Advance Journal

  • September 21, 2009

    In Harris County, Texas, the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims. These are the findings of Professor Scott Phillips, University of Denver. Phillips's examination of these findings was distributed in his ACS Issue Brief "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," just re-released in the latest edition of Advance: The Journal of the ACS Issue Groups. 

    Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney's decision to seek the death penalty, rather than with the jury. He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented.

    Phillips proposes that prosecutors' offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider "desocializing" the decision to seek the death penalty. Concrete steps that District Attorney's offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant - "racial markers" - from all documents considered in the District Attorney's decision whether to seek the death penalty.

  • September 17, 2009

    Forty years ago, the landmark decision of Tinker v. Des Moines Independent Community School District established that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

    While black arm bands, worn in protest of the Vietnam War, were the central First Amendment issue in Tinker, the rise of the internet and other technological advances are posing new tests of fundamental First Amendment rights, writes Frank LoMonte, executive director of the Student Press Law Center. LoMonte's "Reaching Through the Schoolhouse Gate: Students' Eroding First Amendment Rights in a Cyber-Speech World" is now available in the latest edition of Advance: The Journal of the ACS Issue Groups.

  • September 16, 2009
    A seemingly never-ending campaign to scuttle equality and civil rights advancements for minorities is propelled increasingly on a state-level, writes Colorado Law Professor Melissa Hart in an article published in the new edition of Advance: The Journal of the ACS Issue Groups.

    Equality and the reach of civil rights laws, writes Hart, have been the focus of constitutional law jurisprudence as well as Supreme Court nomination battles. In regards to affirmative action policy, the high court Hart maintains has "taken a relatively measured middle-ground, limiting the permissible scope of affirmative action significantly, but retaining a core that acknowledges the need to remedy discrimination and the value of diversity."

    In her Advance article, "The State-by-State Assault on Equal Opportunity," Hart explores, in part, "A small group of well-funded opponents of equal opportunity, frustrated with the Court's continued rejection of their radical vision of formal equality, has been steadily attempting to shift the debate into the political arena." For example, Hart noted that voters in a growing number of states have approved ballot measures aimed at making affirmative action policy illegal. Each ballot initiative, she writes, "prohibits ‘preferential treatment' on the basis of race or gender in public education, employment or contracting. The term preferential treatment is not defined in the proposed initiatives, but the identical language has been interpreted to prohibit any consideration of race or gender in the covered areas. In states where there initiatives pass, it has become effectively irrelevant what the Supreme Court says about affirmative action."

  • September 14, 2009
    With the 2009 football season underway, fans and pundits alike are keeping a keen eye on their favorite teams' players, stats, and of course, coaches. The hiring of coaches in the National Football League (NFL) has drawn scrutiny in recent years, in large part because of the Rooney Rule. Adopted by the NFL in 2002 to encourage the hiring of minorities for head coaching positions, the Rooney Rule has produced benefits, but could be expanded, says Douglas C. Proxmire, a partner at Patton Boggs LLP, in his article "Coaching Diversity: The Rooney Rule, Its Application and Ideas for Expansion," which can be found in the latest edition of Advance: The Journal of the ACS Issue Groups

    The "Rooney Rule," named after Pittsburgh Steelers' President Dan Rooney, who chaired a 2002 committee to address minority hires in the NFL, "might appear to be solely about racial diversity in leadership positions within the NFL, but in fact, a discussion of the Rooney Rule involves broader issues that affect not just the NFL, but also other segments of the sports world ...," Proxmire maintains. He writes, however, that more can be done to bolster the effect of the Rooney Rule in the NFL, as "only six of thirty-two (19%) NFL teams were coached by minorities" heading into the 2008 season, up from two in 2002. Proxmire writes that the rule should be expanded to other NFL positions, such as offensive and defensive coordinators, and to allow "non-monetary" penalties to be levied against teams, such as stripping them of draft picks. Proxmire also says other pro leagues and the college sports associations should adopt a measure in the mold of the Rooney Rule. Recently, however, the NCAA has adamantly resisted such a provision, calling into question the possible future application of the Rooney Rule outside of the NFL.

    Even outside the realm of professional and college athletics, similar provisions could be adopted by employers to encourage fair hiring of minorities, especially for executive jobs. To critics of such an idea, Proxmire argues that "by forcing businesses to consider and evaluate the best candidates who otherwise might be overlooked for advancement, the rule combats unconscious bias and increases the chances of selecting the best person for the job."

  • September 11, 2009
    Guest Post

    By Maha Jweied, Senior Attorney-Advisor, Office of the General Counsel, U.S. Commission on Civil Rights; former law clerk, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia; 2009-2011, Young Lawyers Division Liaison, ABA Section of International Law; 2009 ACS Public Interest Fellow. The views expressed below are those of the author alone.

    Recently I blogged on the interrelationship between international law and the U.S. civil rights movement. While certainly not a contentious topic for most readers of ACSblog, the use of international law in domestic courts to further a domestic civil rights agenda-or any other matter-is anything but resolved. In some instances, international law is necessary to decide a matter, such as in cases brought under the Alien Tort Claims Act. In other instances, international and foreign law sources are referenced by litigants or judges as examples of non-binding authority in support of a particular position. It is primarily this second use of international law which Professor Chimène Keitner focuses on in her article "International and Foreign Law Sources: Siren Song for U.S. Judges?" published in the most recent issue of Advance: The Journal of the ACS Issue Groups.

    Professor Keitner provides a clear overview of the judicial debate surrounding the use of international and foreign law sources as non-binding authority in domestic courts and the reaction of legislators to this reality. She then examines three sets of arguments advanced by opponents to the use of these sources, which she terms as Institutionalist Objections, Instrumentalist Objections and Inherentist Objections. It is these arguments and the third set in particular, which I would like to explore here.