Law Commons^™

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Scholarship@WashULaw

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

Beyond The Limits Of Equity Jurisprudence: No-Fault Equitable Subordination, Rafael I. Pardo

Scholarship@WashULaw

In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor's claim. This Note argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Code, the doctrine of equitable subordination requires a finding of creditor misconduct, …

The Private Law Of Race And Sex: An Antebellum Perspective, Adrienne D. Davis

Scholarship@WashULaw

In this article, Professor Adrienne D. Davis traces the interaction of race, sex, and estate law in the antebellum and postbellum South. Through a close analysis of intestate succession and testamentary transfers involving the formerly enslaved, she unearths the role of private law in reconciling and preserving both property rights and racial hierarchy. The article centers on a series of historical case studies involving the rights of formerly enslaved women and their children to postmortem transfers of wealth. While the law of private property generally served to reinforce racial hierarchy, these cases involved the use of property rights -- specifically, …

Identity Notes Part Ii: Redeeming The Body Politic, Adrienne D. Davis

Scholarship@WashULaw

These remarks were given in April 1996 at the First Annual LatCrit Conference, co-sponsored by California Western Law School and the Harvard Latino Law Review. While the body of Christ has not been used explicitly to order secular American law and political theory, a multi-dimensional analysis of his body in Western political theory would have to include its use at a critical historic moment as an organizing metaphor for the racial order of the United States and the consolidation of the national identity as white. Reclamation of the national identity as historically always diverse, documentation of the denial of citizenship …

Identity Notes Part One: Playing In The Light, Adrienne D. Davis

Scholarship@WashULaw

This Essay had its origins in a panel held during the Washington College of Law at American University's conference on Race, Law and Justice: The Rehnquist Court and the American Dilemma on September 21, 1995. The title of my panel, "Beyond Black and White: Race Conscious Policies and the 'Other Minorities,'" crafted by the conference organizers accomplishes subtly several things that I hope to continue in more explicit fashion in this Essay. The title challenges false binary racial logic from the position of groups who are neither Black nor white. It also foregrounds the history behind the development of this …

Language And Silence: Making Systems Of Privilege Visible, Adrienne D. Davis, Stephanie M. Wildman

Scholarship@WashULaw

A colleague of mine once had a dream in which I appeared. My colleague, who is African-American, was struggling in this dream to be himself in the presence of a monolithic white maleness that wanted to oppress my friend and deny his intellect, his humanity, and his belonging in our community. In his dream, I, a white woman, attempted to speak on his behalf, but the white man and I spoke as if my friend were not there.

This portrayal disturbed me because I know my friend can speak for himself. Recognizing this fact, he described my discomfort at participating …

Fighting Exclusion From Televised Presidential Debates: Minor-Party Candidates' Standing To Challenge Sponsoring Organizations' Tax-Exempt Status Note, Gregory P. Magarian

Scholarship@WashULaw

This Note argues that courts should recognize minor-party presidential candidates' standing to challenge the section 50l(c)(3) tax-exempt status of organizations sponsoring televised debates that exclude minor-party candidates. Part I situates the issue within the context of the Supreme Court's standing jurisprudence and concludes that the validity of a third-party tax-status challenge by an aggrieved minor-party presidential candidate remains an open question. Part II analyzes the Second and District of Columbia Circuits' decisions and concludes that the Second Circuit's approach properly interprets the Supreme Court's standing doctrine and correctly resolves the particular arguments which both courts consider. Part III first demonstrates …

Book Reviews & Notices: Mark A. Graber, Transforming Free Speech, Gregory P. Magarian

Scholarship@WashULaw

Gregory P. Magarian, Book Reviews & Notices: Mark A. Graber, Transforming Free Speech, 90 Mich. L. Rev. 1425 (1992)

Of Love And Liberation: A Book Review Of Breaking Bread, Adrienne D. Davis

Scholarship@WashULaw

The label "Black intellectual" may be either oxymoronic or redundant, depending on the content one ascribes to the term and the historic context in which it is situated.