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Foreword to Environmental Justice in America: Where We Have Been & Can Go
Get PDFRecognizing that recent progress is only the beginning in a long journey to rectifying past environmental injustices, this Symposium was convened to ask two critical questions regarding the state of environmental justice in America today. First, how did we get here? Second, how do we move forward?
With an eye to a future in which America lives up to Dr. Bob Bullard’s vision of environmental justice, the Symposium hosted four panel discussions, featuring scholars of legal and non-legal disciplines, attorneys and non-legal advocates, and the members of the marginalized communities on the front lines of the struggle for environmental justice.
This abstract has been taken from the author\u27s Foreword
Expanding Renewable Energy Tax Credits to Tribal Governments: How Current Legislative Proposals Will Benefit Tribes and Their Members in Their Continued Efforts to Address Climate Change
Get PDFPart I of this Article will review the history of renewable energy tax credits in this country and how they have played such a prominent role in the United States’ efforts to address climate change. Part II of this Article will describe BBBA’s [Build Back Better Act] proposal to broaden the scope of entities— including Tribes—that can take advantage of renewable energy tax credits. Finally, Part III of this Article will argue that Tribes are uniquely positioned to take advantage of BBBA’s renewable energy tax credit direct pay proposal based on their demonstrated leadership in combating climate change, the significant amount of renewable energy resource potential that is located on their lands, and existing federal programs and policies that can be further leveraged for the development of renewable resources on Tribal lands.
This abstract has been adapted from the author\u27s introduction
From Private Prejudice to Public Policy: How Religious Conservatives Use Liberalism to Control Women\u27s Bodies -- the United States and Israel in Comparative Perspective
Get PDFThe Article uses the feminist critique of the patriarchal nature of religion and liberalism, the feminist critique of flaws in political liberalism, and a socio-political analysis of the power of religious conservative groups in the United States and Israel to claim that religious conservatives use the patriarchal nature of liberalism, its inherent flaws, and conservative political power to turn private religious prejudice into public policy. Analyzing the constitutional and legal status of religion in the United States and the recent dramatic changes it has undergone, the Article shows that contrary to popular belief, and due to the aforementioned factors, the American model of separation between religion and the state cannot protect women’s rights against the religious conservative attack. The Article uses a comparative analysis of the religious conservative attack on women’s rights in Israel to show that despite the very different religion-state relations, the religious conservative attack in the two countries is similar in both method and success
Not So Objective Indicia: Why Public Polling and Ballot Referenda Could Create a More Concrete Standard for Eighth Amendment Objective Indicia Analysis
Get PDFThe Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a maturing society.” To evaluate how society views the punishment at a given time, the Court looks to “objective indicia” of the nation’s opinion.
This Note will focus on what the phrase “cruel and unusual punishment” means in the context of modern-day punishments. It will argue that the objective indicia used to evaluate the current evolving standards of decency causes too much confusion and leaves this portion of Eighth Amendment analysis up in the air. If the purpose of the objective indicia test was to capture society’s moral standards, then the test is failing to achieve its goal. With recent changes to the Supreme Court, objective indicia have been, and will likely continue to be, interpreted in ways that do not reflect current societal standards. In fact, current standards may encourage penalties, such as the death penalty, for the political reason of ensuring the punishment remains constitutional.
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Part I of this Note will discuss the history of the Eighth Amendment and what objective indicia the Court has used in the past. Part II will discuss questions raised by the current analysis of objective indicia. Finally, Part III will argue that to fix the problems with objective indicia, the evolving standards of decency test needs to be changed to allow for a more objective method of evaluation.
This abstract has been adapted from the author\u27s introduction
Equal Dignity, Colorblindness, and the Future of Affirmative Action Beyond Grutter v. Bollinger
Get PDFIn Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious decision-making should remain constitutionally permissible. The Court’s equal dignity jurisprudence in the line of cases running from Lawrence v. Texas to Obergefell v. Hodges, rooted similarly in the Court’s existing affirmative action jurisprudence, provides a basis for reconsidering the goal of affirmative action under an alternative combined due process and equality framework. Under this jurisprudence, in order to respect the equal dignity of individual persons, state actors must not dominate or deny central aspects of an individual’s personal identity. The law must grant the equality of individual persons’ liberty to define and present their personal identities free from government actions that would enshrine forms of disrespect as a matter of law. But because race can be a constitutive feature of a person’s identity, mandating colorblindness may deny a person’s equal dignity to be considered holistically for who they are.
A cornerstone of the Court’s anti-affirmative-action reasoning, through both dissents and majorities, is a principle of colorblindness rooted in a conception of procedural individualism. The Constitution, we are told, protects individuals, not groups. But as this Article demonstrates, taking individual persons seriously—as the Court urges—has the unexpected implication that government institutions cannot be foreclosed from taking a person’s racial identity seriously as well. The Court’s interpretive and ideological commitment to individual persons as the bearers of constitutional rights entails a textually based, constitutional commitment to persons who can be seen holistically in ways that do not deny their racial identity. Thus, as this Article argues, equal dignity introduces a complication for colorblindness and creates an alternative constitutional framework applicable even if the Court were to abandon the central holding of Grutter. Equal dignity would allow government actors to consider race when giving applicants affirmative consideration of their personal identities in light of their social structures and histories. As this Article introduces it, “affirmative consideration” is a process of considering the personal identities of applicants holistically in their best light, including their personal histories and constitutive features, which necessarily might include their race. To the extent that society continues to make race relevant to the lives of persons through explicit and implicit institutional practices, then to fail to consider an individual as a person for whom race has mattered under colorblindness would be to deny a relevant aspect of what makes them a unique person, and thus, would deny them the equal dignity that due process of law and equality protect. This Article explains and defends this alternative constitutional basis for reorienting antidiscrimination law according to equal dignity principles that makes possible the continuation of a modified form of race-conscious university admissions programs, even if the Court were to sunset Grutter’s diversity rationale. Reorienting constitutional doctrine under equal dignity would foreclose a strict commitment to colorblind constitutionalism, permit affirmative consideration of complete persons, and make possible a new understanding of race consciousness in official decision-making
Ford v. Where Are We?: The Revival of the Sliding Scale to Govern the Supreme Court\u27s New Relating To Personal Jurisdiction
Get PDFThis Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note’s proposed approach to hypothetical fact patterns falling within the traditional general-specific personal jurisdiction gray area that raise questions that could mark the next developments of “relating to” jurisdiction doctrine.
This abstract has been taken from the author\u27s introduction
An Interview with Jeffrey Bellin
No full textThe United States imprisons a higher proportion of its population than any other nation. Mass Incarceration Nation offers a novel, in-the-trenches perspective to explain the factors - historical, political, and institutional - that led to the current system of mass imprisonment. Jeffrey Bellin\u27s book Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How it Can Recover (Cambridge UP, 2022) examines the causes and impacts of mass incarceration on both the political and criminal justice systems. With accessible language and straightforward statistical analysis, former prosecutor turned law professor Jeffery Bellin provides a formula for reform to return to the low incarceration rates that characterized the United States prior to the 1970s
