Law Commons^™

Striving For The Mountaintop: The Elimination Of Health Disparities In A Time Of Retrenchment (1968-2018), Gwendolyn R. Majette

Law Faculty Articles and Essays

Health disparities in the United States are real. People of color are the adverse beneficiaries of these facts-lower life expectancy, higher rates of morbidity and mortality, and poorer health outcomes in general. This Article analyzes the laws and policies that improve and create barriers to improving people of color's health since the death of Reverend Martin Luther King, Jr. in 1968. The Article builds upon my earlier scholarship and considers the effectiveness of the "PPACA Framework to Eliminate Health Disparities" since the Patient Protection and Affordable Care Act (PPACA) was enacted in 2010.

The Article also explores the impact of …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Fear Of A Multiracial Planet: Loving'S Children And The Genocide Of The White Race, Reginald Oh

Law Faculty Articles and Essays

Fifty years after the U.S. Supreme Court ruled in Loving v. Virginia that prohibitions against interracial marriages were unconstitutional, strong cultural opposition to interracial couples, marriages, and families continues to exist. Illustrative of this opposition is the controversy over an Old Navy clothing store advertisement posted on Twitter in spring 2016. The advertisement depicted an African American woman and a white man together with a presumably mixed-race child. The white man is carrying the boy on his back. It is a clear depiction of an interracial family. Although seemingly innocuous, this advertisement sparked a flood of comments expressing open hostility …

Reflections On The Persistence Of Racial Segregation In Housing, Alan C. Weinstein

Law Faculty Articles and Essays

This article is Weinstein's reflection on the Annual Sullivan Lecture entitled Crossing Two Color Lines: Interracial Marriage and Residential Segregation in Chicago by Dorothy E. Roberts (2016).

INTRODUCTION My reflection on Professor Roberts' Sullivan Lecture poses two questions. First, how far have we come as a nation from the hypersegregated housing patterns of the 1930s through 1960s that Professor Roberts described in her lecture? Regrettably, the answer appears to be not far at all. Further, we are today faced with a second form of hypersegregation, one based on income rather than race. Second, why have we made so little progress …

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.

Law Faculty Articles and Essays

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

Global Health Law Norms And The Ppaca Framework To Eliminate Health Disparities, Gwendolyn R. Majette

Law Faculty Articles and Essays

This Article analyzes how PPACA constitutes framework legislation that complies with global health law norms protecting a right to health in its approach to the reduction of health care disparities for racial and ethnic minorities in the United States. Part I identifies the global health laws that impose a duty on the United States to eliminate health disparities for people of color. Part II analyzes the legislative framework that PPACA creates to protect the right to health and eliminate health care disparities. Finally, Part III concludes with my recommendations on future efforts to reduce and eliminate health care disparities for …

Family, Cubicle Mate And Everyone In Between: A Novel Approach To Protecting Employees From Third-Party Retaliation Under Title Vii And Kindred Statutes, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after an employee …

From Reconstruction To Obama: Understanding Black Invisibility, Racism In Appalachia, And The Legal Community's Responsibility To Promote A Dialogue On Race At The Wvu College Of Law, Brandon Stump

Law Faculty Articles and Essays

This Note focuses on legal education in the United States and West Virginia in particular. Discussions on race, racism, and American law should take place in every legal classroom where race is relevant to the subject being discussed as a way to bridge gaps between communities. This is especially true for the West Virginia University College of Law ("College of Law"), which sits in the third whitest state in the country. The College of Law is the only law school in the state, and a majority of students at the College of Law are white and West Virginian. Thus, at …

Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.

Law Faculty Articles and Essays

In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public …

Interracial Marriage In The Shadows Of Jim Crow: Racial Segregation As A System Of Racial And Gender Subordination, Reginald Oh

Law Faculty Articles and Essays

This Essay works through essentialist language to reveal the multidimensional nature of racial segregation as a system of subordination. Specifically, it examines how racial segregation in public schools and laws prohibiting interracial marriage mutually reinforce racial and gender inequality. Part I discusses Brown and the traditional analysis of that decision as a case dealing with race, racial stigma, and equal educational opportunity. Part II reviews laws prohibiting interracial marriage, the reasoning and purpose behind these laws, and the Loving decision that rendered such laws unconstitutional. Part III then examines racial segregation in public schools as more than just a system …

Changing The Bathwater And Keeping The Baby: Exploring New Ways Of Evaluating Intent In Environmental Discrimination Cases, Browne C. Lewis

