The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law最新文献

{"title":"Schuette and Antibalkanization","authors":"S. Weiss, D. Kinder","doi":"10.2139/SSRN.3245673","DOIUrl":"https://doi.org/10.2139/SSRN.3245673","url":null,"abstract":"In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects. Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan ballot initiative banning affirmative action arose principally from feelings of racial resentment, not a desire for racial comity. The ballot initiative did not mitigate racial divisiveness but did just the opposite, exacerbating racial division in the state. We conclude by considering what Schuette and these empirical findings mean for affirmative action, for the political process doctrine, and for the antibalkanization principle.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"88 1","pages":"693"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76461555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Jim Crow's Equal Protection Potential","authors":"Katherine Macfarlane","doi":"10.2139/SSRN.3131006","DOIUrl":"https://doi.org/10.2139/SSRN.3131006","url":null,"abstract":"In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless stops. Though the defendant in Strieff was white, Sotomayor emphasized that “it is no secret that people of color are disproportionate victims of this type of scrutiny,” and mentioned The New Jim Crow in support of her conclusions about the role race plays in suspicionless stops. The New Jim Crow, published in 2010, has sold over 750,000 copies. It describes how the criminal justice system disproportionately targets and incarcerates black men. The book has inspired a popular movement to end mass incarceration and the racial caste system mass incarceration has created. In addition to its appearance in Strieff, The New Jim Crow was cited in United States v. Nesbeth, a well-publicized 2016 sentencing order from the Eastern District of New York in which the court imposed probation instead of the incarceration recommended by the federal sentencing guidelines. The New Jim Crow has also been cited to explain the unfair collateral consequences faced by those convicted of drug crimes, as well as convictions’ disproportionate racial impact. \u0000 \u0000This essay is the first to study The New Jim Crow’s equal protection potential. The New Jim Crow’s presence in federal decisions is reminiscent of the Supreme Court’s citation to social science research in Brown v. Board of Education. This essay considers whether The New Jim Crow sits alongside canonical works of social science research considered by the Supreme Court in cases like Brown. It examines how The New Jim Crow is sometimes cited by the federal courts in passing, as a nod to a work that has infiltrated popular culture, but not always as evidence that influences case outcomes. Noting its appearance in Judge Scheindlin’s orders finding that the NYPD’s use of stop-and-frisk encouraged unconstitutional racial profiling, it questions whether The New Jim Crow could successfully support equal protection claims. It concludes that citations to The New Jim Crow represent soft law, albeit soft law with hard law potential.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"1 1","pages":"61"},"PeriodicalIF":0.0,"publicationDate":"2018-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90965736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Federal–state Standing Gap: How to Enforce Federal Law in Federal Court without Article III Standing","authors":"P. Salib, David K. Suska","doi":"10.2139/SSRN.3023347","DOIUrl":"https://doi.org/10.2139/SSRN.3023347","url":null,"abstract":"You, too, can sue Donald Trump under the Emoluments Clause! \u0000Since Inauguration Day several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Manhattan would constitute an unlawful emolument. \u0000Most commentators have thrown cold water on the prospect of any plaintiff prevailing. The trouble, most argue, is that plaintiffs cannot demonstrate a concrete and particularized injury from any putative violation of the Emoluments Clause. In legalese, they lack Article III standing. \u0000What no one has suggested is that plaintiffs do not need Article III standing to enforce the Emoluments Clause against Trump. Everyone assumes that these suits must live or die under federal standing doctrine. But, as we argue, Article III standing is essentially never a barrier to enforcing federal law. Indeed, plaintiffs may even win a merits ruling from the U.S. Supreme Court without ever possessing the elements of Article III standing. \u0000If we are right, it is a big deal. Federal standing doctrine is understood to restrain federal courts’ from performing an advisory function. It also checks congressional power, preserving the Executive’s constitutional prerogative to enforce federal law. We challenge this received wisdom and argue that the Supreme Court has — perhaps unwittingly — created a route by which litigants may circumvent Article III’s standing requirements, diminishing the doctrine’s force. This has implications far beyond the Emoluments Clause; many constitutional and statutory provisions have long been thought effectively unenforceable because of the strictures of Article III standing. \u0000This Article charts the course that no-standing plaintiffs may follow to enforce federal law and land in the U.S. Supreme Court. It also introduces a new term to the legal lexicon: the Federal–State Standing Gap. This term describes the space between Article III standing doctrine and the comparatively lax doctrine of many states. We did not discover this space; everyone who has taken or taught a course on federal jurisdiction knows about it. But we do think it has gone underappreciated. And that is the gap in the literature that this Article begins to fill.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"31 1","pages":"1155"},"PeriodicalIF":0.0,"publicationDate":"2017-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78906989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell","authors":"T. Massaro","doi":"10.2139/SSRN.2638552","DOIUrl":"https://doi.org/10.2139/SSRN.2638552","url":null,"abstract":"In 1960, Charles Black wrote a justly famous defense of Brown v Board of Education that he described as “awkwardly simple.” His eloquent, influential work offers an equally compelling defense of the Court’s recent decision in Obergefell v. Hodges. This Essay takes the Black argument as a template, and imposes onto it the same-sex marriage decisions. It also imagines how Black might respond to Chief Justice Robert’s dissent in Obergefell.