Authors:Ashley Corbin Rice Abstract: Across the country, black students are policed in schools for their natural hair and protective hairstyles. As a result of this, students who do not conform to their school’s grooming policy or dress code may suffer stiff consequences including being suspended or expelled. The most notable federal piece of legislation in response to this issue was introduced in December 2019. The CROWN Act prohibits race-based hair discrimination on the federal level. The bill passed the House but the Senate blocked it in December 2021.Despite this recent development, states and municipalities are enacting the CROWN Act across the country. Over twenty states have versions of the race-based hair discrimination law. Even in states where the CROWN Act is not law, municipalities are enacting their own versions, as well. Nevertheless, these local laws contain a loophole which exempts religious schools from having to adhere to it.This Note argues the loophole grants religious schools the ability to penalize black students for their natural hair and protective hairstyles via grooming policies and dress codes. This, in turn, may perpetuate serious ramifications like introducing students to the school-to-prison pipeline and impacting their educational opportunities. I argue that in order to ensure black students are not negatively targeted for their hair, the loophole needs to be closed, or maybe more practical, made smaller. This Note details how this can be accomplished by having courts apply the “genuine religious principle test.” Such test would be used to analyze whether grooming policies implemented by religious schools are truly following genuine religious principles from their faith. If not, the grooming policy should be found in violation of the CROWN Act. PubDate: Mon, 17 Jun 2024 18:42:05 PDT
Authors:Amanda L. Stephens Abstract: This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply-rooted cultural norms perpetuating gender inequality, on hindering CEDAW’s ratification in the United States, as well as CEDAW’s effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations (“NGOs”) in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as gender violence against Indigenous women and workplace sexual harassment. However, even if CEDAW facilitates a state’s enactment of reforms, the enactment may not result in the reforms’ implementation because the treaty alone cannot overcome state-sanctioned misogynistic beliefs.The research contributes to the scholarly dialogue regarding CEDAW’s effectiveness in three ways. First, this Article provides a model for understanding CEDAW’s impacts on implementing gender equality measures through a comparative analysis of such measures’ implementation in Canada and India post-treaty ratification. Second, this Article uses this comparative lens to argue that, although the United States should ratify CEDAW, its potential impact rests in its ability to advocate for gender equality reforms on which society generally agrees while avoiding controversial reforms (e.g., legalizing abortion). In so doing, the research takes the scholarly debate beyond advocating for or against the United States’ ratification of CEDAW based on the assumption that it will or will not make a difference in women’s lives. Instead, this Article argues scholars cannot address that question until they can show a state has successfully implemented a CEDAW-inspired reform. Finally, this Article aims to provide peace of mind to CEDAW’s ratification opponents in the United States by suggesting that CEDAW, if eventually ratified, will only result in reforms on which there is bi-partisan support (e.g., more support for mothers and pregnant women in the military) rather than reforms on divisive issues because of entrenched patriarchal beliefs in American society. PubDate: Mon, 17 Jun 2024 18:42:04 PDT
Authors:Abby Jones Abstract: The Outer Space Treaty of 1967 asserts in no uncertain terms that no State Party to the Treaty shall claim any part of space, including any part of a celestial body like the moon. Outer space and all its components are the providence of humankind. But how can this be' As states and their private entities continue to expand the outer space market, there are plans for footholds like facilities and stations on the moon that will establish a permanent lunar presence. According to most interpretations of property law, this would establish at least some form of property right at odds with the Treaty. This dilemma is further complicated by things like changing attitudes toward states’ claims of ownership over extracted resources like minerals, the right to exclude, and even the age-old Tragedy of the Commons. Looking to the Treaty’s language and history, international treaty interpretation, and terrestrial parallels like the North and South Pole, this Note addresses that paradox. It then offers several solutions—from short-term interim measures acknowledging the issue to long-term solutions—resolving this tension and reconciling the reality of property interests on the moon with formal and customary international law. PubDate: Mon, 17 Jun 2024 18:42:04 PDT
Authors:Conner Greene Abstract: This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other constitutional amendments. This is not sustainable.The precise problem with Bruen’s test is playing out before the Supreme Court in Rahimi as the Defendant has levied a facial challenge to his conviction under 18 U.S.C. § 922(g)(8) after he was prohibited from possessing a firearm while he was the subject of a domestic violence protective order. If the Bruen test is true to form, the Court will likely struggle to find a historical analogue at the founding era—as required to uphold the statute—because domestic violence was not widely prosecuted in 1791. Nonetheless, even if it was prosecuted, it did not result in the disarmament of the perpetrator. This succinctly demonstrates a clear issue with the historical analogue test in Bruen which would wrongfully lead to increased bodily harm and violent crimes if § 922(g)(8) is held unconstitutional.The best decision the Court could make would be to return to a two-step approach for evaluating the Second Amendment where both history and means-end scrutiny apply. However, it is unlikely the Supreme Court reverses course on Bruen’s test less than two years after its implementation. Nonetheless, the Court can instead resolve this issue by turning to the