Civil Rights and Discrimination Commons^™

Sell V. United States: Is The Supreme Court Giving A Dose Of Bad Medicine?: The Constitutionality Of The Right To Forcibly Medicate Mentally Ill Defendants For Purposes Of Trial Competence, Dina E. Klepner

Pepperdine Law Review

No abstract provided.

Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera

Schmooze 'tickets'

No abstract provided.

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

Are Bills Of Attainder The New Currency? Challenging The Constitutionality Of Sex Offender Regulations That Inflict Punishment Without The "Safeguard Of A Judicial Trial", Joel A. Sherwin

Pepperdine Law Review

No abstract provided.

The Ninth Circuit's Perry Decision And The Constitutional Politics Of Marriage Equality, William N. Eskridge

Georgetown Law Faculty Publications and Other Works

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay …

Brief Of Committee Of Law Professors And Historians As Amici Curaie, In Support Of Plaintiffs-Appellant, Coalition To Defend Affirmative Action V. Brown, 674 F.3d 1128 (2012) (No. 11-15100, 11-15241), Wilson Huhn

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in California’s public universities within a broader historical context.  State constitutional amendments such as Proposition 209 are not uncommon in American history.  In reaction to calls for reform from a minority group – whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration – the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

Brief For Prof. Leslie C. Griffin As Amica Curiae In Support Of Neither Party, Cannata V. Catholic Diocese Of Austin, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Brief For Prof. Leslie C. Griffin As Amica Curiae In Support Of Appellant, Scott V. Pierce, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Brief For Prof. Leslie C. Griffin Et Al. As Amici Curiae In Support Of Respondents, Hosanna-Tabor Evangelical Lutheran Church And School V. E.E.O.C., Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler

Scholarly Publications

Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? Recently, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.

These studies all rely on a particular historical account of past same-sex marriage decisions and their …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

History Of De Jure Segregation In Public Higher Education In America And The State Of Maryland Prior To 1954 And The Equalization Strategy, John K. Pierre

Florida A & M University Law Review

No abstract provided.

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH

The Birthright Citizenship Controversy: A Study Of Conservative Substance And Rhetoric, 18 Tex. Hisp. J. L. & Pol'y 49 (2012), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

This essay is a critique of the conservative rhetoric used in attack of birthright citizenship--as granted by Clause One of the Fourteenth Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The rhetoric of that attack violates the traditional canons of conservative argumentation and interpretation, such as original intent and textualism. As such, conservatives' arguments call into question the seriousness of their allegiance to these canons.

This article will not discuss the pros and cons of what we …

Shelby County V. Holder And The Voting Rights Act: Getting The Right Answer With The Wrong Standard, Michael James Burns

Catholic University Law Review

No abstract provided.

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

Constitutional Catastrophe: The National Defense Authorization Act Vs. The Bill Of Rights, Shahid Buttar

Public Interest Law Reporter

No abstract provided.

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Articles by Maurer Faculty

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …

Brief Of Committee Of Law Professors And Constitutional Historians As Amicus Curiae In Support Of Plaintiffs-Appellants, Coalition To Defend Affirmative Action, Integration & Immigrant Rights & Fight For Equal. By Any Means Necessary (Bamn) V. Regents Of The Univ. Of Mich., Nos. 08-1387, 08-1534 (6th Cir. Oct. 25, 2011)., Michelle Adams, Richard Aynes, Wilson R. Huhn, Michael A. Lawrence, Michael Perry, Richard Saphire, Christopher Waldrep, Rebecca Zietlow

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in Michigan’s public universities within a broader historical context. State constitutional amendments such as Proposal 2 are not uncommon in American history. In reaction to calls for reform from a minority group - whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration - the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.