionism popularly called “Holocaust denial” abounds worldwide in all its full foul flourish – disseminated not only on Arab streets but in American university newspapers, not only in books, articles, and speeches but in mosques and over the Internet. Can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth? This article attempts to answer those questions. Part I …

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Jessica Fink

In recent years, employees have turned with increasing frequency to the courts to redress alleged violations of their civil rights in the workplace, often bringing suits under laws such as Title VII of the Civil Rights Act of 1964. Indeed, employment discrimination claims consistently consume a substantial (and rising) portion of the federal court docket. In the four-plus decades since the passage of Title VII, however, the nature of workplace bias itself has changed, becoming more difficult to detect in many cases. Some employers, often with the help of counsel, have learned to finesse their workplace actions to avoid the …