Civil Rights and Discrimination Commons^™

The Tipping Point On The Scales Of Civil Justice, Dennis A. Kaufman

Touro Law Review

The right to counsel in civil cases-metaphorically known as Civil Gideon-has gained traction in segments of the legal community, but advances have thus far been legislative, and while significant, adoption has been slow, less than cohesive or thematic and inconsistent across the country. Patchwork recognition and implementation by legislatures forms a fragile and uneven safety net. The availability of counsel is far from comprehensive. The preferred path to a comprehensive right to counsel in civil matters goes through the United States Supreme Court, but the Court refused to recognize a due process constitutional right to counsel in a civil matter …

Shearson V. United States Department Of Homeland Security: The Sixth Circuit Exempts National Security From The Privacy Act, Douglas A. Behrens

Legislation and Policy Brief

“ARMED AND DANGEROUS.” Imagine those words flashing on a Customs and Border Protection (“CBP”) agent’s computer screen as you attempt to reenter your country of birth from a relaxing vacation. Reacting to the computerized warning, the CBP agents detain and question you for several hours before you are released from custody—without an explanation—and allowed to continue on your trip home as if nothing had happened.

This hypothetical scenario became very real for Julia Shearson and her four-year old daughter in January 2006, and marked the beginning of her quest for answers. Why was she flagged as “ARMED AND DANGEROUS?” What …

Up Or Out And Into The Supreme Court: A Forecast For Hishon V. King And Spalding , Linda Randlett Kollar

Pepperdine Law Review

The author presents an extensive analysis of Title VII in an effort to forecast the forthcoming Supreme Court decision of Hishon v. King and Spalding. Included are the issues presented to the Court, the legislative history of Title VII, the Eleventh Circuit Court of Appeals' decision, and a historical inquiry of the applicable decisions of the Burger Court. Although the outcome of the case has yet to be decided, the author's informed prediction will guide commentaries in the future.

Reinforcement Of Middle Level Review Regarding Gender Classifications: Mississippi University For Women V. Hogan , Mary Ellen Shull

Pepperdine Law Review

In Mississippi University for Women v. Hogan, the United States Supreme Court was presented with an equal protection challenge initiated by a male who was denied admission to a state-supported all-female school of nursing. After a review of relevant decisions in this area, the author examines the Supreme Court's intermediate level of scrutiny analysis and argues that application of a higher level of scrutiny to gender-based classifications is a prerequisite to true equality between the sexes.

Saint Francis College V. Al-Khazraji: Cosmetic Surgery Or A Fresh Breadth For Section 1981? , Barbara A. Bayliss

Pepperdine Law Review

No abstract provided.

The Dignity Of Equality Legislation, Olatunde C.A. Johnson

Faculty Scholarship

In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," …

Constitutional Limitations On Closing The Gender Gap In Employment, Marcia L. Mccormick

All Faculty Scholarship

Despite our country’s efforts to eliminate it, there remain pay and achievement gaps between men and women in the workplace. This article summarizes legal approaches to close the gap, constitutional developments that have slowed government’s power to address the inequality, worrisome trends in recent cases, and the implications of these. This article proposes a future of utilizing congress’s taxing power to address inequalities.

How Congress Could Defend Doma In Court (And Why The Blag Cannot), Matthew I. Hall

Scholarly Works

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the …

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

Presumed Disadvantaged: Constitutional Incongruit In Federal Contract Procurement And Acquisition Regulations, William J. Bogard

West Virginia Law Review

No abstract provided.

The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson

Pepperdine Law Review

No abstract provided.

The Offender And The Victim, Edward Tromanhauser

Pepperdine Law Review

No abstract provided.

Crime Victims' Rights -- A Legislative Perspective, William Van Regenmorter

Pepperdine Law Review

No abstract provided.

Emerging Issues In Victim Assistance, Marlene A. Young

Pepperdine Law Review

No abstract provided.

Progress In The Victim Reform Movement: No Longer The "Forgotten Victim", David L. Roland

Pepperdine Law Review

No abstract provided.

The Elevation Of Victims' Rights In Washington State: Constitutional Status, Ken Eikenberry

Pepperdine Law Review

No abstract provided.

Victims' Rights: An Idea Whose Time Has Come--Five Years Later: The Maturing Of An Idea, Frank Carrington, George Nicholson

Pepperdine Law Review

No abstract provided.

Introduction, Ronald F. Phillips

Pepperdine Law Review

No abstract provided.

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Constitutional Advocacy Explains Constitutional Outcomes, Stephen A. Higginson

Florida Law Review

This Article seeks to show that scholars, especially constitutional scholars, must pay more attention to the ways advocates frame their controversies at the "capital of the world." If the Anti-federalists' prophecy was that an overly complex constitution would accrete power around its ambiguities, then the perpetual refinement of the Constitution by lawyers in controversy—from article to section to sentence to clause to phrase to word—has given the best protection against inflexibility. This thesis is timely because lawyering is more accessible with the Court's recent decision to post oral arguments "on the same day an argument is heard by the Court." …

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

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

Legislation and Policy Brief

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 …

Federal Efforts To Achieve Mental Health Parity: A Step In The Right Direction, But Discrimination Remains, Lucas Quass

Legislation and Policy Brief

Prior to the 1970s, many healthcare plans in the U.S. offered benefits without discriminating between mental health and general healthcare coverage. In the 1970s and 1980s, the cost of healthcare increased dramatically and employers eliminated or limited mental health benefits in an attempt to reduce insurance costs. To manage insurance costs, employers began using more cost sharing mechanisms and benefit caps on mental health benefits. However, these limitations were not applied equally to mental health and general health benefits and a coverage disparity was created. Today, insurers often do not provide coverage for mental health on the same terms as …

The Americans With Disabilities Act: Should The Amendments To The Act Help Individuals With Mental Illness?, Abigail J. Schopick

Legislation and Policy Brief

On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA). The ADA was intended to eliminate discrimination against individuals with disabilities by expanding the Rehabilitation Act (Rehab Act) to cover people with disabilities in need of coverage from a non-federal employer or entity. Unfortunately, due to a number of Supreme Court cases narrowing the focus of the ADA, the individuals that were intended by Congress to have full protection under the law were no longer assured adequate coverage. In 2008, in response to the narrowing of the definition of disability and …

New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards

Pepperdine Dispute Resolution Law Journal

This article first analyzes the state of affairs under the Individuals with Disabilities Education Act (IDEA), prior to the passage of the Individuals with Disabilities Education Improvement Act of 2004, and the affects that the 1997 reauthorization alternative dispute resolution amendments had on special education law. Next, this article will address the appropriateness of the newly enacted negotiation and settlement methods, specifically the resolution session provision, and the benefits and detriments for resolving special education issues using these processes. This article will further discuss the amendments regarding attorneys' fees, and finally the House's failed proposal for voluntary binding arbitration and …

Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau

Pepperdine Dispute Resolution Law Journal

The Individual Disabilities Education Act of 1997 first offered mediation processes to parents and school systems as an available dispute resolution process. Congress mandated that mediation be made available whenever a due process hearing was filed. The intent was to assist parents and school systems in resolving their differences regarding the educational needs for children with disabilities through increased discussions and collaborative efforts; this would reduce the need for costly and adversarial litigation. Alternative dispute resolution processes have taken an increasingly dominant role within the newly reauthorized IDEIA of 2004, reflecting Congressional promotion of parent and district collaboration for achieving …

Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss

Articles by Maurer Faculty

Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …