Law Commons^™

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Tracy A. Thomas

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Michigan Law Review

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …

Restoring Congressional Intent And Protections Under The Americans With Disabilities Act: Hearing Before The S. Comm. On Health, Education, Labor, & Pensions, 110th Cong., Nov. 15, 2007 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Rodrigo's Corrido: Race, Postcolonial Theory, And U.S. Civil Rights, Richard Delgado

Vanderbilt Law Review

Richard Delgado enlists his alter ego, Rodrigo, to analyze Latino legal history and civil rights. Encountering "the Professor" after testifying at a hearing on an immigration bill, Rodrigo excitedly tells his old friend and mentor about a new body of writing he has come across. Postcolonial theory, which deals with issues such as cultural survival, resistance, and collaboration, can help move American civil rights scholarship beyond its current impasse. Over dinner, Rodrigo demonstrates how insights from these writers can enrich U.S. civil rights theory and practice. He also posits a new theory of Latinos' sociolegal construction, based on a triple …

Rendition To Torture: The Case Of Maher Arar: Hearing Before The H. Comm. On Foreign Affairs,, 110th Cong., Oct. 18, 2007 (Statement Of David D. Cole, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

The Ada Restoration Act Of 2007: Hearing Before The H. Subcomm. On Constitution, Civil Rights, And Civil Liberties Of The H. Comm. On The Judiciary, 110th Cong., Oct. 4, 2007 (Statement Of Statement Of Chai R. Feldblum, Prof. Of Law, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Tribute In Honor Of Oliver W. Hill, Esq., Jonathan K. Stubbs

Law Faculty Publications

Memorial tribute to Oliver W. Hill, pioneer Richmond civil rights attorney.

Advancing Civil Rights, The Next Generation: The Genetic Information Nondiscrimination Act Of 2007 And Beyond, Morse Tan

Morse Tan Esq.

On the leading edge of civil rights law and bioethics/healthcare law, this Article analyzes the Genetic Information Nondiscrimination Act (GINA) of 2007, which would extend important protection against discrimination in health insurance and employment. GINA would also bolster genetic research by freeing research subjects from the threat of genetic discrimination. This Article demonstrates how GINA would further protect this society against the rising dangers of genetic discrimination beyond already existing federal and state law.

Social Justice And The Law, Elaine R. Jones

University of Richmond Law Review

No abstract provided.

The Unfinished Business Of American Democracy, Ezequiel Lugo

Ezequiel Lugo

For the last two decades, U.S. courts have been using customary international law (CIL) when dealing with human rights claims. Recently, the Supreme Court has used international law to decide cases involving constitutional rights. However, U.S. courts have not used CIL to address the right to vote, one of the most fundamental human rights. This Article surveys evidence of the right to vote as CIL and concludes that the right to vote has become a norm of CIL. It cannot, however, be directly incorporated into U.S. law because of previous judicial decisions. Nevertheless, the U.S. can comply with this norm …

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Property Outlaws, Eduardo M. Peñalver, Sonia K. Katyal

Cornell Law Faculty Publications

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …

Legal Impediments To Service: Women In The Military And The Rule Of Law, Linda Strite Murnane

Duke Journal of Gender Law & Policy

Some of those who served did so by disguising themselves as men.6 A number of women had served as spies, as was the case of Rose O'Neal Greenhow, who was arrested and imprisoned for supplying the Confederate Army with information, and Pauline Cushman, who was sentenced to be executed as a Union spy during the War Between the States.7 The first woman to receive the Congressional Medal of Honor, Dr. Mary Walker, provided her services as a doctor free of charge to Union forces in Virginia and Tennessee.8 She had asked the Union Army to hire her as a doctor, …

“But Some Of [Them] Are Brave”: Identity Performance, The Military, And The Dangers Of An Integration Success Story, Mario L. Barnes

Duke Journal of Gender Law & Policy

By dislodging the story and acknowledging the effects of unconscious bias, the Armed Forces will be better able to address the ways in which some use identity-race in particular-as a tool to stigmatize, dishonor, and disfavor group members based on their perceived characteristics.11 As it currently stands, the operation of unconscious biases interacts with Armed Forces' institutional policy choices-such as a commitment to formal equality achieved through race- and gender-neutral regulations-and organizational social norms to negatively shape the work "performance"12 of women and minority service members.

