Quoth the Raven: The Maryland Law Faculty Blog

Post-Racialism Mississippi Style

Taunya Lovell Banks

The Smoking Gun just reported that the Nettleton Middle School located in a tiny town a few miles south of Elvis Presley’s birthplace, Tupelo, Mississippi, distributed an informational memo to its students about the forthcoming elections for class officers.  According to this memo students running for 8^th grade class president or reporter must be white, and students running for vice president or secretary-treasurer must be black.  The requirements differ slightly for 7^th and 6^th grade class officers.  Black seventh graders are only eligible for the secretary-treasurer position, and black six graders for the reporter position.  Otherwise the eligibility criteria, B average, good attendance and disciplinary record, are the same for all grades and positions.

Incomplete Truths: Women, Title IX and Sports - Racial and Wealth Disparities

Taunya Lovell Banks

Almost forty years ago Congress enacted Title IX of the 1972 Education Amendments which provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."  Today although support for women’s high school and college sports is well established, men’s sports remain better funded and more prestigious.  This point is unsurprising.  What is news is that the primary beneficiaries of Title IX have been white women, the dominance of black women student athletes in women’s basketball notwithstanding.  (For information about participation rates at NCAA colleges and universities broken down by race and gender, click here).

Law Professor Deborah L. Blake explains the reasons in her new book, Getting in the Game: Title IX and the Women's Sports Revolution.  According to a recent article about this book in The Chronicle of Higher Education, Congress in opening the door to greater participation of women in competitive sports “failed to consider persistent racial inequality in our nation’s public schools....where sports offerings in urban and low-income areas . . . scant for boys, and even more limited for girls . . . thwart female athletes' access to sports at the college level.”

While this is an interesting story, what caught my eye were the comments following the story.

Professor Danielle Citron on Government 2.0 and Privacy

Congratulations to Danielle Keats Citron, whose “Fulfilling Government 2.0’s Promise with Robust Privacy Proections” was just published by the George Washington Law Review (78 George Washington Law Review  822 (2010).  Professor Citron’s essay documents both the promise and perils of new technologies that permit persons to “friend” the government on the internet.  On the one hand, she notes, Government 2.0 provides unparalleled opportunities for citizens to learn about and comment on government policy.  Government initiatives that put information about public policy initiatives online, Citron details, “heighten the public’s awareness of, and ability to provide feedback on, policymaking.”  On the other hand, people who friend the government enable government to access easily information about them, ranging from their favorite chess opening to friends who may have been arrested in an antiwar protest twenty years ago.  To quote Citron again, “Government could . . . learn more about individuals from Government 2.0 sites than it would from traditional law enforcement tactics given the breadth of personal information that individuals voluntarily learn on line.”  Her solution is to create one-way mirrors on line.  These devices permit citizens to access and learn about government, while ordinarily preventing government officials from accessing and learning about the private information persons on line wish to make available only to actual friends.   “Individuals could examine government’s postings, participate in policy discussions, and share their expertise with government,” Citron declares.  “At the same time,” she suggests, “a one-way mirror policy would prohibit government from using or distributing that abridged list for any purpose, such as the identification of a fan’s group associations.”

            The online version of the law review has the full article.  The piece is an excellent read and thought-provoking.  Kudos again to Professor Citron.

Copyright Gone Wild

Robert E. Suggs

 

David Post on the Volokh Conspiracy blogged Wednesday about the recently discovered Savory recordings reported in Sunday’s NYT and how our dysfunctional copyright laws likely will prevent this treasure trove of late 1930s performances by Jazz greats from being available for public consumption. He wrote in general terms about the uncertainty of copyright ownership, given that “the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings.” Exploring the tangles of possible ownership reveals that the problem of uncertain ownership identified by Post probably cannot be overestimated.

