Law Commons^™

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein

Jeffrey J. Rachlinski

The election of Barack Obama marks a significant milestone for race relations in our nation—on this much our debaters agree. The meaning of this milestone for the future of race-based policies, such as affirmative action and antidiscrimination laws, is where they disagree. Dr. Gregory Parks and Professor Jeffrey Rachlinski argue that any announcement of the arrival of a “post-racial America” is premature, as the presidential campaign actually revealed an implicit racial bias present in “most white adult brains.” The stereotypical criticisms of Obama, explicit racial references by supporters of opposing candidates, and “deeply racially stratified voting” were, in fact, “reflection[s] …

After Shelby County: Getting Section 2 Of The Vra To Do The Work Of Section 5, Christopher Elmendorf, Douglas Spencer

Christopher S. Elmendorf

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

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 …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …