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Full-Text Articles in Law

Fisher's Fishing Expedition, Vinay Harpalani Dec 2012

Fisher's Fishing Expedition, Vinay Harpalani

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This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of 'critical mass' and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions.


Originalism And The Other Desegregation Decision, Ryan C. Williams Oct 2012

Originalism And The Other Desegregation Decision, Ryan C. Williams

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Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth …


Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts Aug 2012

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

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This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each …


The Long And Winding Road From Monroe To Connick, Sheldon Nahmod Apr 2012

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

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In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …


Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard Apr 2012

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

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The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …


Civil Rights Reform And The Body, Tobias Barrington Wolff Mar 2012

Civil Rights Reform And The Body, Tobias Barrington Wolff

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Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation. This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in …


First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen Mar 2012

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

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No abstract provided.


Collegiality And Individual Dignity, Tobias Barrington Wolff Mar 2012

Collegiality And Individual Dignity, Tobias Barrington Wolff

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This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.


How The Expressive Power Of Title Ix Dilutes Its Promise, Dionne L. Koller Jan 2012

How The Expressive Power Of Title Ix Dilutes Its Promise, Dionne L. Koller

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Title IX is widely credited with shaping new norms for the world of sports by requiring educational institutions to provide equal athletic opportunities to women. The statute and regulations send a message that women are entitled to participate in sports on terms equal to men. For several decades, this message of equality produced dramatic results in participation rates, as the number of women interested in athletics grew substantially. Despite these gains, however, many women and girls, especially those of color and lower socio-economic status, still do not participate in sports, or remain interested in participating, in numbers comparable to their …


Introduction: Special Issue On Law, Kenneth Lasson Jan 2012

Introduction: Special Issue On Law, Kenneth Lasson

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Just as ensuring civil liberties for all requires eternal vigilance, so combating antisemitism is a never-ending quest. But the continuous monitoring of antisemitic incidents—a critical exercise that this journal painstakingly reflects in its “Antisemitica” feature—is merely the beginning of the everlasting effort to limit them. Bigotry comes in many guises and is a constantly evolving target, exposing the limitations of law and the frustrations of justice.

Thus, even in civilized societies where equality under the law is a guiding principle, legal remedies for discrimination are insufficient in and of themselves. They must be accompanied by purposeful good-will and a firm …


Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani Jan 2012

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

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This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea …


Batson Revisited (Symposium), Nancy S. Marder Jan 2012

Batson Revisited (Symposium), Nancy S. Marder

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The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise—preserving peremptories while seeking to address discriminatory peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to …


The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen Jan 2012

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

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Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …


Report - Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene Jan 2012

Report - Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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No abstract provided.


The Social Context Of Oncofertility, Dorothy E. Roberts Jan 2012

The Social Context Of Oncofertility, Dorothy E. Roberts

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A field known as oncofertility provides female cancer patients with a variety of ways to preserve their fertility so that they may bear genetically related children after successful cancer treatment. Some women delay cancer therapy so doctors can collect their eggs, which are then cryopreserved in an unfertilized state or used to create embryos through in vitro fertilization for freezing. An experimental procedure for preserving the fertility of prepubertal girls, known as ovarian tissue cryopreservation, involves surgically removing their ovarian tissue and growing the immature eggs to a mature state so they can be frozen and stored until the girls …


Disparate Impact And Equal Protection After Ricci V. Destefano, Marcia L. Mccormick Jan 2012

Disparate Impact And Equal Protection After Ricci V. Destefano, Marcia L. Mccormick

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As Professor Richard Primus noted in his article, Equal Protection and Disparate Impact: Round Three, the constitutional issues surrounding the disparate impact theory of discrimination have evolved significantly over time. First the question was whether the Constitution’s equal protection guarantee embodied disparateimpact. Most people assumed yes, but the Supreme Court said no in 1976 in Washington v. Davis. Second, the source of Congress’ power to prohibit disparate impact discrimination was called into question with the so-called federalism revolution. Only if it was within Congress’ power under Section 5 of the Fourteenth Amendment could disparate impact legislation be applied to the …


Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby Jan 2012

Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby

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Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 (“Title VI”) and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act (“ACA”) as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …


Debating The Cause Of Health Disparities: Implications For Bioethics And Racial Equality, Dorothy E. Roberts Jan 2012

Debating The Cause Of Health Disparities: Implications For Bioethics And Racial Equality, Dorothy E. Roberts

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No abstract provided.


Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii Jan 2012

Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii

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No abstract provided.


Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby Jan 2012

Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby

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Point (Overview): Interpersonal and institutional racial biases are the principal reasons for racial disparities in accessing health care and disparities in African Americans’ health status, which can only be addressed by acknowledging and putting an end to interpersonal and institutional racial bias in the health care system that adversely affects the health status African-Americans.

Counterpoint (Overview): The irrational structure of health care, which is based on ability to pay, rather than need is the main cause of racial disparities in health, which will not be equalized until the structure of the health care system is fixed or when African Americans’ …


Gender, Family, And Work, Marcia L. Mccormick Jan 2012

Gender, Family, And Work, Marcia L. Mccormick

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The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.


A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker Jan 2012

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

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Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …


Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone Jan 2012

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone

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This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention …


Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner Jan 2012

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

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In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …