Blog

The lecture notes are here.

Race & Gender Discrimination

• Loving v. Virginia (1373-1379).
• Sex Discrimination (1407).
• Craig v. Boren (1407-1416).
• United States v. Virgnia (1416-1424).
• Beyond Race and Sex (1425-1428).
• “Fundamental Interests” (1441-1443).

Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.

Here is a video of a documentary about their case.

Reed v. Reed

The home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first female cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.

I wrote this post on February 10, 2012 in eager anticipation that within three years, I would have a hoverboard. Alas, I predict it was not meant to be. Well, here’s hoping this blog still exists in 2015!

Update (2/23/2012): This is a start. Keep up the good work:

Update: 11/16/12- Slate tells me I won’t have a hoverboard.

And yes, we still have nearly three years until “Future Day,” social-media hoaxes notwithstanding. But perhaps it’s time we all faced up to the fact that we’re not getting our hoverboards—not by 2015, and quite possibly not in our lifetimes. At least, not without a DeLorean time machine.

Update: 4/30/13 – Popular Mechanics tells me I won’t have a hoverboard unless we can figure out superconductors!

Superconductivity may be the most practical way to achieve levitation, at least that engineers know about today. It doesn’t allow for the freedom of the Back to the Future Mattel board, which can move freely in all directions (but, for whatever reason, levitates but lacks propulsion over water).

Update: 12/27/14 – Vulture details why we won’t have a hoverboard anytime soon.

This fall not only marked the one-year countdown to October 21, 2015, the date on which Back to the Future II’s Marty and Doc arrive in the future, but it saw the announcement of the Hendo Hoverboard. Despite some obvious limitations(it only hovers over one particular surface), the gadget brings us a little closer to the 2015 imagined by the 25-year-old sequel.

…

We’re talking about a real hoverboard here, not Hendo’s hoverboard, which requires a specialized surface to hover. In BTTF II, the hoverboard Marty borrows from a young girl works on any surface except water. How far away is that? Frey is firmly noncommittal. “Ten years, 20 years, who knows?” he says. He’s not so quick to discount Hendo’s innovation, though, saying, “It’s an interesting breakthrough in thinking that dramatically brings a BTTF II–type device much closer.”

 

A regular-reader emailed me to note that 18 U.S.C. § 116, which criminalizes female genital mutilation, has no jurisdictional hook concerning interstate commerce, or any other enumerated power.

(a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
(b) A surgical operation is not a violation of this section if the operation is—
(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(2) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
(c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.
(d) Whoever knowingly transports from the United States and its territories a person in foreign commerce for the purpose of conduct with regard to that person that would be a violation of subsection (a) if the conduct occurred within the United States, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.

A prosecution under this statute would be unconstitutional under United States v. Lopez. Genital mutilation by itself, like gun possession, is not an economic activity. Absent a jurisdictional hook–show a substantial effect on interstate commerce, Congress has no authority over the inherently intrastate act. This statute was enacted in 1996–the year after Lopez–and amended in 2013. Further, the fact that section (d), concerning the transportation of someone involved with genital mutilation has a the jurisdictional hook, but section (a) does not, suggests Congress knows the difference.

Helpful note to any defense lawyers who are involved with such a case.

Contrast this law with the federal partial birth abortion statute (18 U.S.C. § 1531), which does include the jurisdictional hook.

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself

Update: On Twitter, Jay Wolman writes in to note that the jurisdictional hook is in a different section, 18 U.S.C 116 note. Yes, you remember the notes, don’t you. It is justified based on Section 5 of the 14th Amendment and the Treaty Clause:

SEC. 645. CRIMINALIZATION OF FEMALE GENITAL MUTILATION.

    (a) <<NOTE: 18 USC 116 note.>>  Findings.--The Congress finds that--
            (1) the practice of female genital mutilation is carried out 
        by members of certain cultural and religious groups within the 
        United States;
            (2) the practice of female genital mutilation often results 
        in the occurrence of physical and psychological health effects 
        that harm the women involved;
            (3) such mutilation infringes upon the guarantees of rights 
        secured by Federal and State law, both statutory and 
        constitutional;
            (4) the unique circumstances surrounding the practice of 
        female genital mutilation place it beyond the ability of any 
        single State or local jurisdiction to control;
            (5) the practice of female genital mutilation can be 
        prohibited without abridging the exercise of any rights 
        guaranteed

[[Page 110 STAT. 3009-709]]

        under the first amendment to the Constitution or under any other 
        law; and
            (6) Congress has the affirmative power under section 8 of 
        article I, the necessary and proper clause, section 5 of the 
        fourteenth Amendment, as well as under the treaty clause, to the 
        Constitution to enact such legislation.

Today we will begin covering covenants, and spend most of the class of Village of Euclid v. Ambler Realty.

The lecture notes are here.

Here is the text of the 5th Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here is the text of the Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This diagram will be helpful to explain Euclid.

As best I can tell, the lot is currently bounded by E 196th St and E 204th St, between Euclid Avenue and the train tracks.

Here is the map.

View Larger Map

It seems to be some kind of business park today. Here are some photographs of what the lot looks like today, courtesy of Michael Alan Wolf.

And in case you were wondering (I know you were!) what the Supreme Court looked like in 1926, here it is:

Chief Justice William Howard Taft Associate Justices Oliver W. Holmes, Jr. Willis Van Devanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford Harlan Fiske Stone

Here is some information about Houston’s lack of zoning.

• Changing the plans America’s oil capital is throwing up a few environmental surprises
• Zoning Without Zoning
• Houston, New York Has A Problem (bonus for finding the reference to where I went to high school)
• Land Use in the Unzoned City
• How Overregulation Creates Sprawl (Even in a City without Zoning) – pp. 1-15
• Four Land Vignettes From (Unzoned?) Houston – pp. 1-9, 25-28

View Larger Map

There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.

Also, here is a graph that illustrates how eminent domain takings focus on areas of minorities and those with low education. It will be relevant to our discussion on zoning.

Here is a February 2013 Houston Chronicle article on mobility in Houston, based on a Texas A&M report:

• $1,090: Cost to each commuter in Houston, due to congestion, in lost time and fuel.
• 23: Gallons of fuel wasted in 2011, per motorist, in the Houston area because of congestion.
• 5.75: Hours daily that Houston is a “rush hour” commute pattern.
• 6: Houston’s rank for having the nation’s most stressful commute.
• 81.9 million: Number of unlinked public transportation trips, a 20 percent decrease from 2006.

Washington D.C. is ranked with the worst traffic in America,followed by Los Angeles, San Francisco, and New York.

Here is a good comparison of New York City & Waco.

The lecture notes are here.

Affirmative Action

• Affirmative Action (1386-1389).
• Grutter v. Bollinger (1389-1401).
• Notes (1401-1405).
• Fisher v. University of Texas, Austin (2013).
• Affirmative Action Outside Education (1405-1407).
• Schuette v. Coalition to Defend Affirmative Action (2014).

Palmer v. Thompson

Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.

Michigan Affirmative Action Cases

This is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger:

This is the University of Michigan Office of Undergraduate Admission.

This is the University of Michigan Law School Admission Office.

Abigail Fisher v. University of Texas, Austin

This is Abigail Fisher of Sugarland, Texas

This is the University of Texas, Austin.

Also, this story from University of California at Berkeley Law School is relevant to our discussion.

Berkeley Law’s ‘critical mass’ policy results in racial divisions

In an effort to create a more positive experience for underrepresented-minority students, the UC Berkeley School of Law has implemented a new “critical mass” policy, which has resulted in some racial divisions in the first-year classes.

The policy was criticized earlier this month in an article published on the blog Above the Law Redline, which stated that students at the law school are being racially segregated.

At Berkeley Law, incoming students are divided into nine smaller sections, called mods, in which first-year law students take their introductory classes. These nine mods then compose three super-mods, larger groups in which students also take certain courses. This year, the administration placed more underrepresented-minority students into certain mods in order to create a “critical mass” but left one super-mod entirely devoid of black students.

The administration has responded to students’ concerns, saying the critical mass policy, which aims to ensure that a certain number of underrepresented-minority students are in each classroom, was a response to previous concerns with the mods.

According to Berkeley Law Dean Sujit Choudhry, last year, the school hosted focus groups of students, faculty and staff in which underrepresented-minority students reported feeling isolated as the only members of their racial groups in their classes. Choudhry said the benefits of the critical mass system are widespread.

“It promotes robust conversations and reveals the diversity of viewpoints within racial groups,” Choudhry said in an email sent out to the law school community. “And it can help dispel stereotypes that others may hold because people see that not everyone from a particular group is alike.”

Four of the smaller mods had critical masses of black students, but all mods included underrepresented-minority students. So while one of the super-mods had no black students, all mods had some Hispanic and Asian American students.

According to the UC Berkeley chapter of La Raza Law Students Association, studies by researchers such as Executive Vice Chancellor and Provost Claude Steele have shown that being the only member of a certain racial group in a classroom can negatively affect a student’s abilities to perform well academically. Such “solo status” places additional pressure on underrepresented minorities to perform well as the representatives of their respective racial or ethnic groups.

Isolation in the classroom, the studies showed, may also lead to “stereotype threat” — in which students fear that their performance may confirm negative stereotypes about ability — and can have negative physiological effects on the student, further hindering academic performance.

La Raza, which seeks to empower Latino students, in an email voiced its support for the critical mass program as a way to “reduce academic anxiety and stereotype threat.”

Students at the law school have responded positively to the policy as well.

Reed Frye, a second-year law student, said in an email that first-year black and Hispanic students “largely love the policy,” adding that they seem more assertive and empowered than he remembers feeling as a black first-year student, before the policy was implemented.

Frye suggested that the absence of black students in one super-mod disadvantages white students in that mod. He added, however, that the barriers for underrepresented minorities overcome by this policy outweigh the detriments (of a lack of diversity) to white students “by several orders of magnitude.”

Similarly, Emmanuelle Berdugo, a first-year student, said the administration’s decision to listen to the concerns of underrepresented-minority students who had felt marginalized in previous years and respond with the critical mass policy was a prudent decision, and dismissed the idea that such a policy amounted to segregation.

Berdugo and others noted that while the mods themselves are not a problem, there still exist concerns regarding the representation of underrepresented minorities at Berkeley Law. Many cited California Proposition 209 — which prohibits public education institutions from considering race, sex or ethnicity in admissions — as an underlying factor.

“The fact that there is a super mod with no Black students is a problem the university needs to deal with,” Berdugo said in an email. “They have to admit more Black and Brown students.”

According to the Law Students of African Descent, Prop. 209 caused a steep decline in the enrollment of black students at the law school.

A December 2014 study done by the Journal of Blacks in Higher Education showed that, on the basis of black students as a percentage of total enrollment, Berkeley Law ranked 14th out of 15 leading law schools in the nation.

Though it strongly supports the critical mass policy, La Raza stated in an email that it is merely an attempt to fix a “symptom of the bigger problem of the law school admissions and retention systems — a failure to achieve true racial diversity and inclusion.”