Law Faculty Articles and Essays

This paper is divided into four parts. Part one consists of a general overview of the problem of environmental discrimination. Part two gives a brief discussion of relevant Equal Protection jurisprudence. The section begins with a summary of general Equal Protection law. Then, the section analyzes the primary cases that established the foundation of modem-day Equal Protection doctrine. Part three examines the current application of the intent requirement in environmental discrimination cases. To that end, the section reviews the outcome of three of the early environmental discrimination cases, and speculates about the components that are necessary to prepare a successful …

What You Don't Know Can Hurt You: The Importance Of Information In The Battle Against Environmental Class And Racial Discrimination, Browne C. Lewis

Law Faculty Articles and Essays

People across the country have witnessed the quality of their local environment decline in the name of progress but Lewis argues that tow-income and minority persons have observed the disproportionate placement of environmental hazards in their communities. That disparity has partially resulted from environmental discrimination based upon class and race. Acknowledging unequal treatment of low-income and minority persons has led to the development of the concept of "environmental justice. "

The premise of this Article is that, in order to effectively combat environmental discrimination, people must have access to quality information. Information may be used as a remedial measure. This …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Oh discusses how the U.S. Supreme Court, in General Dynamics Land Systems, Inc. v. Cline, 124 S. Ct. 1236 (2004), settled a circuit court conflict over the viability of "reverse age discriminations" claim under the Age Discrimination in Employment Act (ADEA). The Court, in a 6-3 decision, held that statutorily protected workers over the age of forty may not bring an ADEA claim alleging that their employer discriminated against them in favor of older employees.

Brown'S Legacy Then And Now: Race And Law School Admissions Debates Continue After Nearly 70 Years, Lauren M. Collins

Law Faculty Articles and Essays

Next month marks the 50th anniversary of the landmark desegregation case Brown v. Board of Education. Although this case represents a major victory in the battle for civil rights, the struggle against racism in education began some 20 years prior to Brown. During the 1930s and 1940s, at least seven African-American law school candidates aggressively challenged the unequal treatment of minority applicants in state courts, some eventually reaching the U.S. Supreme Court. Early successes in these cases lead to the more sweeping Brown decision, which then contributed to further law school admission policy reform. Discussion about the role of …

A Critical Linguistic Analysis Of Equal Protection Doctrine: Are Whites A Suspect Class, Reginald Oh

Law Faculty Articles and Essays

This Article contends that the linguistic structure of equal protection doctrine has played a major role in shaping and influencing its evolution and development. To show how linguistic structure shapes substantive legal discourse, this Article will examine a fundamental question that deals with equal protection law: when should the Court subject a law to heightened judicial scrutiny? Typically, when dealing with equal protection challenges to governmental action, the Court will generally defer to legislative judgment, presume the constitutionality of the legislation, and uphold the statute. However, under some circumstances, the Court will remove the presumption of constitutionality and subject certain …

Tumbling Towers As Turning Points: Will 9/11 Usher In A New Civil Rights Era For Gay Men And Lesbians In The United States?, Susan J. Becker

Law Faculty Articles and Essays

This article examines the events of 9/11, and the potential resultant shifts in attitude, policies, and laws in the United States, through the lens of civil rights extended to gay and lesbian citizens. It seeks, but does not purport to definitively discover, the true meaning of the phrase "life will never be the same." It asks, but does not purport to fully answer, whether historians a century or two hence will look back on 9/11 as the turning point when the United States began to fulfill its promise of liberty to all people, or whether this date will be earmarked …

Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke

Law Faculty Articles and Essays

The main charge to me is to show you alternatives other than, for instance, federal legislation that could be deployed to rectify genetic discrimination.You may have noticed that in our conference materials, and in a number of the presentations, there has been either an explicit or an implicit call along the lines of “there ought to be a law that ...” Professor Hoffman and I agree: there ought to be some laws, but I want to talk to you a little bit about two possible, two real goals here.One is to ask you to critically evaluate whether a federal statute …

Constitutional Classifications And The "Gay Gene", Susan J. Becker

Law Faculty Articles and Essays

In this essay the author discusses the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called “gay gene” on legal classifications.

