Law Commons^™

Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles

Articles

No abstract provided.

Racism As 'The National Crucial Sin': Theology And Derrick Bell, George H. Taylor

Articles

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell's thesis of racism's permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr's paradox that social action is both necessary and meaningful …

Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes

Articles

Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and …

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, but …

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah Brake

Articles

This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term "leveling down" refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that …

Revisiting Title Ix's Feminist Legacy: Moving Beyond The Three-Part Test, Deborah Brake

Articles

This essay addresses three issues surrounding Title IX's application to women's sports that have been largely eclipsed by the recent controversy over Title IX's three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men's sports as a remedy to discrimination against women; and the role of revenue and massive spending on men's elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is needed to fulfill Title IX's promise.