Law Commons^™

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

Articles

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

The Door Has A Tendency To Swing Shut: The Saga Of Aboriginal Peoples' Equality Claims, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper tracks the history of Aboriginal peoples' equality complaints against the state. From the time Aboriginal people started to bring discrimination complaints before the courts, there have been significant obstacles that have operated to effectively — and sometimes even explicitly — prevent Aboriginal peoples from advancing pressing discrimination complaints against governments. Although there have been changes made in the law over time to attempt to eliminate such barriers, what we see is a pattern where new obstacles crop up to replace the old ones. Over and over, Aboriginal peoples see the door to equality open up only to have …

Addressing Cultural Bias In The Legal Profession, Debra Chopp

Articles

Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural bias in the delivery of legal services. Lawyers routinely represent clients with backgrounds and experiences that are vastly different from their own, and the fact of these differences can impede understanding, communication, and, ultimately, effective representation. While other professions, such as medicine and social work, have adopted …

Trump’S Executive Order Barring Refugees Is Unconstitutional: Order Expresses A Religious Preference In Violation Of The Establishment Clause, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

NEW YORK, January, 30 2017 — Columbia Law School’s Public Rights/Private Conscience Project joins with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s recent Executive Order writing a religious preference into U.S. policy is unconstitutional.

Race, Redistricting, And The Manufactured Conundrum, Justin Levitt

Loyola of Los Angeles Law Review

Race and redistricting each lie at the core of recurring contests over American political identity. It is therefore perhaps no surprise that cases concerning the role of race in redistricting have offered the Supreme Court a steady diet. In 2017, for the fourth time in four decades, the Court struck North Carolina districts based on the legislature’s misuse of race. And the North Carolina legislature, proclaiming the whole business too complicated, simply threw up its hands.

This petulance is likely performance. The law of race and redistricting is resistant to shortcuts and stereotypes, but that does not render it intractable, …

Toward Systemic Equality: Reinvigorating A Progressive Application Of The Disparate Impact Doctrine, Justin D. Cummins, Beth Belle Isle

Mitchell Hamline Law Review

No abstract provided.

Private Right Of Action Jurisprudence In Healthcare Discrimination Cases, Allison M. Tinsey

Law Student Publications

Section 1557 of the Affordable Care Act provides that entities covered by the Act which receive federal funds are prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. But since the provision’s enactment and the U.S. Department of Health and Human Services’ promulgation of a regulation creating a private right of action for alleged discrimination under the Act, courts have disagreed on whether a private right of action exists to enforce Section 1557. This Comment summarizes the courts’ confusion in applying the holding of Alexander v. Sandoval and Chevron deference to the nondiscrimination provision …

No Un Jurado De Mis Pares: Juror Exclusion Of Limited English Proficient Speakers., Michael Mccann

The Scholar: St. Mary's Law Review on Race and Social Justice

In the context of fulfilling civic duties as a citizen, accessibility to language assistance programs ensures every individual, including those with limited English proficiency (LEP), is afforded the opportunity to exercise their fundamental rights. Preservation of the integrity of the justice system must be provided in a comprehensive manner, not merely in one part of the legal proceedings or isolated to one part of the courthouse. LEP citizens should be integrated in public society, not disqualified from it. Statutes that create overly burdensome language proficiency standards create problems with the jury selection process. These standards limit and often deny LEP …

Introduction: Four Views On Healthism

Marquette Benefits and Social Welfare Law Review

None

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Intimate Liberties And Antidiscrimination Law, Deborah A. Widiss

Articles by Maurer Faculty

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several …

Boys Will Be Girls, And Girls Will Be Boys: Urging The Supreme Court To Recognize A Transgender Student's Right To Use The Appropriate Facilities In A Federally Funded School, Dianna Felberbaum

Touro Law Review

No abstract provided.

Auditing Algorithms For Discrimination, Pauline Kim

Scholarship@WashULaw

This Essay responds to the argument by Joshua Kroll, et al., in Accountable Algorithms, 165 U.PA.L.REV. 633 (2017), that technical tools can be more effective in ensuring the fairness of algorithms than insisting on transparency. When it comes to combating discrimination, technical tools alone will not be able to prevent discriminatory outcomes. Because the causes of bias often lie, not in the code, but in broader social processes, techniques like randomization or predefining constraints on the decision-process cannot guarantee the absence of bias. Even the most carefully designed systems may inadvertently encode preexisting prejudices or reflect structural bias. For this …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Racism Didn't Stop At Jim Crow, Samuel R. Bagenstos

Reviews

Nearly 50 years ago, the Kerner Commission famously declared that “[o]ur nation is moving toward two societies, one black, one white—separate and unequal.” The picture has changed distressingly little since then. In the 1950 Census, the average African American in a metropolitan area lived in a neighborhood that was 35 percent white—the same figure as in the 2010 Census. In 2010, the average white American still lived in a neighborhood that was more than 75 percent white. America’s largest metropolitan areas—particularly, but not exclusively, in the North—continue to score high on many common measures of racial segregation. And racial segregation …

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

Voting Realism, Gilda R. Daniels

All Faculty Scholarship

Since Shelby County v. Holder, the country has grown accustomed to life without the full strength of the Voting Rights Act. Efforts to restore Section 4 have been met with calls to ignore race conscious remedies and employ race neutral remedies for modern day voting rights violations. In this new normal, the country should adopt “voting realism” as the new approach to ensuring that law and reality work to address these new millennium methods of voter discrimination.

Klatsky Endowed Lecture, Presented By The U.N. High Commissioner For Human Rights, Prince Zeid Ra'ad Al Hussein

Case Western Reserve Journal of International Law

A speech that discusses the quest for global justice through monitoring, factfinding and reporting injustices such as torture, arbitrary detention, enforced disappearance, sexual violence, slavery, murder, and discrimination.

Uniform Rules: Addressing The Disparate Rules That Deny Student-Athletes The Opportunity To Participate In Sports According To Gender Identity, Chelsea Shrader

University of Richmond Law Review

No abstract provided.

Ending Disparities And Achieving Justice For Individuals With Mental Disabilities, Robert K. Goldman, Sheila Shea

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Can The Government Deport Immigrants Using Information It Encouraged Them To Provide?, Amanda Frost

Scholarly Articles in Law Reviews & Journals

This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any …

Paying For Privacy And The Personal Data Economy, Stacy-Ann Elvy

Articles & Chapters

Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires consumers to pay an additional fee to prevent their data from being collected and mined for advertising purposes. This Article conducts a simultaneous in-depth exploration of the impact of burgeoning PDE and PFP models. It …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents In Masterpiece Cakeshop Ltd, Et Al V. Colorado Civil Rights Commission, Angela Onwuachi-Willig, Catherine E. Smith, Lauren Fontana, Tanya Washington, Barbara Bennett Woodhouse

Faculty Scholarship

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational …

Book Review: Absent Aviators: Gender Issues In Aviation, Janet K. Tinoco, Genderie S. Rivera

Publications

This document is Dr. Tincoco's review of Absent Aviators: Gender Issues in Aviation edited by Donna Bridges, Jane Neal-Smith, and Albert J. Mills. Ashgate Publishing Limited, Farnham, 2014. 233 pp. $129.95.

A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones

Faculty Scholarship

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …

Charting The Middle Course: An Argument For Robust But Well-Tailored Health Care Discrimination Protection For The Transgender Community, John E. Farmer

Georgia Law Review

Section 1557 of the Patient Protection and Affordable
Care Act offers sweeping discriminationprotections for
patients, applicable to both health insurers and health
care providers who receive federal funding or are
subject to federal administration. Placing itself in the
canon of federal antidiscriminationlaws, Section 1557
incorporates Title IX of the Education Amendments of
1972 to prohibit discrimination on the basis of sex.
Just how sweeping this aspect of Section 1557s
prohibitions is has been the subject of controversy
exemplified in litigation in the federal courts, as well as
in the starkly contrasting views of two presidential
administrations. The Department of Health …

Rental Home Sweet Home: The Disparate Impact Solution For Renters Evicted From Residential Foreclosures, David Lurie

Northwestern University Law Review

At the end of the last decade, a drastic spike in residential foreclosures brought unprecedented attention to the damage that mass foreclosure often brings to primarily low-income, minority–majority communities. Much of this attention—in both the media and in the legal arena—has been devoted to homeowners disadvantaged by predatory loans and other unsavory practices. However, a recent body of scholarship has shown that the brunt of mass foreclosure often falls on renters, who often have little or no procedural protection from speedy and unexpected eviction from their homes, regardless of lease status or tenure. This Note argues that the Supreme Court’s …

Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher

Michigan Journal of Gender & Law

Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.