Volume 13 / Number 4 / Winter 2009



Plessy 2.0

Ronald Turner

In its infamous 1896 decision in Plessy v. Ferguson the Supreme Court of the United States held that a Louisiana statute mandating separate but (in reality not) equal railway accommodations for black and white passengers did not violate the Fourteenth Amendment’s Equal Protection Clause. One hundred and eleven years later, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court held that the same clause prohibited racial integration and diversity plans voluntarily adopted by public school districts in Seattle, Washington and in the Louisville, Kentucky metropolitan area. This Article argues that Chief Justice John Roberts’ plurality opinion in Parents Involved is reminiscent of, and indeed resurrects certain aspects of, Plessy’s pre- 1900 equal protection analysis, as both decisions ignored racial realities and social meanings of race and insulated racial hierarchy and the racial status quo from integrative change. Plessy’s and Parents Involved’s analytical commonalities and formalistic approaches to, and constructions and constrictions of, the Equal Protection Clause reveal the ways in which constitutional law and history can be circular rather than linear, regressive rather than progressive.

To Work, or Not to Work? The Immortal
Tax Disincentives for Married Women

Margaret Ryznar

Among the most fundamental barriers to the aggressive participation of many married women in the work force are the disincentives for secondary income earners embedded in the federal tax code. Specifically, the current code contains a marriage penalty, which is aggravated by the progressive nature of taxation and any potential increases in income taxation. Meanwhile, child-care expenses, a prerequisite for entry into the labor market, are treated inadequately. Although these immortal problems persist despite political pushes for relief, new attention to this topic is warranted given the Obama Administration’s pledge for tax law reform. If the principle to be prioritized is that married women should not face tax disincentives to pursue paid work, then the tax code must finally deal with these issues effectively.

Two Fathers, One Dad: Allocating the Parental Obligations
Between Men Involved in the Artificial Insemination Process

Browne Lewis

This Article deals with the allocation of paternity between the men involved in the artificial insemination process. The Article explores the manner in which the courts determine the identity of the father of a child conceived by artificial insemination. If a man is financially responsible for a child during his lifetime, that child is usually classified as his heir if he dies intestate. Once an artificially conceived child is permitted to inherit from his or her father, the issue that must be resolved is: from which “father” does the child have the legal right to inherit? There are two possible answers to this question. The child may have the right to inherit from the husband of his or her mother or from the man who donated the sperm that resulted in his or her conception.

The current paternal statutory scheme is inadequate to address the legal consequences resulting from the existence of artificially created children because it focuses too much on protecting the reproductive rights of the men involved in the process and ignores the needs of the children that are conceived. Instead of focusing exclusively upon the man’s right to choose whether or not to be a parent, the state legislatures should take steps to ensure that the artificially conceived child has at least two adults who are legally responsible to provide financial support for the child. That goal can be achieved by expanding the definition of “father” to include men who are not linked to the child by biology or adoption. I propose that fatherhood should be redefined to promote the best interests of the artificially conceived child.

Rethinking the Use of Foreign Law and Public Consensus:
The U.S. Supreme Court’s Inconsistent Methods for Defining Constitutional Rights

Luke Nikas

The debate over the Supreme Court’s citation of foreign law rages on. Does the Court have a constitutional license to consider foreign law? Does foreign law differ too much from our own to be of any value? Discussions of questions like these fill confirmation hearings, law reviews, and pages of the U.S. Reports. But a key piece of the debate is missing. This Article connects the use of foreign law with the ways in which the Supreme Court has used a domestic consensus to define constitutional rights. It argues that the decision to consider foreign law, or not, raises substantially the same moral-philosophical problems as the Court’s use of a domestic consensus. These philosophical problems are particularly pronounced because the Supreme Court’s doctrinal methods for defining constitutional rights rely upon consensus in inconsistent ways, all of which conflict with moral-philosophical theories about the source and meaning of our rights. The Article concludes by arguing that the Court has failed to justify its consensus-related jurisprudence and, in turn, has failed to explain how our rights come to fruition and what they actually mean.

Religious References in Death Phases of Trials:
Two Psychological Theories that Suggest Judicial
Rulings and Assumptions May Affect Jurors

H. Lyssette Chavez and Monica K. Miller

The effect of religious references in the courtroom has garnered recent attention by researchers interested in the role of religion in the legal system. Researchers have set forth a typology suggesting various types of religious references used by prosecutors and defense attorneys, especially during sentencing phases of death penalty trials. Judges mention several assumptions when deciding whether attorneys should be allowed to make religious references in their opening or closing arguments. However, some of these assumptions seem erroneous in light of research on psychological concepts such as reactance theory and dual-processing theories. The objectives of the present study were to test this typology to determine whether it is under- or over-inclusive; to conduct a multiple state analysis to determine how often appellate judges permit religious references in trial courts, and discover the reasons why they are permitted or not permitted. The findings of the analysis have implications for defendants’ constitutional rights during death penalty trials and the outcomes of their trials. Finally, recommendations for the legal system are discussed.



Landlords, Dance Halls, and UGC Hosts: Direct Financial
Benefit and the Digital Millennium Copyright Act

Casey C. Charles

In 1998, the prospect of secondary liability severely crippling the Internet inspired Congress to pass the Digital Millennium Copyright Act (DMCA). To that end, Congress created safe harbor provisions to set predictable boundaries for online service providers (OSPs) seeking to stay clear of liability for the acts of their users. Ten years later, the World Wide Web is inextricably embedded in humanity’s social fabric. Advances in technology have enabled massive collaboration between Internet users and OSPs under the banner of Web 2.0, generating a shift in social mores, transforming business models, and unleashing an enormous wave of copyright infringement. Safe harbor under § 512(c) requires, inter alia, that an OSP “does not receive a financial benefit directly attributable to the infringing activity.” Though the promise of spectacular financial benefit for OSPs that host mass infringement seems clear, the scope of safe harbor protection remains eerily uncertain as we approach the billion-dollar lawsuit between Viacom and YouTube. This Comment traces the direct financial benefit test from its common law origins through its application to OSPs under the DMCA. Finding the statutory test structurally defective and definitionally challenging, this Comment sifts through the kaleidoscopic case law to synthesize judicial logic and set forth a cleaner, flexible methodology that renders § 512(c) more predictable, consistent, and clear. Observing the dangers of stretching vicarious liability beyond the employer-employee relationship, this Comment concludes that courts have shrewdly addressed the flawed direct financial benefit test while consistently employing safe harbors correctly.

Add One to the Arsenal: Corporate Securities
Laws in the Fight to Slow Global Warming

Kathryn Douglass

Two large energy companies recently agreed to disclose their climate change risks in annual Securities and Exchange Commission (“SEC”) filings. These disclosures shed light on a new strategy environmentalists can use to incentivize businesses to reduce greenhouse gas emissions— corporate disclosure rules. Although the SEC requires businesses to report environmental liabilities, the SEC does not consider global warming impacts a reportable liability. This Comment addresses how global warming liabilities are disclosable under two SEC environmental disclosure requirements, Item 101 and Item 303, and how such disclosure would aid in reducing greenhouse gas emissions. This Comment then goes on to discuss how the SEC disclosure rules could be used in a lawsuit to compel businesses to disclose their climate change impacts and how such a lawsuit would compare to litigation tactics typically used by environmentalists. The Author concludes that the environmental disclosure rules may be a good alternative to litigation tactics typically employed by those seeking to limit greenhouse gas emissions.