Mcculloch And The Thirteenth Amendment,
2013
Notre Dame Law School
Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward
Journal Articles
Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation. This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal …
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy,
2013
Penn State Law
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero
Faculty Scholarship
Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …
Our Illegal Founders,
2013
Penn State Law
Our Illegal Founders, Victor C. Romero
Faculty Scholarship
This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …
Employee Benefits Law: The Hidden Gap Enabling Sexual Orientation Discrimination In Employment,
2013
Benjamin N. Cardozo School of Law
Employee Benefits Law: The Hidden Gap Enabling Sexual Orientation Discrimination In Employment, Jason E. Shapiro
Cardozo Journal of Equal Rights & Social Justice
The note argues that state anti-discrimination laws are ineffective in protecting individuals from sexual orientation discrimination in employment, particularly in cases involving ERISA-governed employee benefits. It highlights how federal ERISA preemption undermines state laws, creating a legal gap that allows employers to discriminate without consequences. The note advocates for federal legislation to address this issue, as amending ERISA or relying on state laws alone cannot fully protect LGB individuals from discrimination in employment.
Identifying (With) Disability: Using Film To Teach Employment Discrimination,
2013
Saint Louis University School of Law
Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo
All Faculty Scholarship
Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.
Making State Merit Scholarship Programs More Equitable And Less Vulnerable,
2013
Saint Louis University School of Law
Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor
All Faculty Scholarship
Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …
Reimagining Merit As Achievement,
2013
Saint Louis University School of Law
Reimagining Merit As Achievement, Aaron N. Taylor
All Faculty Scholarship
Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …
The Danger Of Difference: Tensions In Directors’ View Of Corporate Board Diversity,
2013
Duke Law School
The Danger Of Difference: Tensions In Directors’ View Of Corporate Board Diversity, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome
Faculty Scholarship
This Article describes the results from fifty-seven interviews with corporate directors and a limited number of other persons (including institutional investors, search firm personnel, and the like) regarding their views on corporate board diversity. It highlights numerous tensions in these views. Most directors, for instance, proclaim that diverse boards are good, but very few directors can articulate their reasons for this belief. Some directors have suggested that diverse boards work better than non-diverse boards, but gave relatively few concrete examples of specific instances where a female or minority board member made a special contribution related to that director’s race or …
$4.5 Million Defamation Award Against Anti-Gay Official Upheld,
2013
New York Law School
$4.5 Million Defamation Award Against Anti-Gay Official Upheld, Arthur S. Leonard
Other Publications
No abstract provided.
How Congress Could Defend Doma In Court (And Why The Blag Cannot),
2013
University of Georgia School of Law
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 …
'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions,
2013
American University Washington College of Law
'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley
Scholarly Articles in Law Reviews & Journals
Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …
Procedural Hurdles And Thwarted Efficiency: Immigration Relief In Wage And Hour Collective Actions,
2013
American University Washington College of Law
Procedural Hurdles And Thwarted Efficiency: Immigration Relief In Wage And Hour Collective Actions, Llezlie Green
Scholarly Articles in Law Reviews & Journals
Wage theft and its frequent exploitative companions, trafficking and involuntary servitude, have seen substantial increases in recent years. Low-wage workers often bear the brunt of these practices. Vulnerable populations, such as immigrant workers, and more specifically, undocumented workers, experience wage theft and other forms of workplace-related exploitation at alarmingly high rates. Individual adjudications of these claims are neither efficient nor, in many cases, feasible, given attorneys’ aversion to shouldering the risks and costs in cases that may yield only limited attorneys’ fees. The collective adjudication of Fair Labor Standards Act (FLSA) claims, however, largely resolves these challenges and provides an …
"Give Us Free": Addressing Racial Disparities In Bail Determinations,
2013
American University Washington College of Law
"Give Us Free": Addressing Racial Disparities In Bail Determinations, Cynthia E. Jones
Scholarly Articles in Law Reviews & Journals
This article considers racial disparities that occur nationally in the bail determination process, due in large part to the lack of uniformity, resources, and information provided to officials in bail proceedings. It argues that the almost unbridled decision making power afforded to bail officials is often influenced by improper considerations such as the defendant's financial resources or the race of the defendant. As a result of these failures, the bail determination process has resulted not only in racial inequalities in bail and pretrial detention decisions, but also in the over-incarceration of pretrial defendants and the overcrowding of jails nationwide. The …
Advocating For Equality,
2013
American University Washington College of Law
Advocating For Equality, Stephen Wermiel
Scholarly Articles in Law Reviews & Journals
No abstract provided.
“The Tyranny Of The Majority Is No Myth”: Its Dangers For Legally Married Same-Sex Couples,
2013
California Western School of Law
“The Tyranny Of The Majority Is No Myth”: Its Dangers For Legally Married Same-Sex Couples, Barbara Cox
Faculty Scholarship
This article has three sections. Section 1 explains that sexual minorities, consisting of lesbian, gay, bisexual, transgendered, and queer people (LGBTQ), 15 comprise a small number of people within the U.S. and describes the current laws granting and prohibiting legal rights to married or partnered same-sex couples. Thus, the LGBTQ community is dependent on the non-LGBTQ community to decide its rights when those rights are debated at the ballot box, a bad public policy in and of itself. 16 Section II considers the question posed by this symposium: is the tyranny of the majority a danger to minority communities or …
Criminalizing Normal Adolescent Behavior In Communities Of Color: The Role Of Prosecutors In Juvenile Justice Reform,
2013
Georgetown University
Criminalizing Normal Adolescent Behavior In Communities Of Color: The Role Of Prosecutors In Juvenile Justice Reform, Kristin N. Henning
Georgetown Law Faculty Publications and Other Works
There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice …
"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education,
2013
Western New England University School of Law
"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education, Erin E. Buzuvis
Faculty Scholarship
Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants …
Federal Preemption And Immigrants' Rights,
2013
Vanderbilt University Law School
Federal Preemption And Immigrants' Rights, Karla M. Mckanders
Vanderbilt Law School Faculty Publications
Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration to the exclusion of civil rights issues. States and localities assert that they should be able to use their Tenth Amendment police powers to regulate unauthorized immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy. In the middle of this debate, there is the question of whether states abrogate individual civil rights and civil liberties when exercising their police powers to regulate immigration. This article takes a detailed look at these complex issues of …
The Only Thing That Stops A Guy With A Bad Policy Is A Guy With A Good Policy: An Examination Of The Nra’S “National School Shield” Proposal,
2013
The University of Texas Rio Grande Valley
The Only Thing That Stops A Guy With A Bad Policy Is A Guy With A Good Policy: An Examination Of The Nra’S “National School Shield” Proposal, Gordon A. Crews, Angela D. Crews, Catherine E. Burton
Criminal Justice Faculty Publications
With the recent tragedy at Sandy Hook Elementary in Newtown, CT, the public and the government are looking for solutions to school violence. The National Rifle Association (NRA), a Second Amendment, pro-gun advocacy group, has proposed an “education and training emergency response program” called The National School Shield, which advocates the placement of armed security in schools. Although the program sounds provocative, serious questions complicate its plausibility, necessity, motive, and effectiveness. Furthermore, the potential policy and practical ramifications of encouraging armed security forces in U.S. schools are complex. The authors examined the proposal’s key elements from a public policy …
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes,
2013
University of Colorado Law School
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux
Publications
No abstract provided.
