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Full-Text Articles in Law
Protected Class Gatekeeping, Jessica A. Clarke
Protected Class Gatekeeping, Jessica A. Clarke
Vanderbilt Law School Faculty Publications
Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed …
Atrocity, Entitlement, And Personhood In Property, Daniel J. Sharfstein
Atrocity, Entitlement, And Personhood In Property, Daniel J. Sharfstein
Vanderbilt Law School Faculty Publications
For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value†in property — upends core assumptions about the American property tradition and …
Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke
Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke
Vanderbilt Law School Faculty Publications
This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that …