The rise of the mixed-race population and its implications for our society has received attention in current discourse and media coverage. Some see it as a portent of the postracial world to come; others see it as just another challenge to which antidiscrimination law must adjust. Despite this new attention, racial mixing is not a new phenomenon by any measure. What have changed are the methods...
Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees
As immigration detention has increased in the United States over the past two decades, legislative changes have placed LGBTQ immigrants at a higher risk of being detained because of deportation policies that focus on poverty-related crime and increasingly stringent asylum requirements. Once detained, these immigrants are subjected to significantly higher rates of violence and are often denied...
Volume 58, Issue 5
Unraveling the Exclusionary Rule: From Leon to Herring to Robinson—And Back?
The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police...
Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law
At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism—the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally protected characteristic(s). Under Title VII of the Civil Rights Act...
Awakening the Press Clause
The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the U.S. Supreme Court does not explicitly recognize any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the thirty...
Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright's Fair Use Doctrine
This Comment explores the puzzle of how adjudications of fair use under the Copyright Act should be treated over time. The discussion weighs the importance of copyright law and the incentives created thereby against the policy concerns driving claim and issue preclusion. Currently, the preclusive effect of litigation that concludes in a finding of fair use may bar a copyright holder from...
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents
This Comment argues that the First Amendment should be used as a lens for determining whether something is a “natural phenomenon” for purposes of patent law. Patent law does not permit patents over natural phenomena; yet the U.S. Patent and Trademark Office (USPTO) has allowed patents over items that appear to be natural phenomena. Gene patents are one example. This Comment argues that genomic...