Deceptive Appearances: Judges, Cognitive Bias, And Dress Codes, Marybeth Herald

Marybeth Herald

Although it is no longer legal to deny women the right to work simply because they are women, an employer can still require women conform to gender-based appearance norms in order to keep their jobs. In some industries, lipstick, foundation, mascara, and blush remain essential components of a woman's professional uniform. In these industries, men are spared the obligation of cosmetic upkeep, because only women must don face-paint to appear comfortably recognizable to customers.

Why this differential dress-code is not considered discrimination on the basis of sex under Title VII is the mystery. The textual force of anti-discrimination law would …

Unlawful Enemy Combatants: Hearing Before The S. Comm. On Armed Services, 110th Cong., Apr. 26, 2007 (Statement Of Neal Kumar Katyal, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

Majority Politics And Race Based Remedies, Darren Lenard Hutchinson

UF Law Faculty Publications

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Military Commissions Act And The Continued Use Of Guantanamo Bay As A Detention Facility: Hearing Before The H. Comm. On Armed Services, 110th Cong., Mar. 29, 2007 (Statement Of Professor Neal Kumar Katyal, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

A Welfare State Of Civil Rights: The Triumph Of The Therapeutic In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

This Article examines the influence of the therapeutic culture on the modern constitutional law of civil rights. The therapeutic culture is defined as one in which the central moral question is individual fulfillment. That culture has sprung up to replace older cultures such as Protestantism and classical republicanism, which are no longer capable of appealing to a nation as diverse as the United States. Instead of asking whether individuals or the nation conform to some external moral system, the therapeutic culture asks whether individuals are happy or fulfilled. This Article demonstrates that the therapeutic culture has had a significant effect …

The Fulton County Jail Project: A Pro Bono Clinical View From The Cellblocks, Mark J. Kadish

Georgia State University Law Review

No abstract provided.

Student Body Diversity: A View From The Trenches, Gail S. Stephenson

Gail S. Stephenson

Although educators have stressed the value of classroom diversity for 150 years, American law schools are becoming less diverse. Total minority enrollment in ABA-approved law schools was down for the academic year 2005-2006, and the number of African Americans enrolled has reached its lowest point since 1990-1991. The ABA revised Standard 211 (renumbered 212) to require law schools to “demonstrate by concrete action” their commitment to diversity. This revision has been quite controversial, drawing opposition from those who do not believe that diversity is important.

The author, who teaches at a historically black law school with a fairly even mix …

The Mythic 43 Million Americans With Disabilities, Ruth Colker

Ruth Colker

Although Congress stated in its first statutory finding that it intended the Americans with Disabilities Act to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, by using Census data, this article demonstrates that the ADA covers virtually no Americans who are both disabled and able to work, eviscerating the employment discrimination provisions of the ADA.

This article places that problem in the larger context of the Court undermining Congress’ efforts to protect discrete and insular minorities from employment discrimination. Although …

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

No abstract provided.

Defining Our Freedom, Minnesota State University, Mankato

Civil Rights

Bibliography and photographs of a display of government documents from Minnesota State University, Mankato.

Coalitions And Collective Memories: A Search For Common Ground, Ediberto Román

Faculty Publications

The following pages explore this contemporary debate, and ultimately sides in favor of inter-minority group coalitions, as they may be effective democratic vehicles towards social change. Part II examines the argument in favor of inter-minority group coalitions. Part III addresses the challenges to those positions, including the arguments posed by leading skeptics. Finally, Part IV rejects the cynicism associated with coalitions and proposes a concrete point of commonality that may help forge much needed common ground for many racial and ethnic outsider groups.

Educational Athletic Employment And Civil Rights: Examining Discrimination Based On Disability, Age, And Race, Diane Heckman

Marquette Sports Law Review

No abstract provided.

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 …

Private Employer Dress Codes And Laws Against Sexual Orientation And Gender Expression Discrimination: The Normative Stereotype Exception Should Not Survive, Ben Kleinman

Ben Kleinman-Green

In this paper I attempted to do two things. First, to remind readers that current exceptions to anti-discrimination law as applied to dress codes exist because courts find sexual orientation and gender to be outside the scope of Title VII and because courts have ruled that many dress codes that distinguish between men and women do not do so in an objectively harmful way. Second, to show that laws specifically prohibiting sexual orientation and gender discrimination effectively vitiate the ability of the courts to apply normative stereotype exceptions.