Civil Rights and Discrimination Commons^™

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green

William & Mary Bill of Rights Journal

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …

Functionally Suspect: Reconceptualizing 'Race' As A Suspect Classification, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For …

Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner

Loyola of Los Angeles Law Review

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.

The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

William & Mary Law Review

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This Article offers a more rehabilitative reading of Windsor and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills two concrete doctrinal propositions …

Presidential Constitutionalism And Civil Rights, Joseph Landau

William & Mary Law Review

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons—most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Transgender Inpportunity And Inequality: Evaluating The Crossroads Between Immigration And Transgender Individuals, Alexandra Caggiano

Seattle University Law Review

Despite being married to a U.S. citizen, non-citizen transgender individuals and non-citizen spouses married to transgender U.S. citizens still face deportation today due to current immigration policies. When forced to return to their home countries, transgender individuals are likely to encounter violence from those who perpetuate hate towards transgender and gender non-conforming individuals. Instead of protecting these individuals, the United States continues to send people back to their native countries solely because those individuals do not fall within the narrowly constructed definition of marriage some states use that is legally recognized by federal courts. Transgender individuals receive disparate treatment as …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

Presidential Constitutionalism And Civil Rights, Joseph Landau

Faculty Scholarship

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

The New Facially Neutral “Anti-Shariah” Bills: A Constitutional Analysis, Amara S. Chaudhry-Kravitz

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Proposition 8 Is Unconstitutional, But Not Because The Ninth Circuit Said So: The Equal Protection Clause Does Not Support A Legal Distinction Between Denying The Right To Same-Sex Marriage And Not Providing It In The First Place, Nathan Rouse

Seattle University Law Review

In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Should Public Buildings Be Used For Worship, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Articles by Maurer Faculty

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …

Ows, Discourse, And Narratives, Timothy Zick

Popular Media

No abstract provided.

Ows And The Constitution, Timothy Zick

Popular Media

No abstract provided.

Trans-Border Exclusion And Execution, Timothy Zick

Popular Media

No abstract provided.

A Jury Of Your Skinny Peers: Weight-Based Peremptory Challenges And The Culture Of Fat Bias, Margaret (Maggie) Elise O'Grady

Law Faculty Scholarship

No abstract provided.

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto A. Imoukuede

Journal Publications

This Article explains why there is a fundamental duty for the government to provide public education under the U.S. Constitution. Numerous scholars and public officials have written on the need to overrule San Antonio v. Rodriguez or adopt alternative approaches to recognizing a right to public education either judicially or by way of constitutional amendment. This Article identifies a consistent and systemic reluctance by the Court to meaningfully enforce positive rights, which are the duties that the government owes to the people. In doing so, it explores the consistent recognition throughout American history that education is a fundamental duty of …

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

Foreword: Somebody’S Watching Me: Surveillance And Privacy In An Age Of National Insecurity, Robert N. Strassfeld, Cheryl Ough

Faculty Publications

Forward to the Institute for Global Security Law and Policy at Case Western Reserve University symposium Somebody's Watching Me: Surveillance and Privacy in an Age of National Insecurity, Cleveland, OH, October 22-23, 2009

Privacy Is The Problem, Raymond Shih Ray Ku

Faculty Publications

A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, …