Law Commons^™

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Judith L Ritter

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts to recognize …

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron

Charles H. Baron

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Whither Affirmative Action: A Look At Recent Court Decisions, Tanya M. Marcum J.D.

Tanya M. Marcum J.D.

The concept of “affirmative action” has held a place in the legal system for well over a thousand years. However, the term “affirmative action” has recently been used and applied in varying ways, causing confusion and outright hostility throughout our nation. The concept of “affirmative action” the term “affirmative action” and the practice of “affirmative action” are still with us giving rise to continuing legal attention and political focus. This article will explore the history of and uses of affirmative action, examine the recent cases before the courts, and finally, make predictions as to the future of affirmative action and …

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose

Meg Penrose

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Article: No Child Left Behind: Why Race-Based Achievement Goals Violate The Equal Protection Clause, Ayriel Bland

Ayriel Bland

In 2002, No Child Left Behind (NCLB) was passed under President George W. Bush with the goal of increasing academic proficiency for all children in the United States by 2014. Yet, many states struggled to meet this goal and the Secretary of the U.S. Department of Education allowed states to apply for waivers and bypass the 2014 deadline. Some states implemented waivers though race-based achievement standards. For example, Florida in October 2012, established that by 2018, 74 percent of African American and 81 percent of Hispanic students had to be proficient in math and reading, in comparison to 88 percent …

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand

Michael A Helfand

No abstract provided.

Testimony Before The U.S. Commission On Civil Rights, Briefing On Peaceful Coexistence: Reconciling Non-Discrimination Principles With Civil Liberties, Michael A. Helfand

Michael A Helfand

No abstract provided.

Dancing Around Equality: Public Schools And Prejudice At The Prom, Jeffrey S. Thomas

Jeffrey S. Thomas

No abstract provided.

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Manufacturing Moral Panic As Political Distraction: An Empirical And Social Theoretical Analysis Of Domas, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. After concluding that they do not, the article analyzes what variables are, in fact, correlated with family stability. Specifically, the relationships between families below the poverty line, men and women married three or more times, religiosity, percent conservative versus liberal in a state, disposable income, percent with bachelor’s degree, and median age of first marriage, and marriage and divorce trends is fully explored. Next, the article applies the sociological concepts of moral entrepreneurism, which …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Originalism & Same-Sex Marriage, Grant R. Darwin

Grant R Darwin

Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy question for originalism; it is clearly not within the Constitution’s purview. The purpose of this Article is to challenge that claim by illustrating how an originalist could find that denying same-sex marriage contravenes the original public meaning of the Fourteenth Amendment. It seeks first to ascertain the original public meaning of Section One of the Fourteenth Amendment. The Article finds that Section One may serve as a prohibition on systems of caste and class legislation or alternatively as a ban on partial or special class legislation …

I Wanna Marry You: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. The article examines marriage and divorce changes in trends for every state over the last ten years for which data is available comparing changes, if any, before and after a DOMA was enacted or same sex marriage was permitted. After concluding that DOMA does not play a role in either divorce or marriage changes in trends or rates, the article explores what variables are, in fact, correlated with family stability. Given that poverty, religiosity, …

A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand

Michael A Helfand

This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because …

What Is A "Church"?: Implied Consent And The Contraception Mandate, Michael Helfand

Michael A Helfand

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer

Christopher S. Elmendorf

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the …

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

More than four decades ago, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964’s prohibition on racial discrimination in employment is properly construed to forbid “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” that nevertheless “operate as ‘built-in headwinds’ for minority groups . . . that are unrelated to testing job capability.” In the Civil Rights Act of 1991, Congress codified liability for cases in which an employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

Sheldon Nahmod

No abstract provided.

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts

Tina F Botts

Misunderstanding the concept of race as based in biology is the root error of Professor Nancy Leong's recommendation of a switch to "perceived race" in antidiscrimination law in order to protect multiracial persons from illegal racial discrimination. Once race is understood as socio-historically constructed and context-dependent rather than as rooted in biology, antidiscrimination law need only add multiracial persons to the categories of specially protected groups in order to protect multiracial persons from illegal discrimination.

Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand

Michael A Helfand

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes …