Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (24)
- Civil Rights and Discrimination (18)
- Fourteenth Amendment (13)
- Courts (7)
- Law and Society (7)
-
- Law and Politics (6)
- Immigration Law (5)
- Jurisprudence (5)
- Law and Race (5)
- Legal History (4)
- Public Law and Legal Theory (4)
- Judges (3)
- Criminal Law (2)
- Criminal Procedure (2)
- First Amendment (2)
- Human Rights Law (2)
- Social Welfare Law (2)
- Social and Behavioral Sciences (2)
- Arts and Humanities (1)
- Business Organizations Law (1)
- Commercial Law (1)
- Consumer Protection Law (1)
- Economic Theory (1)
- Economics (1)
- Education (1)
- Family Law (1)
- Fourth Amendment (1)
- Health Law and Policy (1)
- History (1)
- Institution
-
- Touro University Jacob D. Fuchsberg Law Center (6)
- Selected Works (5)
- SelectedWorks (4)
- Boston University School of Law (2)
- University of Pennsylvania Carey Law School (2)
-
- American University Washington College of Law (1)
- Columbia Law School (1)
- Emory University School of Law (1)
- Florida State University College of Law (1)
- Fordham Law School (1)
- Loyola Marymount University and Loyola Law School (1)
- Notre Dame Law School (1)
- University at Buffalo School of Law (1)
- University of Colorado Law School (1)
- University of Denver (1)
- University of Florida Levin College of Law (1)
- University of Georgia School of Law (1)
- University of Pittsburgh School of Law (1)
- University of Tennessee College of Law (1)
- Vanderbilt University Law School (1)
- Western New England University (1)
- Publication
-
- Touro Law Review (6)
- Faculty Scholarship (4)
- Adam Lamparello (3)
- All Faculty Scholarship (2)
- Journal Articles (2)
-
- Mel Cousins (2)
- Articles (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Darren L Hutchinson (1)
- Faculty Articles (1)
- Florida State University Law Review (1)
- Fordham Law Review (1)
- Georgia Journal of International & Comparative Law (1)
- Jude A Thomas (1)
- Loyola of Los Angeles Law Review (1)
- Mark Strasser (1)
- Publications (1)
- Sharon E. Rush (1)
- Sturm College of Law: Faculty Scholarship (1)
- Tennessee Journal of Race, Gender, & Social Justice (1)
- UF Law Faculty Publications (1)
- Vanderbilt Law School Faculty Publications (1)
- Publication Type
- File Type
Articles 1 - 30 of 35
Full-Text Articles in Law
District Court, Suffolk County New York, People V. Nytac Corp., Maureen Fitzgerald
District Court, Suffolk County New York, People V. Nytac Corp., Maureen Fitzgerald
Touro Law Review
No abstract provided.
“The Last Acceptable Prejudice”: Student Harassment Of Gay Public School Teachers, Matthew Bernstein
“The Last Acceptable Prejudice”: Student Harassment Of Gay Public School Teachers, Matthew Bernstein
Tennessee Journal of Race, Gender, & Social Justice
In the United States, where the “marketplace of ideas” is a key social philosophy, few Americans receive the benefits of attending public schools with “out” gay and lesbian teachers. Even in an era where civil rights for homosexual public employees are increasing, more than one quarter of adults in the United States continue to believe that school boards should be permitted to fire teachers known to be homosexual. Amid a permissive legal climate that too easily puts aside the rights of teachers in a myopic focus on students, incidents where students harass teachers based on the teachers’ sexual orientation go …
Supreme Court, Bronx County, People V. Butler, Courtney Weinberger
Supreme Court, Bronx County, People V. Butler, Courtney Weinberger
Touro Law Review
No abstract provided.
Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin
Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin
Touro Law Review
No abstract provided.
Disparity In Police Procedures For Non-English Speaking Dwi Suspects: Constitutional Protections For Non-English Speaking Criminal Defendants Falling Second To Governmental Interests, Daniela Giordano
Touro Law Review
No abstract provided.
The Cost To Carry: New York State’S Regulation On Firearm Registration, David D. Pelaez
The Cost To Carry: New York State’S Regulation On Firearm Registration, David D. Pelaez
Touro Law Review
No abstract provided.
Diversity: The Red Herring Of Equal Protection, Sharon E. Rush
Diversity: The Red Herring Of Equal Protection, Sharon E. Rush
Sharon E. Rush
Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …
Georgia's Workers' Compensation Law: Are Limitations On Death Benefits To Foreign, Nonresident Dependents Constitutional? Barge-Wagener Constr. Co. V. Morales, Peter J. Diskin
Georgia Journal of International & Comparative Law
No abstract provided.
The Return Of Noncongruent Equal Protection, Brian Soucek
The Return Of Noncongruent Equal Protection, Brian Soucek
Fordham Law Review
Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy’s opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts—especially those deciding how Windsor’s federalism should affect the ever-growing number of state same-sex marriage cases—have so far failed to account for Windsor’s noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take.
This Article draws answers …
Undoing Race? Reconciling Multiracial Identity With Equal Protection, Lauren Sudeall
Undoing Race? Reconciling Multiracial Identity With Equal Protection, Lauren Sudeall
Vanderbilt Law School Faculty Publications
The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition …
The Ties That Bind: Reevaluating The Role Of Legal Presumptions Of Paternity, Heather Kolinsky
The Ties That Bind: Reevaluating The Role Of Legal Presumptions Of Paternity, Heather Kolinsky
Loyola of Los Angeles Law Review
As Justice Brennan observed in Michael H. v. Gerald D. so many years ago, we must “identify the point at which a tradition becomes firm enough to be relevant to our definition of liberty and the moment at which it becomes too obsolete to be relevant any longer.” This Article addresses one such tradition, the legal presumption of paternity, and examines it through the lens of equal protection, the changing roles of fatherhood, and the evolution of marriage. The concept of who is a parent must change to both satisfy equal protection as well as modern scientific and societal realties. …
Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr.
Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr.
Journal Articles
This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, …
Schuette, Electoral Process Guarantees, And The New Neutrality, Mark Strasser
Schuette, Electoral Process Guarantees, And The New Neutrality, Mark Strasser
Mark Strasser
Last term in Schuette v. Coalition to Defend Affirmative Action, the United States Supreme Court addressed the breadth of electoral process guarantees, which have stood as a bulwark against attempts to impose extra electoral burdens on discrete minorities. While the Schuette holding is clear—federal constitutional guarantees are not necessarily violated by the voters’ amending their state constitution to preclude the state from affording racial preferences—the plurality opinion raises more questions than it answers both with respect to the particular constitutional doctrine before the Court and with respect to equal protection jurisprudence more generally. The plurality has now not only left …
Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman
Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman
Florida State University Law Review
No abstract provided.
Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas
Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas
Jude A Thomas
Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …
Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke
Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke
Journal Articles
The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.
From Windsor’s holding, the Article distills …
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
All Faculty Scholarship
Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello
Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello
Adam Lamparello
There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …
Court Of Appeals Of New York - Cubas V. Martinez, Gregory Gillen
Court Of Appeals Of New York - Cubas V. Martinez, Gregory Gillen
Touro Law Review
No abstract provided.
Illegitimate Borders: Jus Sanguinis Citizenship And The Legal Construction Of Family, Race, And Nation, Kristin Collins
Illegitimate Borders: Jus Sanguinis Citizenship And The Legal Construction Of Family, Race, And Nation, Kristin Collins
Faculty Scholarship
The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates …
Language Disenfranchisement In Juries: A Call For Constitutional Remediation, Jasmine Gonzales Rose
Language Disenfranchisement In Juries: A Call For Constitutional Remediation, Jasmine Gonzales Rose
Faculty Scholarship
Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing …
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Darren L Hutchinson
Abstract
Preventing Balkanization or Facilitating Racial Domination: A Critique of the
New Equal Protection
The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.” …
The Compact Clause And National Popular Vote: Implications For The Federal Structure, Robert M. Hardaway, Tara Ross
The Compact Clause And National Popular Vote: Implications For The Federal Structure, Robert M. Hardaway, Tara Ross
Sturm College of Law: Faculty Scholarship
The Electoral College is a vital part of the Founders' federalist Constitution. NPV pretends to be in line with this federalist structure, but its claims are disingenuous. In reality, NPV would destroy the federalist nature of the presidential election process. A system that today operates as a combination of democracy and federalism would change: It would instead operate as pure democracy. This change from federalism to pure democracy would be made even if a majority of states disapproved. As a policy matter, eliminating federalism from the presidential election process will have many practical consequences that make such a change inadvisable. …
Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson
Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson
Faculty Articles
The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.
A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to …
The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.
The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.
Articles
This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …
Was The First Justice Harlan Anti-Chinese?, James W. Gordon
Was The First Justice Harlan Anti-Chinese?, James W. Gordon
Faculty Scholarship
The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …
The Law And Economics Of Stop-And-Frisk, David S. Abrams
The Law And Economics Of Stop-And-Frisk, David S. Abrams
All Faculty Scholarship
The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.