Tag: Essay

Procreation, Harm, and the Constitution

Carter Dillard - Animal Legal Defense Fund

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances?  Second, can the state justify a legal prohibition on… Read More »

Constitutional Agnosticism, Religious Pluralism, and the Problem of Community

Steven D. Smith - University of San Diego School of Law

The American Constitution, we are told, is a “godless” document. More precisely, it is an agnostic document; it nowhere makes any reference, whether affirming or denying, to God.  So what?
Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic… Read More »

Protect Us, Lord, from Title VII: A Response to Gelbach, Klick, and Wexler

Richard A. Epstein - New York University Law School

In their recent article, Passive Discrimination, Jonah Gelbach, Jonathan Klick, and Lesley Wexler (hereafter “GKW”) offer yet another way to pile additional liabilities on hapless employers for race or sex discrimination under Title VII of the Civil Rights Act of 1964. Their article is ingenious because it identifies a mechanism—previously discussed… Read More »

Passive Discrimination

Jonah Gelbach & Lesley Wexler & Jonathan Klick

In this Editorial, we present a distinct mechanism of employer discrimination largely ignored by scholars and regulators alike.  What we term “passive discrimination” involves an employer’s use of wage and benefits packages that exploit observed, systematic group-level preference heterogeneity in order to induce worker sorting such that members of a… Read More »

Telling Law Students What’s Ahead

Anita Bernstein - Brooklyn Law School

Group-ride bicyclists start their mornings with a “route rap.”  Before an extended ride begins, participants gather round, standing next to their bikes, and listen to their leader describe the itinerary ahead.  They might each hold a copy of a cue sheet that recites turns, landmarks, risks, and stopping points.  The… Read More »

Listening to History? Parents Involved, Brown, and the Colorblind Constitution

Christopher W. Schmidt - Chicago-Kent College of Law

“[W]hen it comes to using race to assign children to schools,” Chief Justice Roberts pronounced in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), “history will be heard.”  History indeed earned star billing in this controversial decision in which a five-Justice majority struck down race-based school… Read More »

Not So Private Takings: A Response to Abraham Bell’s Private Takings

Richard A. Epstein - New York University Law School

Abraham Bell’s instructive article begins with his conscious decision to distance himself from the “popular firestorm” that greeted the Supreme Court’s 2005 decision in Kelo v New London. In so doing, however, he reveals a tin ear to the public protests, which contain much good sense. As one author who has… Read More »

Private Takings

Abraham Bell - Bar Ilan University Faculty of Law

The popular firestorm surrounding the Supreme Court’s recent ruling in Kelo v City of New London focused on public incomprehension that the government may simply take property from one private property owner and transfer it to another private owner.
The legal community found the ruling less than surprising—it is well known… Read More »

The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal - Southern Illinois University School of Law

Imagine that you are mayor of a small town that has a picturesque public park, where your residents come to escape the hustle and bustle of everyday life. To make the space inviting, you have built a gazebo, a picnic area, and a playground.  You have also allowed a local… Read More »

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