Law Commons^™

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 …

Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).

Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …

Lessons From The World Conference Against Racism, Peggy Maisel

Faculty Scholarship

It is difficult to get people to remember, let alone focus on the accomplishments and ongoing challenges that emerged during the United Nations sponsored World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (the WCAR) held just over a year ago in Durban, South Africa. The reason is simple: that conference ended on September 8, 2001, and what we remember about that period is now permanently obscured by what happened just three short days later. But the events of September 11 make it more imperative than ever that we address the evils of racism, racial discrimination, and xenophobia. It …

The Complex Uses Of Sexual Orientation In Criminal Court, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Times may or may not be changing for gay people in the criminal justice system--and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about.

Signs of positive change include the recent high profile Matthew Shepard and Diane Whipple cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country. It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, …

Setting The Record Straight: A Proposal For Handling Prosecutorial Appeals To Racial, Ethnic Or Gender Prejudice During Trial, Andrea Lyon

Law Faculty Publications

No abstract provided.

Litigating Ethics Issues In Land Use: 2000 Trends And Decisions, Patricia E. Salkin

Scholarly Works

No abstract provided.

Thinking Critically About Equality: Government Can Make Us Equal, Robert L. Hayman, Nancy Levit

Faculty Works

As kids we called it having to use the old noodle: needing to think real hard about something that was real hard to think about. It was the kind of thinking that would cause your face to get all scrunched up, and if you didn't stop or if someone didn't stop you - it would eventually make your head hurt. The expression came from our families when we figured something out: that's using your old noodle, they'd tell us. The noodle we eventually understood to be our brains, which, we reckon, do look something like noodles, though we were quite …

Judicial Review Of Initiatives And Referendums In Which Majorities Vote On Minorities’ Citizenship, Sylvia R. Lazos

Scholarly Works

In this Article, Professor Lazos examines initiatives and referendums in which a majority is in a position to vote on the content of a minority's democratic civic standing. Case law fails to set forth a single test for judicial review; consequently, doctrinal and theoretical coherence in this area is nonexistent. Professor Lazos proposes a test that takes into account social dynamics and focuses on the impact of these measures. First, she examines outcomes over the last three decades of approximately eighty such initiatives and referendums, from the anti-integration movement of the sixties to today's ideological and cultural versions, such as …

Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin

Articles & Chapters

Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and …

Ethical Campaigning For The Judiciary, Vincent R. Johnson

Faculty Articles

No abstract provided.

Kentucky Law Survey: Evidence, Robert G. Lawson

Law Faculty Scholarly Articles

This Article is a survey of recent developments in evidence law. It focuses on specific issues, including statements for medical treatment or diagnosis, tape recordings, "probativeness" versus "prejudice," and others.

The "Burden" Of Proof In Federal Habeas Litigation, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

Scholarly Works

Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Access To Health Care And Equal Protection Of The Law: The Need For A New Heightened Scrutiny, Wendy K. Mariner

Faculty Scholarship

Proposals to reduce national expenditures for health care under Medicare and other programs raise questions about the limits on legislative power to distribute health care benefits. The constitutional guarantee of equal protection has been a weak source of protection for the sick, largely because they fail to qualify for special scrutiny under traditional equal protection analysis. Recent decisions of the United States Supreme Court suggest that the Justices seek a newer, more flexible approach to reviewing claims of unequal protection. This Article examines the application of the equal protection guarantee to health-related claims. It argues that traditional equal protection analysis …

Black Innocence And The White Jury, Sheri Johnson

Cornell Law Faculty Publications

Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that …

Disqualification Of Judges By Prejudice, Edson R. Sunderland

Articles

Under the provisions of Section 21 of the Federal Judicial Code, Victor Berger and others, who had been indicted under the Espionage Act in the Northern District of Illinois, filed an affidavit charging Judge Landis with personal bias and prejudice against them as German-Americans, and moved for the assignment of another judge to preside at their trial. The motion was overruled by Judge Landis, and he himself presided at the trial, and the defendants were convicted and sentenced. The Supreme Court of the United States, to which the matter came on certificate, held, three justices dissenting, that Judge Landis could …