Civil Rights and Discrimination Commons^™

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

The Legacy Of Loving, Joanna L. Grossman, John Dewitt Gregory

Hofstra Law Faculty Scholarship

The Supreme Court sounded the death knell for anti-miscegenation laws in Loving v. Virginia in 1967. This essay, published in honor of Loving's fortieth anniversary, considers the personal, cultural, and legal legacy of the decision, which brought an abrupt end to the practice of outlawing interracial marriage. But since those laws were already on the way out at the time Loving was decided, its legacy must be constructed by looking more broadly at its impact on American law and society. That exploration reveals first a powerful personal legacy for Mildred and Richard Loving, who were permitted to return to Virginia …

The Incoherence Of Dormant Commerce Clause Nondiscrimination: A Rejoinder To Professor Denning, Edward A. Zelinsky

Articles

A sound intuition animates Professor Denning's defense of the doctrinal status quo under the dormant commerce clause: the courts should not lightly abandon well-established constitutional canons. I nevertheless remain unconvinced by Professor Denning's effort to justify the long-standing interpretation of the dormant commerce clause as forbidding taxes which discriminate against interstate commerce. Whatever the historical justification for this constitutional precept, its past utility, or its visceral appeal, dormant commerce clause nondiscrimination is today doctrinally incoherent in tax contexts. The problem is not one of borderlines and close cases. Rather, at its core, the notion of dormant commerce clause tax nondiscrimination …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

Faculty Scholarship

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.

Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Les Papiers De La Liberté: Une Mère Africaine Et Ses Enfants À L'Époque De La Révolution Haïtienne, Rebecca Scott, Jean M. Hebrard

Articles

During the Louisiana Constitutional Convention of 1867-1868, the young Edouard Tinchant proposed measures to protect the civil rights of women. He suggested that the State adopt legal measures to allow all women, regardless of race or color, to more easily bring complaints in the event of a breach of a marriage promise. He also proposed additional measures to prevent women from being forced into “concubinage” against their will. While that constitutional Convention was open to men of color and guaranteed a number of the rights for which Tinchant and his friends were fighting, the assembly did not adopt his propositions …

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …