Law Commons^™

Lawyers And Social Justice, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Rights And Irresponsibility, Linda C. Mcclain

Faculty Scholarship

There can be little doubt that a marked discontent with rights and "rights talk" is in the air, as are calls for a turn to responsibility and "responsibility talk."' In a broad range of contemporary discourses, rights are juxtaposed against responsibility as if the two were inversely or even perversely related to one another. Indeed, rights are said to license irresponsibility. Academics, politicians, and the popular media claim that Americans increasingly invoke rights talk and shrink from responsibility talk and that as a result America suffers from an explosion of frivolous assertions of rights' and a breakdown of responsible conduct. …

Hospitalized Patients And The Right To Sexual Interaction: Beyond The Last Frontier, Michael L. Perlin

Articles & Chapters

No abstract provided.

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Scholarly Works

No abstract provided.

Beyond The Civil Rights Agenda For Blacks: Principles For The Pursuit Of Economic And Community Development, James Jennings

William Monroe Trotter Institute Publications

Over the last several decades, this country has experimented with economic development and social welfare strategies and programs molded by liberals and conservatives, and embodied in the policies and politics of both Republicans and Democrats at the national level. However, given the continuing social and economic crisis, and gaps between African Americans and whites, it seems the approaches of both liberals and conservatives have been inadequate. Due to the failure of current policy strategies, in terms of black living conditions, debate in the black community should move from disagreements between liberals and conservatives, or Democrats and Republicans, towards the question …

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …

Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg

Faculty Scholarship

Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …

Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg

Faculty Scholarship

We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.

This nationwide …

Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder

Journal Articles

American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.

Bifurcation Of Civil Rights Defendants: Undermining Monell In Police Brutality Cases, Douglas L. Colbert

Faculty Scholarship

No abstract provided.

The Civil Rights Act Of 1991: A “Quota Bill,” A Codification Of Griggs, A Partial Return To Wards Cove, Or All Of The Above?, Kingsley R. Browne

Law Faculty Research Publications

No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

Scholarly Works

In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.

The Right Of The People To Be Secure, Ronald J. Bacigal

Law Faculty Publications

Part I of this Article defines searches and seizures of property and person, discussing the Supreme Court's initially broad interpretation of the Fourth Amendment and its subsequent narrowing in later decisions. Part II discusses several police "chase cases" leading up to the elimination of accidental and attempted seizures from Fourth Amendment protection in Brower v. County of Inyo and California v. Hodari D. Part Ill analyzes the Brower decision and its effect on accidental seizures, concluding that the analysis set forth therein should be abolished and advocating an alternate test. Part IV confronts the Court's elimination of attempted seizures from …

A Tribute To Thurgood Marshall, Peter N. Simon

Publications

No abstract provided.

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

Scholarly Works

Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Transformations In Supreme Court Thought: The Irresistible Force (Federal Indian Law & Policy) Meets The Movable Object (American Indian Tribal Status), David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This article is a content analysis examination of 107 federal court cases involving American Indian tribal sovereignty and federal plenary power rendered between 1870 and 1921. Our focus, however, is the U.S. Supreme Court's Indian Law jurisprudence; thus ninety of the cases analyzed were Supreme Court opinions. The cases seemingly entail two separate braces of opinions. One brace included decisions which affirmed tribal sovereignty. The other brace entailed cases which negatively affected tribal sovereignty. These negative decisions generally relied on doctrines such as plenary power, the political question doctrine, or the so- called “guardian-ward” relationship. We argue that the Supreme …

Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger

Faculty Publications

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

UF Law Faculty Publications

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

The Supreme Court's Narrow View On Civil Rights, Jack M. Beermann

Faculty Scholarship

The right to choose abortion, although recently significantly curtailed from its original scope,' is a federally protected liberty interest of women, and is at least protected against the imposition of "undue burdens" by state and local government.² Some of the most serious threats to women's ability to choose abortion have come not from government regulation, but from private, national, organized efforts to prevent abortions. In addition to seeking change through the political system, some of these organizations, most notably Operation Rescue, have focused on the providers of abortion, and have attempted to prevent abortions by forcibly closing abortion clinics …

Diversity, Mulitculturalism, And Affirmative Action: Duke, The Nas, And Apartheid, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Justice For Rodney King, Scott C. Burrell, Alan R. Dial, Thomas W. Mitchell

Faculty Scholarship

May 1992 letter from three Howard University School of Law students to President George H.W. Bush advocating that the United States Department of Justice invoke the Petite Policy to initiate a criminal action against the Los Angeles Police Department police officers responsible for brutally beating Rodney King despite the fact that these offers had been acquitted in a California state court. The letter, which was read in front of the White House by Thomas Mitchell to hundreds of people who had gathered to urge the federal government to take action, sets forth a clear legal basis to permit the Justice …

A Civil Rights Agenda For The Year 2000: Confessions Of An Identity Politician, Fran Ansley

Scholarly Works

No abstract provided.

Civil Rights Plaintiffs And The Proposed Revision Of Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment of Federal Rule of Civil Procedure 11 has been the most controversial revision of the Federal Rules in their fifty-five-year history, and Rule l l's implementation has been most controversial in civil rights cases. Rule ll's application has disadvantaged civil rights plaintiffs more than any other category of civil litigant. Courts have found civil rights plaintiffs in violation of Rule 11 at a higher rate than other types of plaintiffs and have imposed substantial sanctions on them. Civil rights plaintiffs have been required to participate in expensive, unnecessary satellite litigation involving this provision. Indeed, a new study …

Bray V. Alexandria Women's Health Clinic: The Supreme Court's Next Opportunity To Unsettle Civil Rights Law, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

The legislative history of the Ku Klux Klan Act of 1871 is scrutinized to determine the factual predicate that led to the enactment of 42 U.S.C. § 1985(3) and the classes Congress sought to protect under its provisions. The legislative history is also analyzed to determine which rights Congress sought to protect in § 1985(3). Part III discusses the Supreme Court's misinterpretation of the statute and attempts to provide guidance as to the proper outcome in Bray.

Operation Rescue - Was The Justice Dept. Right To Intervene In Wichita?, Gary S. Lawson, Celeste Lacy Davis, Eve W. Paul

Faculty Scholarship

Discussion of Operation Rescue attempt to shut down abortion clinic in Wichita, KS in August 1991, and ensuing decision of U.S. District Judge Patrick Kelly, as well as intervention of Justice Department. A debate-style article with "pro" side written by Gary Lawson and "con" side written by C.L. Davis & E.W. Paul.

The Americans With Disabilities Act: Analysis And Implications Of A Second-Generation Civil Rights Statute, Robert L. Burgdorf Jr.

Journal Articles

Martin Luther King, Jr. once wrote that our nation's civil rights laws were a "sparse and insufficient collection of statutes ... barely a naked framework."' On their faces, many federal civil rights statutes constitute little more than broad directives that "Thou shalt not discriminate." Broadly worded statements outlawing discrimination were the optimal approach to statutory draftsmanship in light of the controversial nature of the civil rights laws passed in the 1960s and 1970s. The drafters of these statutes needed to craft language that would be palatable to a majority of the members of Congress while still having a meaningful impact …

Thurgood Marshall And The Administrative State, Jonathan Weinberg

Law Faculty Research Publications

No abstract provided.

Exporting The American Bill Of Rights: The Lesson From Romania, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.