Civil Rights and Discrimination Commons^™

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

It's Not The Thought That Counts, Deborah S. Hellman

ExpressO

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

All Deliberate Speed: Brown's Past And Brown's Future, Charles J. Ogletree Jr.

West Virginia Law Review

No abstract provided.

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

The Disability Integration Presumption: Thirty Years Later, Ruth Colker

The Ohio State University Moritz College of Law Working Paper Series

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …

Reflections On Diversity, William M. Tabb

Journal of Legal Education

No abstract provided.

Affirmative Action And The Decline Of Intellectual Culture, Charles W. Collier

Journal of Legal Education

No abstract provided.

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

In Or Out? Groups And The Fourteenth Amendment After Lawrence V. Texas, Miranda Mcgowan

ExpressO

This article explores a line of Supreme Court cases that have struck down state laws using a rigorous form of rational basis scrutiny, culminating in Lawrence v. Texas. The facts of these rigorous rational basis cases are diverse, but they share a common denominator: the Court has applied more rigorous rational basis scrutiny when a government has restricted the liberties of, or denied some state benefit, to a group—specifically, gays, lesbians, persons with disabilities, illegal immigrant children, and hippies.

Rigorous rational basis scrutiny has not wholly supplanted regular rational basis scrutiny. Courts still use regular rational basis scrutiny to review …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford

ExpressO

Recognizing that the right to free speech for dissidents is increasingly at risk in the United States, this submission catalogs manifold methods the government has employed to constrain free speech and urges that courts not only serve as a bulwark against further erosion of public expression of dissent but endeavor to restore access to the public forum that recently has been lost. The submission surveys the background of the right to free expression and provides details and examples of the government’s increasing tendency to suppress dissident speech by deploying heavily armed police in demonstrations, committing violent acts against peaceful protesters, …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Review Of David E. Bernstein's "You Can't Say That!--The Growing Threat To Civil Liberties From Antidiscrimination Laws", Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge

Articles

No abstract provided.

Post Operative Transsexuals' Right To Marriage, Sarah Leinicke

The Modern American

No abstract provided.

The Return Of J. Edgar Hoover: The Fbi's Reversion To Political Intelligence Gathering , Zehra Naqvi

The Modern American

No abstract provided.

Spotlight On Kevin Jennings: Executive Director And Co-Founder Of The Gay, Lesbian, And Straight Education Network (Glsen) , Lydia Edwards

The Modern American

No abstract provided.

For Crying Out Loud: Ohio's Legal Battle With Public Breastfeeding And Hope For The Future, Brianne Whelan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

In The Wake Of Gratz V. Bollinger: Standing On Thin Ice, 38 J. Marshall L. Rev. 1037 (2005), Zubaida Qazi

UIC Law Review

No abstract provided.

Don't Ask, Don't Tell, Don't Work: The Discriminatory Effect Of Veterans' Preferences On Homosexuals, 38 J. Marshall L. Rev. 1083 (2005), Louis J. Virelli Iii

UIC Law Review

No abstract provided.

Balancing A Burning Cross: The Court And Virginia V. Black, 38 J. Marshall L. Rev. 1205 (2005), Jason A. Abel

UIC Law Review

No abstract provided.

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall

Seattle University Law Review

This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …

Lawrence Beyond Gay Rights: Taking The Rationality Requirement For Justifying Criminal Statutes Seriously, 53 Drake L. Rev. 231 (2005), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Back To Bakke: Defining The Strict Scrutiny Test For Affirmative Action Policies Aimed At Achieving Diversity In The Classroom, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This Article will identify the new strict scrutiny test, and will consider the reason for creating a separate definition of strict scrutiny for evaluating affirmative action policies that achieve diversity in the classroom. Part II of the Article will review constitutional challenges to affirmative action policies prior to Grutter and Gratz, and will discuss the split in the circuits that resulted from the Court's failure to endorse Justice Powell's definition of a compelling governmental interest in Bakke. Part III will provide an analysis of the Grutter and Gratz decisions, with a particular focus on each Court's discussion of the strict …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view …

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Faculty Scholarship

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all …

Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting

William Mitchell Law Review

This note examines the constitutionality of Minnesota’s proposed marriage amendment. The note begins with a description of the recent national events leading up to the amendment’s proposal, followed by a discussion of the history of marriage in Minnesota, including passage of the Defense of Marriage Act in May 1997. Next, the note examines the language of Minnesota’s proposed marriage amendment and briefly addresses the process of amending state constitutional provisions. It then analyzes the proposed amendment’s constitutionality under the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. Finally, the …