Gay And Lesbian Applicants To The Bar: Even Lord Devlin Could Not Defend Exclusion, Joel J. Finer

Law Faculty Articles and Essays

In 1957, the publication of a report to Parliament, the Wolfenden Report, which recommended the repeal of laws criminalizing private homosexual conduct between consenting adults, sparked an intensely debated controversy in political philosophy and jurisprudence. The issue: is society justified in criminalizing behavior which, although causing no secular harm, transgresses widely held moral values? The principal proponent of morals legislation was Lord Patrick Devlin, who responded to the Wolfenden recommendation with a paper disputing the report's premises--that criminal law had no proper business punishing private immorality.Oxford Professor of Jurisprudence H.L.A. Hart, a philosophical successor to the libertarianism of John Stuart …

The First Amendment's Petition Clause As An Alternative Basis For Challenging Voter Initiatives That Burden The Enactment Of Anti-Discrimination Protection For Gays, Lesbians, And Bisexuals, Kevin F. O'Neill

Law Faculty Articles and Essays

In the battle for gay, lesbian, and bisexual rights, most of the fighting has centered on two sources of constitutional protection: substantive due process and equal protection. Unfortunately, courts have been reluctant to find in either of those constitutional guarantees a broad source of protection for gays, lesbians, and bisexuals. The purpose of my remarks today is to suggest that the First Amendment—specifically, the Petition Clause of the First Amendment—provides an alternative basis for vindicating gay, lesbian, and bisexual rights in certain cases. At least in the context of voter initiatives that seek to abolish anti-discrimination protection for sexual orientation, …

Brief Against Homophobia At The Bar: To Law School Dean-Mid 1960s, Joel J. Finer

Law Faculty Articles and Essays

In the mid-1960s, the author addressed the following "brief" to the Dean of a major law school on behalf of a law student, successfully urging that the Dean not report the student's homosexual activities to the state Bar committee which screened applicants for "good moral character." My own view, to be presently elaborated, is that to deprive a law student of the well-earned fruits of his labor on the basis of psychiatric findings that he might, at some future time commit a homosexual act that might become public and might merely embarrass a client, employer or associate, would manifest gross …

Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson

Law Faculty Articles and Essays

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article's title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs …

The "Race-Neutral" Option For Local Government Contracting Programs, Alan C. Weinstein

Law Faculty Articles and Essays

Despite the dismal record cities have compiled of late in defending their race-conscious contracting programs, this article seeks "to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" If a local government follows the course outlined above, and combines the ability to monitor and analyze all relevant contracting data with the enactment and implementation of a multi-faceted race-neutral program, it has laid a sound foundation for the subsequent enactment of race-conscious remedies that are narrowly-tailored to address statistically valid disparities in utilization of specific categories of MBEs that remain after the race-neutral program has been …

Book Review, Kenneth J. Kowalski

Law Faculty Articles and Essays

Reviewing L. S. Platt & C. Ventrell-Monsees, Age Discrimination Litigation, James Publishing (2000)

Eleventh Amendment Federalism And State Sovereign Immunity Cases: Direct Effect On Section 1983?, Steven H. Steinglass

Law Faculty Articles and Essays

I was asked to address briefly the impact of the Supreme Court's recent Eleventh Amendment, federalism, and state sovereign immunity decisions on Section 1983 litigation. These cases are unlikely to have any direct or significant impact on Section 1983 litigation in the state or federal courts. On the other hand, these decisions will likely have a significant impact on non-Section 1983 litigation, including non-Section 1983 civil rights litigation. For example, a few weeks ago the Supreme Court heard an argument in an Age Discrimination and Education Act (hereinafter "ADEA") case involving claims brought directly against the state. The recent Supreme …

Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte

Law Faculty Articles and Essays

The notion of spiritual equality grew from the abolitionist movement - the precursor for the political ideology of the radical Republicans. The radical Republicans did not think one could achieve the acceptance of spiritual equality through forced material equality. [I]t was a religious revival that brought our country to confront the reality of slavery. It was a theological doctrine from which we derived our notion of equality in the Reconstruction Amendments. And in that era, the free-thinkers - the secularists of the age - were temporizers on the issue. They were simply of no use in the raising to liberty …

Adea Claimant Can Retain Severance Payments And Sue Former Employer, Susan J. Becker

Law Faculty Articles and Essays

Former employees can maintain claims under the Age Discrimination in Employment Act (ADEA) without first repaying the consideration received for an invalid release of claims. The Supreme Court's pronouncement, Oubre v. Entergy Operations, Inc., 1988 U.S. Lexis 646 (Jan. 26, 1998), may change the way many employers negotiate and execute severance packages and settlements with terminated employees.