CategoryDiscourse

This Essay uses the opportunity to examine Roe v. Wade forty years after it was decided and Lawrence v. Texas ten years after it was decided as a platform from which to analyze the status of the civil rights paradigm in American law. A comparison of the two decisions illustrates an important and new point about how civil rights law is deployed to achieve very different goals. What civil rights...

This Essay shows how LGBT rights advocates successfully transformed civil unions and domestic partnerships from a sign of equality into a marker of inequality. The deployment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift. Constitutional commitments provided the language through which advocates could embrace civil...

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the forty years since Roe, the U.S. Supreme Court has come to understand the abortion right as an equality right, as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time...

This Essay responds to an article by Hila Shamir previously published in the UCLA Law Review, in which she suggests that human rights has failed as a framework for addressing human trafficking and that instead a labor model would be more successful. Although her article identifies potentially important benefits of a labor perspective, the binary framework it establishes, pitting human rights and...

In her article Marriage This Term: On Liberty and the “New Equal Protection,” Katie Eyer suggests that this term will likely provide a crucial test determine whether due process or equal protection guarantees will be the preferred basis on which minorities will be able to protect themselves from majoritarian discrimination. Assuming that the Court reaches a protective result on the merits in...

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators...

In the pending case Myriad Genetics v. Association for Molecular Pathology, the U.S. Supreme Court will consider the patentability of human genes under the “product of nature” doctrine. Patentable subject matter is generally held to encompass materials and artifacts created by humans, and not that which exists independently in nature. However, it is not clear that this is a meaningful or helpful...

The so-called “due diligence” rule, which excuses prosecutors’ compliance with Brady v. Maryland if the defense could have obtained the exculpatory evidence on its own, is only a symptom of the greater problem ailing the American criminal justice system. The real problem is that prosecutors and defense counsel generally do a terrible job collaborating because of the basic nature of our...

Amendment 767 to the U.S. Sentencing Guidelines Manual (Guide-lines), effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a mandatory minimum sentence. The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that the minimum...

The radical overhaul of legal education espoused in Professor Brian Tamanaha’s new, widely read book Failing Law Schools would represent a disastrous step backward in legal education. Tamanaha and his supporters argue that the current crisis in legal education—rampant unemployment among debt-laden law graduates and plummeting law-school applications—requires a dramatic reduction in law-school...

Despite the serious nature of court orders, judicial opinions can be humorous. While some decisions are funny simply because of their facts, judges have also employed puns, penned poems, cited songs, and formulated fables to convey legal conclusions creatively. Scholars and jurists debate the propriety of such humor. However, witticisms and quips continue to find their way into legal reporters...

The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it”—that we...

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insuffi cient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research...