Law Commons^™

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii

Benjamin V Madison, III

This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.

The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Women’s health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women’s health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools. First, judges regularly—and often inaccurately—cite the theoretical availability of alternative reproductive health services as proof that women’s health will not suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.” Second, when alternatives are not available, …

Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione

John D. Castiglione

This Article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality into two organizing concepts: “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which he serves his sentence, and “quantitative proportionality,” which concerns the temporal length of the sentence imposed. I argue that the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment. The most significant feature of this model is an appreciation for the role of human …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Kimberly Yuracko

This paper seeks to explain a paradox: Why does Title VII’s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Jordan C. Budd

A FOURTH AMENDMENT FOR THE POOR ALONE:

SUBCONSTITUTIONAL STATUS AND THE MYTH OF THE INVIOLATE HOME

Jordan C. Budd

ABSTRACT

For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Jennifer S. Hendricks

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court’s long struggle with the desegregation of public schools. This Article examines the decision’s implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Settling Idea Cases: Making Up Is Hard To Do, Mark C. Weber

Mark C. Weber

Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues—and unique pitfalls—that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement …

A New Look At Section 504 And The Ada In Special Education Cases, Mark C. Weber

Mark C. Weber

School districts are finding fewer children eligible for services under the Individuals with Disabilities Education Act (IDEA). At the same time Congress has expanded the number of children who are protected by section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). These developments present the largely unexplored question of what obligations school districts owe children who have disabilities and are protected under section 504 and the ADA, but who are not eligible for services under IDEA. This article concludes that these children must be provided an education that meets their needs as adequately …

Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark C. Weber

Mark C. Weber

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education …

Unreasonable Accommodation And Due Hardship, Mark C. Weber

Mark C. Weber

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; …

The Law Professor As Counterterrorist Tactician, Lawrence Rosenthal

Lawrence Rosenthal

This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized. His proposals might make …

Book Review: What Comes Naturally: Miscegenation Law And The Making Of Race In America, Taunya Banks

Taunya Lovell Banks

No abstract provided.

Crime And Punishment: Teen Sexting In Context, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber

Hillary B. Farber

Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children …

Balancing The Rights Of The Public With The Jurors' Right To Privacy During The Jury Selection Process, Stephen A. Gerst

Stephen A Gerst

It is rare for a trial judge hearing a criminal case to receive a motion to intervene filed by third parties not named in the proceedings. In the jury selection process of cases involving high profile defendants, however, the public - including the press - has a heightened interest in the proceedings. At the same time, the trial judge may have a heightened interest in the protection of juror privacy. This article discusses the issue of when and under what circumstances a trial court may close proceedings to the public during the jury selection process and seal the written responses …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

The Inconvenience Of A “Constitution [That] Follows The Flag ... But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

Pedro A. Malavet

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes —as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico— is still the dominant interpretation of …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory, Jason R. Bent

Jason R Bent

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International B’hood of Teamsters, 431 U.S. 324, 360-61 (1977), the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a “pattern or practice” of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about …

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

Christopher W. Schmidt

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and …

Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher

Keith Swisher

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Stephen A Gerst

The Sixth Amendment right to an attorney is so fundamental that the United States Supreme Court has carefully developed requirements to ensure that an indigent defendant does not go to trial in any criminal case where there is a possibility of a deprivation of freedom without an attorney unless there is an affirmative waiver of the right to counsel on the record. However, the Supreme Court has not addressed what the record must show for finding that a defendant has lost his right to counsel as a result of the defendant's own misconduct toward the court or the defendant's attorney. …