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Full-Text Articles in Law

Note, Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen Jan 2004

Note, Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Articles

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.


Diversity And The Practice Of Interest Assessment, Robert F. Nagel Jan 2004

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Articles

No abstract provided.


Grutter V. Bollinger: This Generation’S Brown V. Board Of Education?, Michelle Adams Jan 2004

Grutter V. Bollinger: This Generation’S Brown V. Board Of Education?, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court ...


A Glimpse Behind And Beyond Grutter, Evan H. Caminker Jan 2004

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

Articles

Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.


Bolling Alone, Richard A. Primus Jan 2004

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually ...


Resurrecting The White Primary, Ellen D. Katz Jan 2004

Resurrecting The White Primary, Ellen D. Katz

Articles

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the ...


Reparations As Redistribution, Kyle D. Logue Jan 2004

Reparations As Redistribution, Kyle D. Logue

Articles

The most controversial, and most intriguing, remedy sought by proponents of slavery reparations involves massive redistribution of wealth from whites to blacks within the United States. This is not to say that reparations proponents have focused only on racial redistribution. Some have called for an official apology from the U.S. government. Others seek the creation of a foundation or institute, funded by U.S. tax dollars, to be devoted to furthering the interests of African Americans, including the funding of K- 12 educational programs for black children and the funding of general civil rights advocacy to counteract the lingering ...


Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott Jan 2004

Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott

Articles

Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed ...


Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott Jan 2004

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.


Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske Jan 2004

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the ...


Color/Identity/Justice: Chicano Trials (Book Review), Anthony V. Alfieri Jan 2004

Color/Identity/Justice: Chicano Trials (Book Review), Anthony V. Alfieri

Articles

No abstract provided.


Brennan Center For Justice Symposium Introduction: Diversity, Impartiality, And Representation On The Bench, Kele Williams Jan 2004

Brennan Center For Justice Symposium Introduction: Diversity, Impartiality, And Representation On The Bench, Kele Williams

Articles

No abstract provided.


Mercy Lawyers, Anthony V. Alfieri Jan 2004

Mercy Lawyers, Anthony V. Alfieri

Articles

No abstract provided.


Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun Jan 2004

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

Articles

No abstract provided.


Race As Proxy: Situational Racism And Self-Fulfilling Stereotypes, Lu-In Wang Jan 2004

Race As Proxy: Situational Racism And Self-Fulfilling Stereotypes, Lu-In Wang

Articles

In our society, race can act as a proxy for a long list of characteristics, qualities, and statuses. For people of color, the most powerful of these associations have too often been negative, and have carried with them correspondingly negative consequences. We often link color with undesirable personal qualities such as laziness, incompetence, and hostility, as well as disfavored political viewpoints such as lack of patriotism or disloyalty to the United States. Race even acts as a proxy for susceptibility to some diseases. Medical professionals so often diagnose schizophrenia in blacks, for example, that the association has come full circle ...


A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr. Jan 2004

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment ...


Racism's Past And Law's Future, Vivian Grosswald Curran Jan 2004

Racism's Past And Law's Future, Vivian Grosswald Curran

Articles

Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own ...