D.C. Circuit Relies Heavily on Professor Renee Hutchins in GPS Case

Kudos to Professor Renee Hutchins, whose article, "Tied Up in Knotts? GPS Technology and the Fourth Amendment," 55 UCLA Law Review 409 (2007) was cited by and played in crucial role in the D.C. Circuit Court's recent opinion in U.S. v. Maynard (2010).  Professor Hutchins in that article distinguished Global Positioning System (GPS) devices from the beeper that the Supreme Court of the United States in United States v. Knotts ruled could be placed in a suspect's car without a search warrant.  Her careful doctrinal analysis established a difference between a beeper which monitored a single trip and a GPS device that would tell government authorities where suspects drove their cars for an extended period of time.  We may not have a reasonable expectation of privacy when we are on the road, but most people think the police ought not keep a record of every car trip they take.  The D.C. Circuit endorsed Professor Hutchin's important scholarly analysis.  When ruling that the police violated a suspect's fourth amendment rights by installing a GPS device in his car for four weeks, Justice Douglas Ginsburg's unanimous opinion quoted the central contention of Professor Hutchin's paper.  "According to the Supreme Court," the cited passage from that article declared, "its decision [in Knotts] should not be read to sanction 'twenty-four hour surveillance of any citizen of this country."  The Maynard opinion later cited Professor Hutchins a second time on the precise technology used by GPS devices.  Another example of the remarkable influence of one of the most promising young professors at the University of Maryland School of Law.

Summer Reading: Suggestions for President Obama and Attorney General Holder

Maureen Sweeney

 

Everyone should have something interesting to read for the dog days of August, and I have a suggestion for President Obama and Attorney General Holder:  they should read the brief filed by the federal government’s own representatives in support of the injunction that was recently granted against much of Arizona’s new immigration law (known as SB 1070). 

The part of the brief that I would recommend to Mssrs. Obama and Holder is the section in which the federal government’s representatives argue for the importance of maintaining the discretion to pursue civil immigration proceedings and the various reasons that such civil enforcement may be preferable to criminal prosecution of certain immigration violators.

Subject to the Jurisdiction Thereof

The United States again is in the midst of a familiar periodic debate. Like clockwork, one can correlate demands for “securing the border,” and debates about what to do with all those “illegal aliens” with the state of the national economy. That the current debate has lasted longer (and finding a satisfactory legislative solution more elusive) than usual (e.g. 1986 and 1996) probably say as much about the depth of the current recession as it does about the intractability of the problem, at least in its current incarnation. Nonetheless, there is an element of the current shouting that is in fact unusual: the discourse has invaded the sacred precinct of Constitutional Law by the suggestion that the Constitution be amended to redefine the grounds for so-called “birthright citizenship.” But of course, rather than simply asserting the power to amend as a prerogative of the society which it may undertake for a good cause or no cause, the proponents who are schooled in Common Law thinking feel it necessary to justify the proposed Amendment by suggesting that it is no more than a clarification of what the drafters of the original Amendment must have had in mind in 1868. And the clause "subject to the jurisdiction thereof" is said to embody that inchoate intention. It is a superficially intriguing but significantly flawed argument.

Teaching Lessons from Real Life

Teaching Lessons from Real Life

Here are some lessons I plan to teach my students about the Shirley Sherrod controversy. http://coloreddemos.blogspot.com/2010/07/teaching-moment-shirley-sherrod.html

Czapanskiy on Chalimony

From the Raven's Nest

Kudos to Professor Karen Czapanskiy for her fascinating article, “Chalimony: Seeking Equity Between Parents of Children with Disabilities and Chronic Illnesses.”  Professor Czapanskiy points out that custodial parents of children with disabilities or chronic illnesses have particular difficulties entering or staying in the work force.  Such parents are too often invisible in family law decisions and scholarship, which focuses on the needs of custodial parents with healthy children.  “Chalimony,” the article, proposes to remedy the scholarly deficiency by taking a look at the way children with disabilities and chronic illnesses affect the life prospects of their custodial parents and other family members.  Chalimony, the remedy, proposes an equitable solution to the difficulties rearing a disabled child present to newly single parents.  Professor Czapanskiy points out:

I envision chalimony as a remedy addressing some of the economic loss experienced by caregiving parents of children with disabilities or chronic illnesses. Simultaneously, a desire to avoid paying chalimony could motivate the potential payor parent to share more fully the responsibility of providing the child with care. Chalimony would serve as an additional financial remedy, over and above child support and alimony. It would be awarded to caretaker parents of children with disabilities or chronic illnesses in situations where the child's care needs impair, either partially or totally, the labor force participation of the caretaker parent. Like child support and alimony, chalimony would be paid by the child's nonresident parent, assuming that parent has the ability to pay. Whether a chalimony award should be made and in what amount would be a case-specific determination.

 

The full article can be found in 34 New York University Review of Law and Social Change 253 (2010) and should soon be available directly for the law school.