United States’ history and tradition of disarming individuals believed to be dangerous. Although this approach is not without flaws, it allows the Court to easily resolve Rahimi in upholding § 922(g)(8) as constitutional without searching for a non-existent, relevantly similar historical analogue.In sum, this Article argues the Second Amendment deserves dutiful protection, but it cannot be elevated to a special status beyond what other constitutional amendments are afforded. Simply put, neither history nor means-end scrutiny alone are a sufficient guide to evaluating the Constitution. Instead, pairing the two—as seen with the Court’s evaluation of most constitutional amendments—is the appropriate remedy. The Supreme Court backed itself into a corner with the Bruen test, and Rahimi now affords it the opportunity to reverse course, reframe Second Amendment jurisprudence to a focus on an individual’s dangerousness, or strike down § 922(g)(8)’s protection of domestic violence victims. The first outcome makes the most sense, and the second solution is most likely, but the third outcome would further undermine necessary protections. PubDate: Mon, 17 Jun 2024 18:42:03 PDT
Authors:Marc Spindelman Abstract: This Article elaborates and defends Washington v. Glucksberg’s original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court’s Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.Proceeding in stages, the Article traces Dobbs’ reliance on Glucksberg before pivoting to a detailed account of Glucksberg’s original meaning, which engages and surmounts Dobbs’ undefended tally of Glucksberg. Having shown Dobbs’ reading of Glucksberg cannot be squared with Glucksberg’s text and its meaning—as cross-checked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives—the work explains Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg’s invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs’ failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights. PubDate: Mon, 17 Jun 2024 18:42:03 PDT
Authors:Orit Gan Abstract: There is a rich and diverse literature on contract law and equality, discussing whether contract law should advance social equality and if so how should contract law achieve that. However, this literature has yet to address the State’s role in combating social inequality through contract law. Filling this void this Article discusses three strategies the State can and should adopt in promoting social equality, by enforcing contracts, applying contract law doctrines, and regulating and legislating laws as background rules. After mapping these three state powers the Article further explores three test cases: enforcing nonmarital agreements, applying contract defenses in consumer contracts, and enacting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act that voids mandatory arbitration agreements in sexual harassment and sexual assault cases. Based on this analysis, the Article concludes that contract law is not purely private, but rather has public aspects; that the State is an important facilitator in promoting equality; and that the State should use its different powers in concert to promote equality. PubDate: Mon, 17 Jun 2024 18:42:02 PDT
Authors:Joshua J. Schroeder Abstract: This is the opener of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness, usually to predicate a second chance, a restart, or even an era of reconstruction. This Article opens the Courting Oblivion series by demonstrating how blind-deaf concepts of justice are fundamentally ignorant of the rights and powers of oblivion. The series’ second and third parts will explain more about how acts of oblivion can secure governmental legitimacy and why oblivion needs to be enacted for whistleblowers generally.This Article defines the legal concept of oblivion that began in the United States with the Treaty of Paris 1783. Framed as a defense of Portia’s plea in Shakespeare’s The Merchant of Venice, this Article counteracts the concept of deaf justice proposed by Daniel Kahneman, Cass R. Sunstein, and Olivier Siboney’s book Noise and the concept of blind justice asserted in Students for Fair Admissions, Inc. v. Harvard College. This Article illustrates new concepts, like reverse-gaslighting, and mines Kesha’s recent settlement with Dr. Luke for useful material to contest blind-deaf concepts of justice that almost overcame her right to move on in California and New York.Furthermore, the Article explains current judicial crises that indicate a strong need for judicial reform that can be spearheaded by an act of oblivion. Specifically, it addresses the possible demise of stare decisis through ad hoc Janus v. AFSCME balancing tests after Dobbs v. Jackson Women’s Health Organization. It also addresses the emergence of the shadow docket in Wheaton College v. Burwell and Whole Woman’s Health v. Jackson.The U.S. Supreme Court seems, at best, unwilling to resolve these issues on its own. Therefore, several of these judicial crises will need to be resolved, if at all, by Congress through judicial reform. As such, this Article concludes with the suggestion that Congress pass an act of oblivion that, in part, repeals and preempts all blind-deaf concepts of justice throughout the United States. This suggestion foreshadows the next two parts of the Courting Oblivion series, which will exhaustively explain the ideal uses and provisions of a prospective act of oblivion.At some point, everybody needs a chance to move on, to let go of the past, and to have a fresh start. The right to move on is both held individually and severally by the people as a whole. This series is dedicated to the rights of the people individually and severally to move on, to heal, and to be reborn. PubDate: Mon, 17 Jun 2024 18:42:01 PDT
Authors:Lawrence M. Friedman et al. Abstract: This Article analyzes the newspaper coverage of abortion in the late nineteenth century and early twentieth century. While coverage of abortion was spotty before the Civil War, we find that a great many articles on abortion appeared after 1850 and for the rest of the century. But by the early twentieth century, although abortion remained a common practice, newspaper coverage of the issue shrank almost to nothing. We examine why this rise and fall in abortion coverage occurred, and what these changes in press coverage tell us about the role of abortion in politics and culture. PubDate: Mon, 17 Jun 2024 18:42:01 PDT
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