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"252 1","pages":"321"},"PeriodicalIF":0.0,"publicationDate":"2017-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72889690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privatizing Family Law in the Name of Religion","authors":"R. Wilson","doi":"10.2139/SSRN.2840812","DOIUrl":"https://doi.org/10.2139/SSRN.2840812","url":null,"abstract":"This Essay examines a movement across the world to allow fundamentalist religious norms, rather than state law, to govern family matters associated with divorce and inheritance. Such religious norms often depart significantly from the state’s protections for vulnerable dependents at two significant points: in divorce and in death. This Essay explores the risks to women and children, two particularly vulnerable groups, when religious couples enter into marriages that are recognized religiously, but not civilly, leaving little opportunity for state oversight. Without state oversight, women are bound by a religious community’s norms, a phenomenon now occurring in the Sharia courts that operate in Great Britain. These courts apply Islamic, not British, law to divorce and inheritance. The Essay also examines the system of shared jurisdiction in Western Thrace, where three Mufti decide family disputes for a Muslim minority. In both systems, the fundamentalist religious norms provide considerably less protection to individuals in two periods of great need, upon divorce and the death of a spouse. The Essay contends that the state plays a crucial role in protecting traditionally vulnerable groups. It shows that if certain schools of Islamic law govern divorce proceedings, women face the loss of custody or their adolescent children and near certain poverty. The operation of religions norms undercuts a woman’s ability to exit marital relationships, especially violent ones. Under Islamic law, women are left financially at risk upon their husband’s death. Therefore, policymakers should proceed cautiously before expanding the opportunity for the application of religious norms in instances that may leave women and children trapped in poverty or abusive relationships.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"41 1","pages":"925"},"PeriodicalIF":0.0,"publicationDate":"2016-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91371545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional","authors":"G. M. Parsons","doi":"10.2139/SSRN.2698183","DOIUrl":"https://doi.org/10.2139/SSRN.2698183","url":null,"abstract":"A corrosive concept has infected the roots of our democracy. This insidious notion, which has eluded judicial grasp, is that legislators may constitutionally draw electoral districts for the purpose of securing their own victory (“incumbency advantage”) or the victory of their party (“political advantage”). Political gerrymandering is popularly perceived as being disreputable but legal. This is only half-true. The Supreme Court has explicitly recognized that political gerrymandering may offend constitutional principles. Unfortunately, it has failed to articulate when this is the case and why. This Article seeks to answer those questions.A careful reading of Supreme Court precedent exposes that electoral advantage is not a legitimate state interest. Those who claim legal cover to pursue political gain through the redistricting process have ignored three critical distinctions. These conceptual snares have spawned a set of false premises that this Article aims to elucidate and dispel: (1) the assumption that legislators’ personal considerations are synonymous with the legislature’s state interests; (2) the assumption that the constitutionality of political gerrymandering turns on the degree of “political interest” sought rather than the type of “political interest” sought; and (3) the assumption that there is one political gerrymandering offense rather than two: dilution and sorting.This Article canvasses the history of redistricting case law and provides precedential authority for judges and litigants alike to identify and uproot the nettlesome notions that have plagued political gerrymandering claims to date. Naming these misconceptions points a way out of the wilderness and cuts a clear course through the political thicket. The Article proceeds as follows: Part I surveys the background and current state of redistricting law; Part II explores the analytical pitfalls that have plagued political gerrymandering claims to date; and Part III proposes a path for pursuing such claims going forward.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"2016 1","pages":"1107"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73321546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Trouble with Racial Quotas in Disparate Impact Remedial Orders","authors":"Wencong Fa","doi":"10.2139/SSRN.2670177","DOIUrl":"https://doi.org/10.2139/SSRN.2670177","url":null,"abstract":"Justice Scalia’s concurring opinion in Ricci v. DeStefano highlighted severe conceptual tensions between the Equal Protection Clause of the Fourteenth Amendment, which protects individuals from racial discrimination, and disparate impact liability, which protects racial groups from adverse effects. This year’s Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. suggested that disparate impact liability under the Fair Housing Act was constitutionally unproblematic because successful fair housing lawsuits over the past four decades have only led to race-neutral remedial orders enjoining the practice causing the disparate impact. This Article analyzes the constitutionality of another disparate impact remedy: the imposition of racial quotas. Employment lawsuits brought under Title VII of the Civil Rights Act of 1964 have resulted in such remedies, potentially opening the door to an as-applied constitutional challenge arguing that the imposition of these remedies violates the Equal Protection Clause. The outcome will likely hinge upon the standard of review. Many have argued that a deferential standard is appropriate in light of federal court decisions approving the use of race in census questionnaires, suspect descriptions, and school zoning. This Article challenges that notion, and argues that the proper standard is strict scrutiny.