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“Immutability” And Stigma: Towards A More Progressive Equal Protection Rights Discourse, M. Katherine Baird Darmer 2010 American University Washington College of Law

“Immutability” And Stigma: Towards A More Progressive Equal Protection Rights Discourse, M. Katherine Baird Darmer

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Cuomo V. Clearing House Association: Protecting Minorities From Discriminatory Lending Practices By Upholding States' Right To Enforce Predatory Lending Laws, Elvira Pereda 2010 American University Washington College of Law

Cuomo V. Clearing House Association: Protecting Minorities From Discriminatory Lending Practices By Upholding States' Right To Enforce Predatory Lending Laws, Elvira Pereda

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Congress Needs To Repair The Court's Damage To § 1983, Ivan E. Bodensteiner 2010 Valparaiso University School of Law

Congress Needs To Repair The Court's Damage To § 1983, Ivan E. Bodensteiner

Law Faculty Publications

Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court's misinterpretation of the 1871 statute. This anomaly is the result of several defenses created by the Court, including absolute and qualified immunity, the rejection of respondeat superior liability for municipalities, and the expansion of sovereign immunity, based, in part, on a misinterpretation of the Eleventh Amendment. Several other rulings of the Court narrow the circumstances under which private parties are subject to § 1983 liability, refuse to exempt § 1983 actions ...


Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland 2010 Valparaiso University School of Law

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.


Book Review: What Comes Naturally: Miscegenation Law And The Making Of Race In America, Taunya L. Banks 2010 University of Maryland School of Law

Book Review: What Comes Naturally: Miscegenation Law And The Making Of Race In America, Taunya L. Banks

Faculty Scholarship

No abstract provided.


What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell 2010 University of Colorado Law School

What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell

Articles

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King's religious values were not ...


Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya 2010 Univ. of Connecticut School of Law

Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya

Faculty Articles and Papers

This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read ...


Racial Etiquette And Social Capital: Challenges Facing Black Entrepreneurs, Nicole S. Dandridge 2010 Michigan State University College of Law

Racial Etiquette And Social Capital: Challenges Facing Black Entrepreneurs, Nicole S. Dandridge

Faculty Publications

No abstract provided.


Reconciling Equal Protection And Federal Indian Law, Bethany Berger 2010 University of Connecticut School of Law

Reconciling Equal Protection And Federal Indian Law, Bethany Berger

Faculty Articles and Papers

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian ...


Searching For Remedial Paradigms: Human Rights In The Age Of Terrorism, Frances Howell Rudko 2010 University of Massachusetts School of Law - Dartmouth

Searching For Remedial Paradigms: Human Rights In The Age Of Terrorism, Frances Howell Rudko

Faculty Publications

Nine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists' extreme human rights violations without violating international humanitarian law.


Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks 2010 University of Colorado Law School

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Articles

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the ...


The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton 2010 University of Colorado Law School

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

Articles

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent ...


Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux 2010 University of Colorado Law School

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Articles

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is ...


Shifting Burdens: Discrimination Law Through The Lens Of Jury Instructions, Catherine T. Struve 2010 University of Pennsylvania

Shifting Burdens: Discrimination Law Through The Lens Of Jury Instructions, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen 2010 American University Washington College of Law

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Gimme Some More: Centering Gender And Inequality In Criminal Justice And Discretion Discourse, Shaun Ossei-Owusu 2010 American University Washington College of Law

Gimme Some More: Centering Gender And Inequality In Criminal Justice And Discretion Discourse, Shaun Ossei-Owusu

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Contemporary Immigration Detention Practices In The United States: A Study In Sociology And Human Rights, Robert D. Goodis 2010 Bard College

Contemporary Immigration Detention Practices In The United States: A Study In Sociology And Human Rights, Robert D. Goodis

Selected Senior Projects Fall 2010

“Contemporary Immigration Detention Practices in the United States: A Study in Sociology and Human Rights” is a study on the detention and incarceration of immigrants, with particular focus on the effects and implications of detaining refugees and asylum-seekers, in the United States. The study reports on two specific detention facilities—the Northwest Detention Center in Tacoma, Washington, and the T. Don Hutto Family Residential Facility (a.k.a. T. Don Hutto Residential Center) in Taylor, Texas—as sociological case-studies, primarily presented as legal briefs, to explore how contemporary detention practices relate to the legal structure and ideals established by domestic ...


Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn 2010 Western New England University School of Law

Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn

Faculty Scholarship

This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears ...


Laws Of Race/Laws Of Representation: The Construction Of Race And Law In Contemporary American Film, 11 Tex. Rev. Ent. & Sports L. 219 (2010), Cynthia D. Bond 2010 John Marshall Law School

Laws Of Race/Laws Of Representation: The Construction Of Race And Law In Contemporary American Film, 11 Tex. Rev. Ent. & Sports L. 219 (2010), Cynthia D. Bond

Faculty Scholarship

Popular film has a lot to teach us about social narratives of law. Both law and film are story-telling, narrative systems. Accordingly, films about law are "overdetermined" in terms of narrative: they are stories about stories. Race is also a narrative system in which visual representation is key. The significance of the visual apprehension of race is deeply relevant to the legal construction of race as well. For example, in early citizenship cases and racial "passing" cases which persisted through the latter part of the 2 0th century. Since society constructs racial categories in large part by visual identification and ...


Rediscovering Oyama V. California: At The Intersection Of Property, Race, And Citizenship, Rose Cuison Villazor 2010 Hofstra University School of Law

Rediscovering Oyama V. California: At The Intersection Of Property, Race, And Citizenship, Rose Cuison Villazor

Washington University Law Review

Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California's Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At the time, the country's naturalization law prohibited Japanese nationals from becoming U.S. citizens. Thus, the Alien Land Law applied primarily to Japanese nationals and Japanese Americans. Critically, the Supreme Court in Oyama recognized that the state's attempted taking ...


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