Civil Rights and Discrimination Commons^™

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson

ExpressO

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake

ExpressO

Existing case law and legal scholarship assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or lowering the level of treatment for the favored group until their members fare as badly as the persons complaining of inequality. The term “leveling down” refers to the latter response. The 1971 case of Palmer v. Thompson provides the classic example of the typical judicial response to leveling down: the Supreme Court accepted the decision of Jackson, Mississippi, to close its swimming pools, rather than operate them …

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett

ExpressO

An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.

It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.

The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.

The Narrow Tailoring Issue In The Affirmative Action Cases: Reconsidering The Supreme Court's Approval In Gratz And Grutter Of Race-Based Decision Making By Individualized Discretion, David Crump

ExpressO

No abstract provided.

Racism As "The Nation's Crucial Sin": Theology And Derrick Bell , George H. Taylor

ExpressO

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell’s thesis of racism’s permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr’s paradox that social action is both necessary and meaningful …

Combating Money Laundering And International Terrorism: Does The Usa Patriot Act Require The Judicial System To Abandon Fundamental Due Process In The Name Of Homeland Security?, Joan M. O'Sullivan Butler

ExpressO

The USA PATRIOT Act was part of a wave of legislation which reshaped national security policies while simultaneously restricting traditional civil liberties in response to the terrorist attacks of September 11. Among the many terrorism related provisions of the Act, the executive branch was given authority to freeze the assets of organizations in which there is a foreign interest suspected of funding terrorist organizations through the use of an asset blocking order pending further investigation. The Act further permits the use of classified information which will be subjected to only ex parte, in camera inspection by the judge presiding over …

Liability Rules For Constitutional Rights: The Case Of Mass Detentions, Eugene Kontorovich

ExpressO

Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

Lawrence And Same-Sex Marriage Bans: On Constitutional Interpretation And Sophistical Rhetoric, Mark Strasser

ExpressO

No abstract provided.

Affirmative Action: More Efficient Than Color Blindness, Abraham Lee Wickelgren

ExpressO

One of the most compelling reasons against affirmative action is the principle of color blindness, that is, the idea that race is an irrelevant characteristic that should not affect higher education admissions or hiring decisions. Despite its intuitive appeal, this paper shows that adherence to this principle impedes economic efficiency when there has been past discrimination based on color. Past discrimination creates inefficiencies in the economy that persist across generations. Because of this persistence, race is not an irrelevant characteristic for firms and universities looking to hire or admit the best candidates. Affirmative action, not color-blindness, is necessary to reduce …

Discrimination: The Law Vs. Morality, Walter E. Williams

ExpressO

Terminology in racial literature is such that various behaviors are confused with one another making for less than rigorous analysis of racial problems. For some writers prejudice is used in a fashion signifying distaste for a particular race; others use the term suggesting the use of racial stereotypes; yet others use the term as a substitute for discrimination. Similar confusion surrounds the term segregation. Writers frequently refer to school segregation, meaning that few blacks in attendance at a predominantly white school but the same writers would never apply the term to an opera performance with few or no blacks in …

The Secretary's Commission On Opportunity In Athletics Squandered Its Opportunity: Commercial College Sports And Why Title Ix Cannot Achieve Full Gender Equality Or Prevent The Elimination Of Minor Men's Teams, Suzanne Sangree

ExpressO

The Department of Education recently announced that it would not revise the regulations which apply Title IX to athletics, thus rejecting the recommendations of its Commission on Opportunity in Athletics. The Commission’s recommendations would have drastically undercut Title IX’s efficacy and established a Bush Administration model for turning civil rights protections on their heads. Fortunately, the Administration heeded the public critique of the Commission’s recommendations and retreated from its previously stated intention to implement them. Instead, it reiterated its support for the principles of gender equality embodied in Title IX. We thus narrowly averted a civil rights disaster. The great …