Law Commons^™

Ruling Out The Rule Of Law, Kim Forde-Mazrui

Kim Forde-Mazrui

Although criminal justice scholars continue to debate the overall value of the void-for-vagueness doctrine, broad consensus prevails that requiring crimes to be defined in specific terms reduces law enforcement discretion. A few scholars have questioned this assumption, but the conventional view remains dominant. This Article intends to resolve the question whether the void-for-vagueness doctrine really reduces police discretion. It focuses on traffic enforcement, a context in which laws are both specific and subject to discretionary enforcement. The Article concludes that specific rules do not constrain discretion unless judicial limits are placed either on the scope of activities that may be …

Equal Access To Public Education: An Examination Of The State Constitutional And Statutory Rights Of Nonpublic Students To Participate In Public School Programs On A Part-Time Basis In North Carolina And Across The Nation, John Plecnik

Law Faculty Articles and Essays

This article argues that private and homeschool students in North Carolina have a state constitutional and statutory right to participate in public school programs on a part-time basis. This right is based on the North Carolina Constitution's explicit acknowledgment of nonpublic education and guarantees of equal protection and equal access to public schools. This right is also based on state statutes that mirror the wording and spirit of the state constitution's guarantees. Since the North Carolina Supreme Court has held that equal access to public schools is a fundamental right under the state constitution, this right can only be restricted …

Transforming Teenagers Into Oral Sex Felons: The Persistence Of The "Crime Against Nature" After Lawrence V. Texas, Michael K. Curtis

Michael K. Curtis

Although Lawrence v. Texas held oral and anal sex between consenting adults in private is generally constitutionally protected, the "crime against nature" continues to be applied to teenagers who would otherwise be guity of no crime or a lesser crime--had they engaged in vagainal intercourse. That is the case, for example, in recent North Carolina and Georgia cases discussed in this article. The distinction between oral and vaginal sex between minors having voluntary sex with each other is irrational and vioaltes equal protection. The argument is not that teenagers have a constitutional right to privacy to have sex with each …

Transforming Teenagers Into Oral Sex Felons, Michael K. Curtis, Shannon D. Gilreath

Michael K. Curtis

The "crime against nature" continues to be applied to punish teenagers who would otherwise be guilty of no crime (for vaginal intercourse) or a lesser crime (for vaginal intercourse.) Though the most recent examples are from North Carolina and Georgia, the issue of treating teenagers as oral sex felons is a potential problem in any state that maintains a "crime against nature" statute on the books, as a number do. The distinction between oral and vaginal sex between minors having voluntary sex with each other is irrational and violates equal protection. The claim is not that minors have a constitutional …

Rationalizing Away Political Powerlessness: Equal Protection Analysis Of Laws Classifying Gays And Lesbians, Emily K. Baxter

Missouri Law Review

In November of 2000, Nebraska joined a growing number of states that have banned same sex marriage by passing a constitutional amendment prohibiting the recognition of same sex marriage, civil unions, and domestic partnerships. Unlike legislation and amendments in other states which either simply define marriage as a union between a man and a woman or refuse to recognize same sex marriage, the amendment to the Nebraska constitution is a broad prohibition on the recognition of any partnership rights for same sex couples. The United States Supreme Court has yet to establish whether or not gays and lesbians should be …

In Defense Of The Roosevelt Court, Wilson Ray Huhn

Florida A & M University Law Review

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose--the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build. Two justices presently serving on the Supreme Court--Justice Antonin Scalia and …

What's Love Got To Do With It?: The Corporations Model Of Marriage In The Same-Sex Marriage Debate, Jeremiah A. Ho

Faculty Publications

The time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law. When that time comes, property rights and perhaps even mutual obligations of support may well be held to flow from such relationships. But in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as "marriages". At most, they would become personal relationships having some, but not all, of the legal attributes of marriage. And even when and if …

Racial Adjudication, Andrew Carlon

Andrew Carlon

In oral arguments for the recent voluntary integration cases, Justice Kennedy raised for the first time a question about the limits of the Court's colorblind jurisprudence which has troubled legal scholars for the past decade: If we make no distinction between benign and discriminatory racial classifications, and none between facially race-neutral policies adopted with a racially discriminatory purpose and those where racial classifications are patent, then may we still take facially race-neutral measures to accomplish benign - but racial - goals? If using race to integrate and to segregate are the same, then why are race-neutral means to achieve each …

Adult Rights As The Achilles’ Heel Of The Best Interests Standard: Lessons In Family Law From Across The Pond, Margaret Ryznar

Margaret Ryznar

Family law litigants have long searched for permutations of constitutional principles that gain access to federal courts. Typically, such litigants have been most successful with due process and equal protection arguments—even at the expense of the venerable “best interests of the child” standard in child-related cases. One legal system currently wrestling with this familiar clash between the interests of children and adults is that of England—where adults are armed with the rights granted by the Human Rights Act 1998, while children’s interests are given preference in an earlier act, the Children Act 1989. England’s strategy in dealing with this conflict …

Essentially A Mother, Jennifer S. Hendricks

Publications

This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent.

The article first discusses the "unwed father cases." Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological …

Regulating White Desire, Reginald Oh

Law Faculty Articles and Essays

This Article contends that segregationist justifications for miscegenation and segregation laws shows that those laws effectively imposed a legal duty on whites to adhere to cultural norms of endogamy. Dominant social groups enforce rules of endogamy⁠—the cultural practice of encouraging people to marry within their own social group⁠—to protect the dominant status of their individual members and of the social group in general. Thus, laws prohibiting interracial marriages regulated white desire in order to protect the dominant status of whites as a group. The Loving Court, therefore, ultimately was correct in declaring that miscegenation laws denied blacks equal protection.

Part …

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

Articles

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal - called the Michigan Civil Rights Initiative (MCRI) - that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a …

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of broken windows policing in 1994 – nicely documented in this issue in Andrew Golub, Bruce Johnson, and Eloise Dunlap's article (2007) – is almost enough to make an outside observer ask: Who thought of this idea in the first place? And what were they smoking?

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …