Law Commons^™

The Role Of Suspicion In Federal Equal Protection, Paul E. Mcgreal

William & Mary Bill of Rights Journal

Recently, Professor Jed Rubenfeld wrote an essay arguing that the Supreme Court's strict scrutiny test for equal protection works best to "smoke out" the purpose of laws to determine whether they were enacted because of racial bias or preference. Professor Rubenfeld criticized the Court's most recent affirmative action decision in Adarand Constructors, Inc. v. Pena for departing from this "smoking out" approach.

In this Essay, Professor McGreal explores how this "smoking out" process is applied in federal equal protection cases. Counter to Professor Rubenfeld's view, he argues that the Supreme Court did use a "smoking out" approach in Adarand. His …

Commercial Slogans: The First Amendment Should Shield Their Use In Campaign Speech, Raena L. Smith

William & Mary Bill of Rights Journal

Commercial slogans and trademarks are increasingly finding their way into every aspect of the American vernacular, including speech by political officials and candidates. A previous published Note in the Journal of Law and Politics has argued that such speech should be restricted as it infringes upon the copyright or trademark holder's rights established both under federal and state law. This Note takes the opposing view, arguing that, even if campaign speech falls under the purview of federal or state statutes, the First Amendment prevents the application of laws to restrict campaign speech.

Discriminatory Effects: Desegregation Litigation In Higher Education In Georgia, Molly O'Brien

William & Mary Bill of Rights Journal

While no one can deny the importance of desegregating all educational institutions over the past half-century, one of the unexpected consequences of the movement has been to make uncertain the legality of historically black public colleges. This uncertainty has created an opportunity for those who oppose historically black colleges, for whatever reason, to bring suit against them and potentially close their doors for not enrolling a student body that represents the racial make-up of the state. Professor O'Brien explores this issue in her Article by chronicling the progress of higher education in Georgia, from the establishment of a dual system, …

The Unusual Suspects: Journalists As Thieves, William E. Lee

William & Mary Bill of Rights Journal

The publication of confidential information by the press stands in stark contrast to the press' dedication to protecting the confidentiality of sources. While the Supreme Court has taken the position that the press may publish confidential information acquired through "routine" newsgathering methods, the contours of the phrase "routine " newsgathering methods are poorly defined In this Article, Professor Lee describes the link between the manner in which information is obtained and the First Amendment's protection of the publication of the information. He concludes that the proper analysis would separate the interests affected by publication from the interests affected by illegal …

Enclave Districting, Henry L. Chambers

William & Mary Bill of Rights Journal

Congressional districting has historically fostered single-member, geographically compact districts consisting of contiguous territory and has resulted in common representation for those who live near each other. Underlying compact districting is the assumption that people living relatively close together share political interests that can be adequately served by common representation. When the United States was a sparsely populated agrarian nation and only the propertied were the enfranchised, providing common representation based on residential proximity was sensible. Over time, however, the connection between residence and political interests has diminished.

In the wake of the Supreme Court's suggestion that representation should focus on …

Utilizing Statistics And Bellwether Trials In Mass Torts: What Do The Constitution And Federal Rules Of Civil Procedure Permit?, R. Joseph Barton

William & Mary Bill of Rights Journal

Traditional judicial mechanisms that preserve litigants' rights to due process and a jury trial challenge courts to provide litigants their day in court in an efficient and timely manner. This challenge is made exponentially harder where the litigation concerns tortious conduct affecting a large number of persons and giving rise to latent injury. In response to the recent increase in mass tort filings, courts have sought an alternative means of adjudication-the extrapolation of a statistically average, representative plaintiff to other plaintiffs. This Note examines the problems associated with mass tort actions and how two circuit courts of appeals have implemented …

There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White

William & Mary Bill of Rights Journal

In this Essay, Professor White argues that the Supreme Court finally has merged analysis of sexual harassment law with other claims of intentional discrimination. Professor White contends that the Court's decision in Meritor Savings Bank, FSB v. Vinson created confusion over the proper analysis of sexual harassment claims by seemingly embracing quid pro quo and hostile work environment theories as distinct forms of discrimination and by suggesting that at least some sexual harassment claims may warrant a revised approach to employer liability. In the wake of Meritor, sexual harassment claims increasingly were evaluated differently from other claims of disparate treatment, …

Taking Discrimination Seriously: Oncale And The Fate Of Exceptionalism In Sexual Harassment Law, Steven L. Willborn

William & Mary Bill of Rights Journal

In both the case law and the literature, sexual harassment is treated as an exceptional and unique form of discrimination. In this Article, Professor Willborn expands on the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services, Inc. to argue that this exceptionalism should be rejected and that harassment law should return to its roots in the broader body of antidiscrimination law. Professor Willborn begins by articulating the contours of a discrimination-centered model of sexual harassment and explaining how it differs from currently accepted views. He then reviews the Supreme Court's recent cases on sexual harassment, concluding that they …

Strengthening Title Vii: 1997-1998 Sexual Harassment Jurisprudence, Elizabeth D. Evans

William & Mary Bill of Rights Journal

No abstract provided.

Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett

William & Mary Bill of Rights Journal

In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort …

Private Amici Curaie And The Supreme Court's 1997-1998 Term Employment Law Jurisprudence, Andrew P. Morriss

William & Mary Bill of Rights Journal

The amicus curiae brief has become a common occurrence in today's legal arena, especially with the proliferation of private interest groups that specialize in numerous topics of political and social interest. The substantial increase in the use of amici briefs, however, has sparked criticism concerning both the costs (in effort and resources) associated with filing these griefs and the persuasive effect (or lack thereof) the briefs have on the Court. Much of this criticism arises from the failure of many interest groups to posit "legal" arguments that apply the facts of a given case to the law. Instead, the amici …

Continuing The Trend Toward Equality: The Eradication Of Racially And Sexually Discriminatory Provisions In Private Trusts, Katheryn F. Voyer

William & Mary Bill of Rights Journal

Racially and sexually discriminatory private trusts are presumed to be valid under traditional common law governing dispositions of property. Most courts have held that if the state plays a "passive" role, only private actors are involved and the Fourteenth Amendment is not implicated The United States Supreme Court, however, has declared in one context that discriminatory charitable trusts violate public policy and are unconstitutional. This Note argues that because private trusts involve unlawful state action and are not purely private, courts have an affirmative obligation imposed by the Supreme Court and a moral responsibility because of well-established public policy against …

The Plain Meaning Of Oncale, Catherine J. Lanctot

William & Mary Bill of Rights Journal

The unanimous Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc. caught many observers by surprise. Even more surprising than the Court's unanimity on the divisive issue of same-sex harassment, however, was the author of the opinion-the deeply conservative Justice Antonin Scalia. Many commentators suggest that the opinion's requirement that plaintiffs prove that the harassment was "because of sex" will hamper lawsuits arising from single-sex work environments. Attempts to fit the decision within traditional Title VII jurisprudence inevitably will be clouded by conjecture about Scalia's true intent. Indeed, after one year of experience with Oncale, the judicial record is …

Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky

William & Mary Bill of Rights Journal

The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …

Technology And The Right To Privacy: The Convergence Of Surveillance And Information Privacy Concerns, Thomas B. Kearns

William & Mary Bill of Rights Journal

While the privacy concerns raised by advances in surveillance and information technologies are widely recognized, recent developments have led to a convergence of these technologies in many situations, presenting new challenges to the right to privacy. This Note examines this convergence of surveillance and information technologies and its potential impact on individual privacy interests.

The Note first discusses the right to privacy, personal information, and surveillance technology separately, noting ways that new technologies create privacy concerns. The Note then describes the merging of surveillance and information technologies and the resulting convergence of two formerly distinct privacy issues. Finally, the Note …

Access Denied: Incarcerated Juveniles And Their Right Of Access To Courts, Amy E. Webbink

William & Mary Bill of Rights Journal

In the current flux of an increasingly punitive juvenile justice system, one of the system's great injustices receives little attention. Unconstitutional conditions of confinement for juveniles do not receive appropriate legal exposure. Challenges to these conditions are more difficult in light of the Supreme Court's recent restriction of a prisoner's right of access to the courts. This Note will analyze why a different standard of "meaningful access" is necessary to protect juveniles.

The Hatefulness Of Protected Speech: A Comparison Of The American And European Approaches, Sionaidh Douglas-Scott

William & Mary Bill of Rights Journal

In its First Amendment jurisprudence, the United States Supreme Court has construed very broadly the constitutional protection of free speech. Similarly democratic governments in Europe, however, have adopted laws restricting certain types of speech-particularly hate speech-based on the view that the human rights of oppressed groups cannot be protected fully if hate speech is permitted In this provocative Article, Professor Douglas-Scott briefly examines the American approach and contrasts it with the rationale underpinning European, especially German, law. Focusing on hate speech and the denial of the Holocaust voiced largely by neo-Nazi and other right-wing groups, she argues that such speech …

Tench Coxe And The Right To Keep And Bear Arms, 1787-1823, Stephen P. Halbrook, David B. Kopel

William & Mary Bill of Rights Journal

Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe 's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was necessary …

The Loss Of Privacy Is Just A Heartbeat Away: An Exploration Of Government Heartbeat Detection Technology And Its Impact On Fourth Amendment Protections, George M. Dery Iii

William & Mary Bill of Rights Journal

The Department of Energy has developed the "Enclosed Space Detection System" (ESDS), a search tool that enables officials to identify persons hidden inside vehicles at certain sensitive sites, such as nuclear facilities. ESDS operates by measuring the movements in vehicles generated by the beating of an occupant's heart. This Article considers the Fourth Amendment privacy implications caused by the advent of a technology so advanced that it can probe all the way to one's heart. Specifically, this Article critically examines the Supreme Court's Fourth Amendment precedent concerning the definition of a "search" and the application of the "special needs" doctrine …

Can Congress Regulate Firearms?: Printz V. United States And The Intersection Of The Commerce Clause, The Tenth Amendment, And The Second Amendment, Kevin T. Streit

William & Mary Bill of Rights Journal

The recent U.S. Supreme Court decision in Printz v. United States restricted congressional legislative authority by striking down the interim provisions of the Brady Handgun Violence Prevention Act. The decision followed United States v. Lopez, in which the Court struck down the Gun-Free School Zones Act. In both cases, the Court restricted the congressional Commerce Power and renewed the strength of the Tenth Amendment in protecting states' rights from federal intrusion.

Because both cases involved statutes regulating firearms, however, they also raised important questions regarding the Second Amendment. Following the Lopez decision, some commentators argued that both the Tenth and …

Tyranny Of The Judiciary: Judicial Dilution Of Consent Under Section 2 Of The Voting Rights Act, James Thomas Tucker

William & Mary Bill of Rights Journal

"Every man takes the arm of the law for his protections as more effectual than his own, and therefore every man has an equal right in the formation of the government and of the laws by which he is to be governed and judged "' When Thomas Paine wrote these words over two hundred years ago, he captured the essence of American democracy. Having a voice in government means more than merely casting a ballot. Instead, the basic right of all qualified citizens to grant or withhold their consent mandates 'fair and effective representation ": a right to elect representatives …