Law Commons^™

The Relative Autonomy Of The United States Supreme Court, Thomas Kleven

Thomas Kleven

The thesis of this article is that in performing the function of judicial review, the Supreme Court of the United States of America acts as a relatively autonomous institution.

Is Capital Punishment Immoral Even If It Deters Murder, Thomas Kleven

Thomas Kleven

No abstract provided.

Why International Law Favors Emigration Over Immigration, Thomas Kleven

Thomas Kleven

No abstract provided.

Federalizing Public Education, Thomas Kleven

Thomas Kleven

This article assesses the case for federalizing public education in the United States. The starting point is a conception of democracy I call equitable sharing, meaning that the goods of social life must be equitably distributed among all society’s members. I argue that equitable sharing mandates society to ensure that all children have access to a relatively equal educational opportunity—i.e., a comparable opportunity to advance educationally as far as their abilities, interests and willingness to strive allow—at least through elementary and secondary school. To set the stage for discussing the merits of federalization, I examine various models through which society …

On Brown V. Board Of Education's 50th Anniversary: To Integrate Or Separate Is Not The Question

Thomas Kleven

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in …

Equitable Sharing: Distributing The Benefits And Detriments Of Democratic Society, Thomas Kleven

Thomas Kleven

The book argues that a principle of equitable sharing is fundamental to the concept of democracy and to the democratic society the United States purports to be. It examines the political philosophies of John Locke, John Stuart Mill, and John Rawls, all of which contain a principle of equitable sharing in some form. It then examines the Declaration of Independence and the Constitution, both of which evidence a commitment to equitable sharing as foundational to the democratic society they contemplate. The book argues that the Supreme Court also has a meaningful role to play in the dialogue over the requirements …

On The Freedom To Associate Or Not To Associate With Others

Thomas Kleven

This article discusses the freedom to associate or not to associate with others. Associational issues are pervasive in the law, and arise on both an individual and a societal level. Within societies one party may want to have an association with another who doesn’t want the association, or parties may want to have an association that others find objectionable or may want not to have an association that others favor. In all of these situations society as a whole must decide whether to empower one party to impose an unwanted relationship on others, and whether to prohibit associations that parties …

Is Capital Punishment Immoral Even If It Does Deter Murder?

Thomas Kleven

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

On The Freedom To Associate Or Not To Associate With Others, Thomas Kleven

Thomas Kleven

In casual conversation, it is commonly asserted that there is, or should be, a right to associate or not to associate with whom one chooses. Societies, however, frequently induce associations people do not want and deter those they do. This article addresses the types of situations that give rise to associational issues and the considerations relevant to their resolution. It does not attempt to develop a general theory of free association because, given the unresolvable value disputes underlying all associational issues, I am skeptical about the possibility of developing such a general theory. Unpacking how differing associational issues are resolved …

The Supreme Court, Race, And The Class Struggle, Thomas Kleven

Thomas Kleven

No abstract provided.

The Democratic Right To Full Bilingual Education, Thomas Kleven

Thomas Kleven

No abstract provided.

Equitable Sharing: Distributing The Benefits And Detriments Of Democratic Society, Thomas Kleven

Thomas Kleven

The book argues that a principle of equitable sharing is fundamental to the concept of democracy and to the democratic society the United States purports to be. It examines the political philosophies of John Locke, John Stuart Mill, and John Rawls, all of which contain a principle of equitable sharing in some form. It then examines the Declaration of Independence and the Constitution, both of which evidence a commitment to equitable sharing as foundational to the democratic society they contemplate. The book argues that the Supreme Court also has a meaningful role to play in the dialogue over the requirements …

Equitable Sharing And The Supreme Court, Thomas Kleven

Thomas Kleven

Federalizing Public Education, Thomas Kleven

Thomas Kleven

This article assesses the case for federalizing public education in the United States. The starting point is a conception of democracy I call equitable sharing, meaning that the goods of social life must be equitably distributed among all society’s members. I argue that equitable sharing mandates society to ensure that all children have access to a relatively equal educational opportunity—i.e., a comparable opportunity to advance educationally as far as their abilities, interests and willingness to strive allow—at least through elementary and secondary school. To set the stage for discussing the merits of federalization, I examine various models through which society …

Systemic Classism, Systemic Racism: Are Social And Racial Justice Achievable In The United States?, Thomas Kleven

Thomas Kleven

This paper argues that the United States is systemically a highly classist and racist society, that systemic classism and racism are intimately interrelated phenomena, and that reforming this situation requires a mass movement of working class people of all ethnicities for social and racial justice for all. Section II discusses aspects of American society infected by systemic classism and racism. The focus is on the economic system, the local governmental structure, and the political process – central and interrelated features of society’s class and racial hierarchies. The thesis is that these institutions are structured and operate so as to systematically …

Systemic Classism, Systemic Racism: Are Social And Racial Justice Achievable In The United States?, Thomas Kleven

Thomas Kleven

This paper argues that the United States is systemically a highly classist and racist society, that systemic classism and racism are intimately interrelated phenomena, and that reforming this situation requires a mass movement of working class people of all ethnicities for social and racial justice for all. Section II discusses aspects of American society infected by systemic classism and racism. The focus is on the economic system, the local governmental structure, and the political process – central and interrelated features of society’s class and racial hierarchies. The thesis is that these institutions are structured and operate so as to systematically …

Mandating Public School Attendance: A Proposal For Achieving Racial And Class Integration, Thomas Kleven

Thomas Kleven

The paper argues that big city school districts should consider mandating that all children attend public school as a means of integrating their schools racially and economically. Many educators believe that racial and class integration is necessary to equalize educational opportunity. A major factor impeding integration is that many minority and lower income children are essentially trapped in inner city schools where most students are from the same socio-economic and ethnic background. Much of this racial and class separation is the result of white and middle class flight to suburbia over the past 50 years or so. Nevertheless, because significant …

Mandating Public School Attendance: A Proposal For Achieving Racial And Class Integration, Thomas Kleven

Thomas Kleven

The paper argues that big city school districts should consider mandating that all children attend public school as a means of integrating their schools racially and economically. Many educators believe that racial and class integration is necessary to equalize educational opportunity. A major factor impeding integration is that many minority and lower income children are essentially trapped in inner city schools where most students are from the same socio-economic and ethnic background. Much of this racial and class separation is the result of white and middle class flight to suburbia over the past 50 years or so. Nevertheless, because significant …

The Democratic Right To Full Bilingual Education, Thomas Kleven

Thomas Kleven

The law currently provides no right to bilingual education as such. The state does have a duty to take reasonable steps to overcome the English language deficiencies of children whose native language is not English. If transitional bilingual education is necessary to achieve that end, then it is required. But if not, if, for example, total immersion works as a way to achieve proficiency in English, then bilingual education is not required. Moreover, to the extent it is required, bilingual education may be discontinued once the transition to English is achieved. There is no obligation to enable a non-native English …

Is Capital Punishment Immoral Even If It Deters Murder?, Thomas Kleven

Thomas Kleven

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Is Capital Punishment Immoral Even If It Deters Murder?, Thomas Kleven

Thomas Kleven

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Is Capital Punishment Immoral Even If It Deters Murder?, Thomas Kleven

Thomas Kleven

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Brown's Lesson: To Integrate Or Separate Is Not The Question, But How To Achieve A Non-Racist Society, Thomas Kleven

Thomas Kleven