All content tagged with: Equal Protection Clause

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  • Individual Aboriginal Rights

    This Article will, in Section I, deal with the legal development of the concept of individual aboriginal rights. It will focus on the Western Shoshone land claims before the Indian Claims Commission, and the federal government's trespass claims against the ranching operations of the redoubtable, irrepressible Dann sisters. Section II will explore the development and utilization of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession of or access to sacred sites. Section III will explore some related concepts in western public land law. This Section suggests that custom, prescription, access under nineteenth century self-executing right of way statutes, regulatory efforts, and administrative accommodation have provided at least some protection for the access of tribal peoples to sacred sites. Section IV will speculate about the future expansion of such efforts, and explore the possibility that the growth of colorblind equal protection doctrine will spread into the area of Indian law and threaten what Charles Wilkinson has called the "measured separatism" of tribal sovereignty and property.

  • Locked in Inequality: The Persistence of Discrimination

    In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.

  • A General Theory of Cultural Diversity

    This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited by anti-discrimination law does not really resolve much, as cultural discrimination carries the risks of many of the evils our anti-discrimination laws are designed to address. Therefore, this Article concludes with proposals for regulating cultural discrimination so that fair discrimination based upon specific cultural facility, ranging from communication skills to cultural insights, is not accompanied by the potential for parasitic cultural discrimination.

  • Drawing the Line on Incumbency Protection

    In an effort to fill the void in scholarly debate and legal analysis, this Note evaluates incumbency protection as a redistricting principle and analyzes its treatment in various court opinions. After arguing that protecting incumbents is not a legitimate redistricting objective, this Note illustrates how the Supreme Court and lower federal courts have been reluctant to pass judgment on incumbency protection. This Note contrasts this "hands-off" approach to the strict scrutiny afforded claims of racial gerrymandering and argues that such an approach enables incumbents to manipulate the Voting Rights Act for their self-interest. Additionally, this Note argues that incumbents, a disproportionate majority of whom are White, are effectively protected at the expense of efforts to enhance minority voting power and that the Court's double standard offends notions of equal protection. This Note concludes that the current approach to redistricting undermines the legitimacy of the electoral process and briefly considers alternatives.