Volume XXIV Winter 2005 Number 1
The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics
Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality.
"Forced" v. Compulsory Arbitration of Civil Rights Claims
The Supreme Court has held that an employer and an employee may agree by contract to waive an employee's statutory right to a jury trial. Recently, the Court of Appeals for the Ninth Circuit, however, expanded this doctrine to allow an employer to condition an offer of employment on signing a contract that would waive the employee's right to a jury trial under the Civil Rights Act of 1991. These forced arbitration clauses differ from compulsory arbitration clauses in one significant respect: with compulsory arbitration clauses, the employee actually signs the agreement to arbitrate, and thus is "compelled" to live up to the bargain, whereas with forced arbitration clauses, the employee who objects to the agreement is forced to choose between signing it or losing his or her job. This article explores the Ninth Circuit's expansion of the Supreme Court's arbitration and civil rights decisions in EEOC v. Luce Forward and discusses why the majority in that case was misguided. It demonstrates how the court relied on distinguishable case law and ignored a potential reading of the statute that is consistent with both its text and its legislative history. The article also offer opportunities for the Supreme Court to clarify the intent of the civil rights statutes as they relate to waiving the right to a jury trial by proposing a balancing approach that is fair to both the employer and the employee and is consistent with the text and legislative history of the civil rights statutes.
Beyond the Reach of Juvenile Justice: The Crisis Facing Unaccompanied Immigrant Children Detained by the United States
This article examines U.S. detention policy and practice toward unaccompanied immigrant juveniles. First, the Article traces the history of detention of these minors from the 1980s to the present. It discusses the settlement agreement of Reno v. Flores, which established a new policy based on principles of juvenile justice. The Article reveals how the Immigration and Naturalization Service's failure to fully implement this policy led to a human rights crisis. Second, the author argues that Congress should create legislation, modeled on federal and state juvenile justice statutes, to meet the needs and protect the rights of unaccompanied immigrant children. Third, the Article analyzes the strengths and weaknesses of the proposed Unaccompanied Alien Child Protection Act of 2003. Finally, the Article proposes a strategy to ensure the effective implementation and enforcement of a new policy.
The Americans With Disabilities Act and Correcting Discrimination of the Mentally Disabled in the Pre-Trial Process
Stories of the problems faced by persons with mental illness in the criminal justice system range from tragic to frustrating. These stories are all too common and reflect the difficulties that many people with a mental illness face in society today. Failures to properly address these problems have led to jails and prisons in the United States becoming de facto mental hospitals. While there is no consensus on the reasons, hundreds of thousands of individuals with a mental illness have been incorrectly labeled as criminals based on manifestations of their illnesses. Additionally, surprisingly little case law has addressed the phenomenon of the criminalization of persons with a mental illness. This Article argues that the criminalization of persons with a mental illness is a violation of the ADA, and demonstrates how the ADA can be used to create a systemic change in the treatment of persons with mental illness and help end the discrimination against such persons in the arrest, post-arrest, and pre-trial processes.
Since September 11, 2001, Arabs and Muslims in America have faced increasing infringements on their civil rights and liberties because civil rights advocates have failed to address these groups' severe isolation from dominant American institutions of power and culture. Specifically, many Arabs and Muslims are terrified to publicly discus their deep connection with and support for Palestinians. Arabs and Muslims today are asked to make the same concession for a civil rights coalition that blacks made to Jewish progressives in 1967: silence on or support for Israel. A structural analysis of black-white race relations, against the concurrent family drama of blacks and Jews shows that Arabs and Muslims feel pressure to exist in a way that does not interfere with the deep recognition of the similarities between the historical oppression of Jews and African Americans. Like the potential for race consciousness to talk about race without advocating racism, the 1967 compromise should be re-examined to create a "Middle East consciousness" which would allow its adherents to talk about Israel without advocating anti-Semitism, allowing for good-faith coalitions between Arabs, blacks, and Jews and to possibly strike a just peace between Israelis and Palestinians.