Law Commons^™

Brown And The Colorblind Constitution, Christopher W. Schmidt

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This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …

Freedom Comes Only From The Law': The Debate Over Law's Capacity And The Making Of Brown V. Board Of Education, Christopher W. Schmidt

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From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating …

Is America Finally Ready To Elect A Black President?, F. Michael Higginbotham

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In its 220 year history, America has yet to elect a president who is not white. In the 2008 presidential election, Barack Obama, the only black member of the United States Senate, has received the nomination of the Democratic Party, the first minority candidate to ever receive a major party nomination. This article argues that Americans must not let fear or prejudice squander this historic opportunity.

Protecting The Right To Vote: Oversight Of The Department Of Justice's Preparations For The 2008 Election - Statement Of Gilda R. Daniels Before The Senate Judiciary Committee, September 9, 2008, Gilda R. Daniels

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In 2000, we witnessed faulty voting machines with hanging chads and dimpled ballots. We also experienced error-filled purges and voter intimidation in minority neighborhoods. Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, voting irregularities and election protection and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act and the National Voter Registration Act, (NVRA), problems persist in the operation of our …

Lessons Learned From The 2004 Presidential Election: Testimony Of Gilda R. Daniels Before The House Judiciary Subcommittee On The Constitution, Civil Rights And Civil Liberties, July 24, 2008, Gilda R. Daniels

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Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, "voting irregularities" and "election protection" and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.

What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. …

The Immigration Paradox: Alien Workers And Distributive Justice, Howard F. Chang

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The immigration of relatively unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal ideals. These ideals would treat these workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of relatively unskilled workers …

Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee

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No abstract provided.

The Discriminating Mind: Define It, Prove It, Amy L. Wax

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Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect welldocumented “supply side” disparities between groups in human capital development, qualifications, and behavior. These patterns are not most …

Public Employee Speech, Categorical Balancing And Section 1983: A Critique Of Garcetti V. Ceballos, Sheldon Nahmod

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No abstract provided.

The Gentleman From Hagerstown: How Maryland Jews Won The Right To Vote, Kenneth Lasson

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This article discusses the early history of Maryland in the context of religious discrimination, specifically in reference to discrimination against those of the Jewish faith, even though the state "was founded as a haven of religious liberty and beacon of toleration." It also highlights a member of the Maryland House of Delegates, Thomas Kennedy, a Christian, as being the leader of the movement to ultimately correct this injustice. Part of the problem were clauses in the state's constitution requiring officeholders to be Christians. Kennedy lost his seat in the House, but didn't give up the battle. Ha had tried several …

Engines Of Inequality: Class, Race, And Family Structure, Amy L. Wax

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The past 30 years have witnessed a dramatic divergence in family structure by social class, income, education, and race. This article reviews the data on these trends, explores their significance, and assesses social scientists’ recent attempts to explain them. The article concludes that society-wide changes in economic conditions or social expectations cannot account for these patterns. Rather, for reasons that are poorly understood, cultural disparities have emerged by class and race in attitudes and behaviors surrounding family, sexuality, and reproduction. These disparities will likely fuel social and economic inequality and contribute to disparities in children’s life prospects for decades to …

A Vote Delayed Is A Vote Denied: A Proactive Approach To Eliminating Election Administration Legislation That Disenfranchises Unwanted Voters, Gilda R. Daniels

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In an effort to determine voter eligibility and access to the voting booth, our democratic system has allowed political forces, to develop laws that would meet their aims of either granting or denying access to the franchise. Caught in this web of regulations, practices and procedures is the "unwanted voter" - the disabled, elderly, poor, and minority voter. New millennium models of exclusion, such as overly restrictive identification requirements, unwarranted voter purges, restrictive voter registration rules, increasing costs for underlying documents to support citizenship and eligibility for voting, are creating a caste system in the electoral process. The practice of …

Academic Freedom And The Post-Garcetti Blues, Sheldon Nahmod

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No abstract provided.

Reconstructing The Race-Sex Analogy, Serena Mayeri

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No abstract provided.

Torture And The Biopolitics Of Race, Dorothy E. Roberts

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No abstract provided.

Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts

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No abstract provided.

A Closing Keynote: A Comment On Mass Incarceration In The United States, David Rudovsky

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No abstract provided.

The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang

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In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …

Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii

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Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.

The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick

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Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting …