Civil Rights and Discrimination Commons^™

Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower

ExpressO

A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.

Courts today are deeply involved in …

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

ExpressO

The article focuses on the challenges for women’s rights activists attempting to provide a better legal regime for victims of domestic violence in Nigeria. It is my desire to provide a resource material on the issue of domestic violence for activists, policy makers, legislators and law reformers who are engaged in providing a better legal framework for the protection and promotion of women’s rights in a developing country like Nigeria. Having worked extensively on this issue, the article documents my experience on law reform advocacy in Nigeria.

Malibu Locals Only: "Boys Will Be Boys", Or Dangerous Street Gang? Why The Criminal Justice System's Failure To Properly Identify Suburban Gangs Hurts Efforts At Fighting Gangs, Brian William Ludeke

ExpressO

In the last several years, a group of youths calling themselves Malibu Locals Only or MLO has performed several violent crimes, intimidating many people in the area around Malibu, CA. Despite the gang-like appearance of these youths and their crimes, Los Angeles County Sheriff's Department officials insist that MLO is not a gang. This article examines MLO, its history, and its current state in the context of California anti-gang legislation.

The article theorizes that the criminal justice system's failure to call a group like MLO a gang while waging war on other groups, primarily in lower income, heavily minority areas, …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Defamation, Antidiscrimination And The Incredible Shrinking Actress, Amrita Mallik

ExpressO

No abstract provided.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

ExpressO

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Any Place For Ethnicity? The Liberal State And Immigration, David Abraham

ExpressO

When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn’T Matter?, Preston C. Green

ExpressO

This article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in the KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how the KCMSD desegregation plan has been …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

When 2 Or 3 Come Together, Tracey L. Meares

ExpressO

This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago’s West Side. Strikingly, the local police district’s commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Come Down & Make Bargains In Good Faith: The Application Of 42 U.S.C. § 1981 To Race & National Origin Discrimination In Retail Stores, Charlotte H. Sanders

ExpressO

Plaintiffs who are harassed or otherwise discriminated against in retail stores on the basis of their race or national origin have few options for legal redress. The major federal public accommodations statute, Title II of the Civil Rights Act of 1964, does not cover retail stores. In addition, while some state public accommodations statutes explicitly ban discrimination in retail stores, many others do not. As a result, plaintiffs who have been discriminated against in retail stores have turned to the contracts clause of 42 U.S.C. § 1981.

Section 1981, a Reconstruction-era civil rights statute, guarantees to all people within the …

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …

The Expressive Impact Of Patents, Timothy R. Holbrook

ExpressO

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical.

There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create …

An Analysis Of The Contemporary Role Of Social Science In The Law: The Case Of Race Conscious Admissions, Crystal R. Gafford Muhammad

ExpressO

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence does not affect the outcomes of court cases involving normative subject matters, such as those involving race. I find judicial political affiliation to be the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or …

Just Say "No Fishing": The Lure Of Metaphor, Beth Thornburg

ExpressO

The phrase “fishing expedition” is widely used in popular culture and in the law. In the case of metaphorical “fishing” in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of “fishing” also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

Poor Whites, Benevolent Masters, And The Ideologies Of Slavery: A Slave Accused Of Rape In The Antebellum South, Jason A. Gillmer

ExpressO

This Article analyzes in detail a case involving a slave accused of raping a white woman in the 1850s to offer a fresh perspective on our basic assumptions about sex and race in the slave South. Joining a new group of “cultural-legal historians,” the author looks beyond the legal language of Southern legislatures and high courts, and focuses instead on the trial record of one case: State v. Pleasant. In doing so, the author uncovers the stories of ordinary men and women – the slave, his master, his accuser, his attorney, the jurors, and others – to see how the …

Law, Narrative, And The Continuing Colonist Oppression Of Native Hawaiians, David Barnard

ExpressO

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it …

The Limits Of Equality And The Virtues Of Discrimination, Yifat Bitton

ExpressO

This article focuses on the application of antidiscrimination regimes to groups which have been discriminated-against de jure and de facto. This Article approaches diverges from the dominant view that discrimination is a purely destructive force. The central argument of the Article is that de jure, overt and blatant discrimination necessarily contributes to the creation of a coherent group identity recognized by law, which enables groups that are discriminated against to obtain remedial relief. In contrast, the law fails to recognize a coherent group identity for de facto discriminated-against groups and thus these groups have to overcome a structural challenge to …

Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper

Law Faculty Scholarship

"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …

What's In A Name?: Cause Lawyers As Conceptual Category, Corey S. Shdaimah

ExpressO

Stuart Scheingold's and Austin Sarat's "Something to Believe In: Politics, Professionalism, and Cause Lawyering," (Stanford University Press, December 2004) draws on a decade of empirical and theoretical work on cause lawyering. Scheingold’s and Sarat’s law and society scholarship contributes to our knowledge of lawyering, the law, work with clients and social movements, and the interplay between what Ewick and Silbey have called "legality" and the social world. Their cross-disciplinary work makes a significant contribution to the social sciences as well as to the field of legal studies. This review examines the utility of cause lawyering as a concept that contributes …

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Dan The Xenophobe Rides The A-Train Or The Modern, "Secret" Racist: Unconscious Racism In `Enlightened America' And The Destructive Stereotypes That Fuel It, Richard D. Salgado

ExpressO

A short story style exploration of unconscious racism in modern "enlightened" America.

Reading, Writing, And Reparations: Systematic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Faculty Articles and Other Publications

This Article examines reparations as a means of supporting systemic reform of public education, focusing on a recent enactment of the Virginia General Assembly, the Brown v. Board of Education Scholarship Program and Fund (Brown Fund Act). This provision seeks to remedy the state's refusal to integrate schools after the Supreme Court's decision in Brown v. Board of Education by providing scholarships to persons denied an education between 1954 and 1964, a period known as massive resistance. Under this regime, the state's executive and legislative branches colluded to develop laws that defied Brown's mandate, including authorizing the governor to close …

Toward Praxis, Emily Houh

Faculty Articles and Other Publications

This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis …

Making America "The Land Of Second Chances": Restoring Socioeconomic Rights For Ex-Offenders, Deborah N. Archer, Kele Stewart

Articles

No abstract provided.