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"7 1","pages":"1169"},"PeriodicalIF":0.0,"publicationDate":"2015-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78444383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deconstructing Juryless Fact-Finding in Civil Cases","authors":"Shaakirrah R. Sanders","doi":"10.2139/ssrn.2638758","DOIUrl":"https://doi.org/10.2139/ssrn.2638758","url":null,"abstract":"Compensatory damage caps mandate juryless fact-finding in common law-based civil cases and lessen the jury’s traditional and historic role as injury valuator. This Article explores juryless fact-finding in civil cases by turning to recent interpretations of the Sixth Amendment Criminal Jury Trial Clause at criminal sentencing. At first blush, compensatory damage caps and criminal sentencing appear to have little in common. Caps reduce a jury’s damage findings to a fixed amount. Some sentencing guidelines designated which facts are necessary to support a particular sentence. Yet, both remove the jury during a significant part of a civil or criminal case. In civil cases the jury is removed from the “damages” phase of the litigation; in criminal cases, from the “punishment” phase of the \"criminal prosecution.\" As a result, compensatory damage caps and certain forms criminal sentencing guidelines lessen the jury’s role as fact-finder and intrude on the jury’s verdict or decree.Recent Sixth Amendment jurisprudence has recently rejected mandatory juryless fact-finding for purposes of fixing punishment at criminal sentencing hearings. Seventh Amendment jurisprudence remains undeveloped on the clash between caps and the civil jury, but the Sixth Amendment offers three lessons about common law criminal juries that should apply in the civil context. First, modern procedures cannot significantly alter certain common law characteristics of the jury trial right. Second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases. Third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance a states’ dual interest to protect both civilly liable defendants and severely injured plaintiffs.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"47 1","pages":"235"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77298242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Uncapping Compensation in the Gore Punitive Damage Analysis","authors":"Shaakirrah R. Sanders","doi":"10.2139/ssrn.2571399","DOIUrl":"https://doi.org/10.2139/ssrn.2571399","url":null,"abstract":"BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore identifies three guideposts to determine whether a jury’s award of punitive damages are excessive: (1) the degree of reprehensibility of defendant’s conduct; (2) the disparity between compensatory and the punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases. This Article argues that Gore’s second guidepost is based on a false premise as it applies in States that have capped compensatory damage awards: that the plaintiff has been fully reimbursed for actual losses. This Article contributes to existing scholarship on state law compensatory damage caps and the Gore punitive damage analysis by identifying the defect the former produces in the latter. This Article maintains that capped compensatory damages in State law tort actions also caps the Gore punitive damage analysis. This Article advocates uncapping Gore where state procedures do not allow trial judges the opportunity to review a civil jury’s award for reasonableness, where the civil jury is not informed of the cap, or where the civil jury has no opportunity to reconsider an award that exceeds the cap. Without such protections, Gore fails its dual obligation in civil litigation to protect civil defendants against unreasonably high awards and guard severely injured plaintiffs against arbitrarily low awards.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"14 1","pages":"37"},"PeriodicalIF":0.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83036367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Incorporation, Total Incorporation, and Nothing But Incorporation?","authors":"Christopher R. Green","doi":"10.2139/SSRN.2567437","DOIUrl":"https://doi.org/10.2139/SSRN.2567437","url":null,"abstract":"Kurt 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 broadly guarantee equality 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 inequality among citizens of the United States. Lash and I agree about a great deal, but this Essay provides a focused explanation of the clash between our two books.Searchable electronic databases have produced an amazing variety of new evidence and argument related to the Fourteenth Amendment’s original meaning and the enumerated-right controversy. Lash’s book shows vividly that there is an enormous amount that Black, Frankfurter, Fairman and Crosskey failed to uncover. Here, I raise six problems for Lash’s enumerated-rights-only view: (a) the gulf between the constitutional needs of the Founding and Reconstruction, (b) the inherent unabridgeability of federally-enumerated rights through state action, (c) textual and historical complications for sharply distinguishing Article IV from the Fourteenth Amendment, (d) equality-focused interpretations of the Louisiana Cession language and of the Privileges or Immunities Clause, explaining the Clause in terms of the Civil Rights Act of 1866, (e) 1866 disputes over voting rights and indefiniteness, incomprehensible on the enumerated-rights-only view, and (f) subsequent-interpretation evidence, especially the use of the enumerated-rights-only view against the Civil Rights Act of 1875.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"26 1","pages":"93"},"PeriodicalIF":0.0,"publicationDate":"2015-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91363679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}