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 …

A Paradox In Employment: The Contradiction That Exists Between Immigration Laws And Outsourcing Practices, And Its Impact On The Legal And Illegal Minority Working Classes, Mary O'Sullivan

Mary T O'Sullivan

The drastic distinctions between the United States’ immigration and outsourcing policies have created a system where American companies are able to send unlimited jobs overseas, yet, have very restricted ability to bring workers to domestic offices and factories. Restrictive immigration policies seek to protect American jobs, while liberal outsourcing regulations permit, and encourage, employers to send jobs outside of the United States. As a result, the United States’ outsourcing policy sabotages the purpose of American immigration laws. The uncertainty of the contradiction between immigration and outsourcing policy may be the cause of unusually high unemployment numbers, particularly in the minority …

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 …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Katherine L. Vaughns

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs suggest that …

Border Fixation: The Appearance Of Security And Control In Immigration Reform, Katherine L. Vaughns

Katherine L. Vaughns

Immigration reform is the subject of intense discussion among politicians, policy experts, analysts, and advocacy groups alike; America’s never-ending debate which today has been infected with shameless demagoguery, rendering sound policy choices virtually impossible. And in this political cauldron, the appearance of border security and control through symbolism and political rhetoric substitute for the practical realities that are essential to inform policymakers about the appropriate administration and enforcement of U.S. immigration laws. For Congress has had an ongoing, unsound focus on sealing the border it shares with Mexico, its southwestern neighbor, seemingly without regard to costs especially in the post-9/11 …

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 …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

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 …

The Future Of Same-Sex Marriage In California, Elizabeth Hollis

Elizabeth Hollis

This article will discuss in detail the issues relating to the rights of same-sex couples wishing to get married in California. First the article examines the history of same-sex marriage in California prior to the most recent Perry v. Brown ruling. The article then focuses on the named plaintiffs in this case, concentrating particularly on their history and how they became involved in the case. Next, the litigation process of Perry v. Brown and the recent decision handed down by Circuit Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit will be reviewed. Finally, the …

I Wanna Marry You: An Empirical Analysis Of The Distraction And Irrelevancy Of Doma, Deirdre M. Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

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, …

Politics As Usual: Black Stereotypes And President Obama's Racialization, Lynnette Jenkins

Lynnette R Jenkins

President Barack Obama attempted to transcend race by running a colorblind campaign and administration. Nevertheless, the President and First Lady Michelle Obama have been racialized by media as the result of stereotyping and white supremacy. This paper will demonstrate that racism is not a relic of the past by drawing parallels between previous racist imagery and current media depictions of Barack and Michelle Obama.

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 …

Not Getting Hired Because You Are Obese, But Not Getting Fired Because You Are Obese: How The New Changes To The Ada Have Set A Double Standard, And What’S To Prevent Companies From Trimming The Fat At The Office, Joshua Forman

Joshua Benjamin Forman

This article examines how the recent amendments to the Americans with Disabilities Act fail to afford people who are classified as obese the protection against employment discrimination they deserve. Part I outlines the development of the history of protections afforded to individuals who are disabled. Part II concentrates on obesity as a medical condition and the way in which society perceives those who are obese. Part III focuses on whether or not obesity can be classified as a disability under the ADAAA. Part IV provides a pragmatic solution, which identifies safeguards for an obese person at each level of the …

Not Getting Hired Because You Are Obese, But Not Getting Fired Because You Are Obese: How The New Changes To The Ada Have Set A Double Standard, And What’S To Prevent Companies From Trimming The Fat At The Office, Joshua Benjamin Forman

Joshua Benjamin Forman

This article examines how the recent amendments to the Americans with Disabilities Act fail to afford people who are classified as obese the protection against employment discrimination they deserve. Part I outlines the development of the history of protections afforded to individuals who are disabled. Part II concentrates on obesity as a medical condition and the way in which society perceives those who are obese. Part III focuses on whether or not obesity can be classified as a disability under the ADAAA. Part IV provides a pragmatic solution, which identifies safeguards for an obese person at each level of the …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin