Law Commons^™

Establishment Clause-Trophobia: Building A Framework For Escaping The Confines Of Domestic Church-State Jurisprudence, Jesse R. Merriam

Jesse R Merriam

Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont …

Toward Universalism: What The Ada Amendments Act Of 2008 Can And Can't Do For Disability Rights, Kevin M. Barry

Kevin M Barry

The social model of disability teaches that it is society’s treatment of impairments, not the impairments themselves, which limit people. But this model permits two different approaches to civil rights coverage: protect only some (the “minority group” approach) and protect all (the “universal” approach). While some scholars suggest that the ADA’s protected class of people with “disabilities” constituted an abandonment of the universal approach to coverage, this Article argues that the ADA’s three-pronged definition of “disability” embodied a tension between the minority group approach (in its first and second prongs) and the universal approach (in its “regarded as” prong). Although …

Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois

Goutam U Jois

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that might accomplish …

Nottebohm's Nightmare: Have We Exorcised The Ghosts Of Wwii Detention Programs Or Do They Still Haunt Guantanamo?, Cindy G. Buys

Cindy G. Buys

Frederich Nottebohm was the subject of a famous 1956 International Court of Justice (ICJ) decision that still has resonance today. The story of how Mr. Nottebohm, a wealthy German-born businessman living in Guatemala, came to be the subject of a case before the world court exposes a little known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were assumed …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii

Benjamin V Madison, III

This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.

The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Women’s health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women’s health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools. First, judges regularly—and often inaccurately—cite the theoretical availability of alternative reproductive health services as proof that women’s health will not suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.” Second, when alternatives are not available, …

Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione

John D. Castiglione

This Article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality into two organizing concepts: “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which he serves his sentence, and “quantitative proportionality,” which concerns the temporal length of the sentence imposed. I argue that the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment. The most significant feature of this model is an appreciation for the role of human …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Kimberly Yuracko

This paper seeks to explain a paradox: Why does Title VII’s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Jordan C. Budd

A FOURTH AMENDMENT FOR THE POOR ALONE:

SUBCONSTITUTIONAL STATUS AND THE MYTH OF THE INVIOLATE HOME

Jordan C. Budd

ABSTRACT

For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Jennifer S. Hendricks

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court’s long struggle with the desegregation of public schools. This Article examines the decision’s implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Settling Idea Cases: Making Up Is Hard To Do, Mark C. Weber

Mark C. Weber

Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues—and unique pitfalls—that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement …

A New Look At Section 504 And The Ada In Special Education Cases, Mark C. Weber

Mark C. Weber

School districts are finding fewer children eligible for services under the Individuals with Disabilities Education Act (IDEA). At the same time Congress has expanded the number of children who are protected by section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). These developments present the largely unexplored question of what obligations school districts owe children who have disabilities and are protected under section 504 and the ADA, but who are not eligible for services under IDEA. This article concludes that these children must be provided an education that meets their needs as adequately …

Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark C. Weber

Mark C. Weber

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education …

Unreasonable Accommodation And Due Hardship, Mark C. Weber

Mark C. Weber

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; …

Torch (January 2010), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Reflections On Substance And Form In The Civil Rights Classroom, Doni Gewirtzman

Saint Louis University Law Journal

No abstract provided.

Civil Rights And Federal Courts: Creating A Two-Course Sequence, Howard M. Wasserman

Saint Louis University Law Journal

No abstract provided.

Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins

Faculty Publications

No abstract provided.

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona

Articles in Law Reviews & Other Academic Journals

A substantive foreword to the symposium book for the Fourteenth Annual Latino/Latina Critical Legal Theory Scholarship Conference hosted by the American University Washington College of Law. The foreword includes information about the conference theme, its planning and execution, and includes excerpts from the presentations of a number of prominent plenary and keynote speakers, including Congresswoman Linda Sanchez (D-CA), Caroline Fredrickson (the executive director of the American Constitution Society for Law and Policy), Robert Raben (the president of the Raben Group), Jarrett Barrios (the president of the Gay and Lesbian Alliance Against Defamation), Prof. Jenny Rivera (professor of law and director …

A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo

All Faculty Scholarship

Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. At the same time, I was working on a project looking at barriers to health care for people with disabilities. Some of the barriers are well known, such as lower average incomes, disproportionate poverty, and issues with insurance coverage, to name just a few. I was looking at barriers of a different type, however: those posed by physically inaccessible facilities and equipment. This was a new area for me. Like …

Making Up Is Hard To Do: Race/Gender/Sexual Orientation In The Law School Classroom, Adrienne D. Davis, Robert S. Chang

Scholarship@WashULaw

This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered. Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching …

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

College of Law Faculty Scholarship

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …