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Articles 1 - 20 of 20
Full-Text Articles in Law
Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus
Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus
Faculty Scholarship
For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …
Equal Protection Design Defects, Jonathan Feingold
Equal Protection Design Defects, Jonathan Feingold
Faculty Scholarship
One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — …
Fair And Impartial Adjudication, Thomas W. Merrill
Fair And Impartial Adjudication, Thomas W. Merrill
Faculty Scholarship
Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.
A dispute arising under …
Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter
Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter
Faculty Scholarship
In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical …
Do Religious Exemptions Save?, Maimon Schwarzschild
Do Religious Exemptions Save?, Maimon Schwarzschild
Faculty Scholarship
No abstract provided.
The Meming Of Substantive Due Process, Jamal Greene
The Meming Of Substantive Due Process, Jamal Greene
Faculty Scholarship
Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …
Understanding State Constitutions: Locke And Key, Gary S. Lawson
Understanding State Constitutions: Locke And Key, Gary S. Lawson
Faculty Scholarship
Steve Calabresi and Sofia Vickery have done a great service by uncovering the pre-Fourteenth Amendment case law in state courts interpreting and applying state constitutional provisions which contain "Lockean" language guaranteeing rights to life, liberty, property, safety, happiness, or some combination of those rights.' These cases are manifestly one of the keys to understanding the legal world in which the Fourteenth Amendment was crafted and ratified. It is instructive and fascinating to see the development and application of these Lockean provisions, whose influence 2 seems to have spread beyond this country. It is a pleasure and honor to be asked …
How Much Autonomy Do You Want?, Maimon Schwarzschild
How Much Autonomy Do You Want?, Maimon Schwarzschild
Faculty Scholarship
No abstract provided.
Racing Towards Colorblindness: Stereotype Threat And The Myth Of Meritocracy, Jonathan Feingold
Racing Towards Colorblindness: Stereotype Threat And The Myth Of Meritocracy, Jonathan Feingold
Faculty Scholarship
Education law and policy debates often focus on whether college and graduate school admissions offices should take race into account. Those who advocate for a strictly merits-based regime emphasize the importance of colorblindness. The call for colorblind admissions relies on the assumption that our current admissions criteria are fair measures, which accurately capture talent and ability. Recent social science research into standardized testing suggests that this is not the case.
Part I of this Article explores the psychological phenomenon of stereotype threat. Stereotype threat has been shown to detrimentally impact the performance of individuals from negatively stereotyped groups when performing …
Privileges Or Immunities, Philip A. Hamburger
Privileges Or Immunities, Philip A. Hamburger
Faculty Scholarship
What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about …
"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus
"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus
Faculty Scholarship
The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?
Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart
Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart
Faculty Scholarship
No abstract provided.
Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger
Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger
Faculty Scholarship
In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.
The first set of …
History As Ideology: Philip Hamburger's Separation Of Church And State, Kent Greenawalt
History As Ideology: Philip Hamburger's Separation Of Church And State, Kent Greenawalt
Faculty Scholarship
Here are three competing stories about how the idea of separation of church and state relates to the First Amendment clause that provides that "Congress shall make no law respecting an establishment of religion."
Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman
Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman
Faculty Scholarship
Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …
Congressional Power To Require Dna Testing, Larry Yackle
Congressional Power To Require Dna Testing, Larry Yackle
Faculty Scholarship
Many states fail to conduct, or even to permit, DNA testing of biological materials in circumstances in which the results might exonerate convicts under sentence of death. Senator Patrick Leahy thinks that Congress should enact a statute requiring states to provide for testing when it promises to reveal the truth. Leahy's idea is sensible as a matter of policy. I mean in this Article to argue that it is also constitutionally feasible.
A Worthy Champion For Fourteenth Amendment Rights: The United States In Parens Patriae, Larry Yackle
A Worthy Champion For Fourteenth Amendment Rights: The United States In Parens Patriae, Larry Yackle
Faculty Scholarship
When the Clinton Administration announced its intention to challenge Proposition 209, the new prohibition on affirmative action in California, the Justice Department declined to say whether the United States would formally intervene in the lawsuit already under way or merely file an amicus brief supporting the plaintiffs. Casual observers may have assumed that the Administration considered the form of its participation to raise further political and strategic considerations. That was undoubtedly true. It was also true, however, that Justice Department lawyers faced a legal question as well. According to the precedents on point, the United States required an authorizing statute …
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Faculty Scholarship
This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial …
Union Discrimination Checked: Ethridge V. Rhodes Rouses A Slumbering Giant Leading Article, Maria Marcus
Union Discrimination Checked: Ethridge V. Rhodes Rouses A Slumbering Giant Leading Article, Maria Marcus
Faculty Scholarship
This article considers case law relating to state actors and the racist practices of labor unions.
Constitutional Law, Kent Greenawalt
Constitutional Law, Kent Greenawalt
Faculty Scholarship
In the last thirty years, the equal protection clause has been largely transformed. Once a point of reference for courts striking down schemes of economic regulation which they regarded as unreasonable or unwise, it is now primarily a source of constitutional standards in the areas of civil rights, reapportionment, and rights of indigents accused of crime. These standards are of immense legal and social consequence. Since the landmark case of Brown v. Board of Educ. their development-characterized by Professor Philip B. Kurland as "the rise of egalitarianism" – has been paralleled by an increasing attention to the claims of equality …