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- Derek W. Black (3)
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Articles 1 - 19 of 19
Full-Text Articles in Law
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
Derek W. Black
This Article analyzes the intersection of state constitutional law right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states’ weakened ability to enforce these rights, the future of education equity depends on federal intervention. with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our …
The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black
The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black
Derek W. Black
This Article highlights the inherent ambiguities of racial antidiscrimination's core legal language: "equal protection under the law" and "discrimination based on race." It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court's standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection's meaning, the standard lacks any basis …
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
Derek W. Black
This Article analyzes the intersection of state constitutional law right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states’ weakened ability to enforce these rights, the future of education equity depends on federal intervention. with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our …
China And Disability Rights, Michael Ashley Stein
China And Disability Rights, Michael Ashley Stein
Faculty Publications
No abstract provided.
Color Conscious: The Unconstitutionality Of Adoptive Parents' Expression Of Racial Preferences In The Adoption Process, Colin Schlueter
Color Conscious: The Unconstitutionality Of Adoptive Parents' Expression Of Racial Preferences In The Adoption Process, Colin Schlueter
William & Mary Bill of Rights Journal
No abstract provided.
The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton
The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton
William & Mary Law Review
No abstract provided.
Towards A New Lens Of Analysis: The History And Future Of Religioius Exemptions To Child Neglect Statutes, Gregory Engle
Towards A New Lens Of Analysis: The History And Future Of Religioius Exemptions To Child Neglect Statutes, Gregory Engle
Law Student Publications
In order to analyze the religious exemptions, this paper will begin with their history. Part II looks at the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) the statute that precipitated their spread, as well as the justifications that it was bolstered upon: Free Exercise of religion and parental rights. The Equal Protection critique follows as Part III, followed by Part IV that discusses the traditional critique, grounded in the Establishment Clause. In Part V, the article will finish with an explanation of why the Equal Protection critique is a much stronger criticism.
Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp
Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp
Allen R. Kamp
ABSTRACT
Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable
Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law, in a way that may utterly defeat that cause.
One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII, “anti-subordination” and “anti-classification.” The …
Free Enterprise And The Rule Of Law: The Political Economy Of Executive Discretion (Efficiency Implications Of Regulatory Enforcement Strategies), Kevin S. Marshall
Free Enterprise And The Rule Of Law: The Political Economy Of Executive Discretion (Efficiency Implications Of Regulatory Enforcement Strategies), Kevin S. Marshall
William & Mary Business Law Review
Economic theory teaches that if all of the operational conditions of the perfectly competitive model hold, then certain efficiencies may be achieved to the favor of a wealth-seeking society, ceteris paribus (assuming all other things remain equal and/or the absence of all other disturbing influences). This Article observes the asymmetrical enforcement of relevant governing laws, regulations and rules eliminates any possibility that all other influences with respect to the performance values of the perfectly competitive model have been neutralized. Under such regulatory enforcement conditions, there can be no wealth-creation expectations.
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black
William & Mary Law Review
This Article analyzes the intersection of state constitutional law right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states’ weakened ability to enforce these rights, the future of education equity depends on federal intervention. with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our …
The Vote From Beyond The Grave, Krysta R. Edwards
The Vote From Beyond The Grave, Krysta R. Edwards
William & Mary Law Review
No abstract provided.
The Gender Gap: A Persistent Problem That Congress Has Yet To Address, Leeron Avnery
The Gender Gap: A Persistent Problem That Congress Has Yet To Address, Leeron Avnery
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Insecure Communities: How Increased Localization Of Immigration Enforcement Under President Obama Through The Secure Communities Program Makes Us Less Safe, And May Violate The Constitution, Rachel Zoghlin
The Modern American
No abstract provided.
Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong
Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong
Faculty Publications
No abstract provided.
Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric, Theresa M. Beiner
Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric, Theresa M. Beiner
Faculty Scholarship
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 - are adjudicated and conceptualized in this country. Shortly after Congress passed Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer conduct. While the Court was more reluctant to presume such discrimination by governmental actors, it was deferent to Congress’s ability to set standards that would presume discrimination. Over time, however, that presumption and the Court’s deference to Congress has …
Maine Election Law: Do Maine’S Petition Signature Requirements Deprive Third-Party Candidates Of Equal Protection And Freedom Of Association Rights?, David W. Morin
Saint Louis University Law Journal
No abstract provided.
Bridging The Title Vii Gap: Protecting All Workers From “Work Authorization” Discrimination, Rachel K. Alexander
Bridging The Title Vii Gap: Protecting All Workers From “Work Authorization” Discrimination, Rachel K. Alexander
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Faculty Scholarship
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …
Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle
Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle
University of Colorado Law Review
In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles. This Article traces the historical foundations …