This Comment will argue that all classifications of legal aliens, including nonimmigrant aliens, should be subject to strict scrutiny, rather than rational basis review. Part II will discuss the Equal Protection Clause, the levels of scrutiny, and the criteria the Supreme Court uses to determine which classifications should be subject to each level of scrutiny. Part III will discuss Court precedent in relation to the Equal Protection Clause and how the Fifth and Sixth Circuits have contravened that precedent. Part IV will discuss why classifica-tions of nonimmigrant aliens, just like those of immigrant aliens, should be subject to strict scrutiny. Finally, Part V will discuss the implications of treating nonimmigrant aliens as a suspect class and subjecting laws that discriminate against them to strict scrutiny.
Sex Offender Treatment in the United States: The Current Climate and an Unexpected Opportunity for Change
While sex-offender laws and policies have garnished unquestioning support from a sector of the population largely uneducated about the specifics of their implementation and effects, they have frequently been criticized by scholars, mental health professionals, and others familiar with the realities of contemporary sex-offender treatment. This Comment explores many of these criticisms, from widespread societal implications and efficacy concerns to the frequently disproportional practical difficulties faced by individual offenders and their families. This Comment recognizes that because of the general population's lack of awareness about these issues, lawmakers who would otherwise support sensible and necessary modification of the existing system are often unable to do so without risking political suicide. As a result, this Comment suggests that legislators seize the opportunity presented by the current economic crisis and use the umbrella of budgetary constraints to restructure sex-offender laws and policies in order to inject into the system maximum financial economy, functionality, and justice.
Show Me the Money: The Applicability of Contract Law's Ratification and Tender-Back Doctrines to Title VII Releases
This Article seeks to remove this confusion and set forth the proper role (if any) for the common law contract doctrines of ratification and tender back with respect to a release of Title VII claims. Part II provides the background of these common law contract doctrines. Part III reviews the Supreme Court precedent on the application of the ratification and tender-back doctrines to the release of federal claims. Part IV reviews lower-court precedent on the application of these doctrines to the release of Title VII claims. Part V addresses whether Supreme Court precedent with respect to the application of the ratification and tender-back doctrines to other federal statutes compels a particular result regarding Title VII releases. Part VI discusses the competing policies and principles with respect to whether ratification and tender back should apply to Title VII releases. Lastly, Part VII demonstrates that ratification should apply to Title VII releases, but that the tender-back doctrine should be applied flexibly on a case-by-case basis.
This Field Is Our Field: Foreign Players, Domestic Leagues, and the Unlawful Racial Manipulation of American Sport
This Article argues that the MLS Policy restricting the numbers of international players on its teams' rosters does, in fact, perpetuate unlawful racial discrimination. While the Policy does not facially discriminate against prospective players on the basis of race, and while its drafters may not have intended racial exclusion, the MLS Policy disproportionately and negatively impacts players of color--particularly blacks and Latinos. In that the MLS Policy serves to racially exclude in violation of federal antidiscrimination law, it demands scrutiny. This Article provides that scrutiny, examines the implications the MLS Policy has for America's other premier professional sports leagues, and ultimately argues that MLS should abandon the Policy.
The Forgotten Freedom of Assembly
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s' McCarthyism. Abraham Lincoln once called “the right of peaceable assembly” part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This Article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.
Raising the Dead?: The Lilly Ledbetter Fair Pay Act
If applied literally, the Lilly Ledbetter Fair Pay Act (FPA) has the potential to radically change the landscape for claims under Title VII and other antidiscrimination laws. While limited to discrimination in compensation, as opposed to discrimination in other terms and conditions of employment, the FPA removes the statute of limitations not only for compensation decisions per se but for any “other practice” affecting compensation. Further, the new law is explicitly retroactive. Thus, a failure to promote a plaintiff twenty years ago would seem to be actionable today, as long as the nonpromotion has an effect on current compensation. While the statute has a liability-limiting provision (capping backpay at two years before the filing of an Equal Employment Opportunity Commission charge), the potentially enormous financial costs of the new law are sure to trigger a variety of responses from employers, ranging from interpretation disputes about the scope of the statute, to constitutional challenges, to the applicability of laches--a defense that has been barely developed in this context. This Article analyzes the FPA and concludes that its most radical implications are in fact the correct interpretation of the law and that Congress acted well within its constitutional powers in making the FPA retroactive. Ironically, the Justices who read Title VII as it was originally enacted to impose a strict limitations period will be compelled by their own interpretative approach to read the FPA as an override. This Article does recognize, however, that laches may limit the impact of the new statute--most obviously where the plaintiff was aware both of the adverse employment action at the time it was taken and of the probability that the action was discriminatory.
Congressional Consent Under the Compact Clause: Plugging the Leaks in the Regional Greenhouse Gas Initiative
The United States faces a potential turning point in the relationship between state and federal regulation of environmental issues. With the election of President Barack Obama, who has signaled a commitment to taking action in the area of carbon emissions regulation, the national government may step into an arena where the states are already playing, setting up a federalism debate to determine the better actor to enact meaningful and efficient environmental protection. Effectiveness in this area depends on the balance between quick enactment to prevent increased emissions (and further harm) and the comprehensiveness required to address this national and global issue. This Comment examines the Regional Greenhouse Gas Initiative to illustrate how the use of a seldom-examined constitutional tool--consent under the Compact Clause--could enable states to form efficient and effective regional regulatory schemes that could be meaningful units within the greater system of federalism.
A Crime Against Common Sense: How Louisiana's Implementation of the Adam Walsh Act Exposes the Law's Most Significant Flaw
In Louisiana, hundreds of people are required to register as sex offenders for committing a crime that is neither violent, predatory, nor against children. Prostitutes who offer (or solicitors seeking) vaginal sex are convicted of prostitution, whereas prostitutes offering (or solicitors seeking) oral or anal sex may be convicted of “Crime against nature” and must register as sex offenders. This Comment explores how Louisiana's implementation of the flawed Adam Walsh Act has led to the senseless mislabeling of those convicted of “Crime against nature” as sex offenders. More than merely recognizing the problem, this Comment offers a practical solution.
The Political Economy of Energy and Its Implications for Climate Change Legislation
Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the successes and failures of national climate change policy.
Law and Choice of Entity on the Social Enterprise Frontier
Social entrepreneurs are people who envision widespread, systematic social change and who attack society's ills at the roots, employing the spirit and the tools of entrepreneurship. They reject the traditional boundaries between the nonprofit and for-profit sectors and carry out their plans through so-called hybrid social enterprises, which combine the soul of nonprofit organizations with the discipline and business savvy of for-profits. Although social entrepreneurs generally are driven by a desire to do good, they view themselves as businesspeople who are trying to achieve double-bottom-line (financial and social) or triple-bottom-line (financial, social, and environmental) results. Why should the emergence of these new hybrid social enterprises be of particular concern to lawyers? Because their creators say that they inhabit a social frontier, sometimes referred to as the “emerging fourth sector,” where outmoded laws and inappropriate, old-style legal entities hamstring their socially transformative plans. With increasing vehemence, they are demanding new laws, particularly new types of hybrid business entities.
This Article describes the social enterprise frontier, paying particular attention to a recent trend whereby social entrepreneurs form their ventures as for-profit companies even though their ambitions are largely charitable. The paper then critically examines various proposals for creating new types of hybrid for-profit/nonprofit entities to provide a legal structure for fourth sector ventures. The paper concludes that a very recent legal innovation, the Low Profit Limited Liability Company, holds particular promise for meeting the needs of social entrepreneurs and the emerging fourth sector.