misc
P-Man: sorry there haven’t been any updates; I’ve been trying to update for some time now, but blogger has been seriously screwed up (after three minutes of getting the hourglass after clicking on “create post,” I have to stop so that I can get back to not working on my client letter (which I still haven’t started). If you’re reading this, blogger has started working again, so I’ll continue to waste both of our time.
We did Korematsu in Con Law today, and thought of (in my opinion) a fairly decent argument that wasn’t in the case. If either of the readers were at the post-contracts review session, they would have heard it too. To make it, I would have to support the rounding up of Japanese Americans in WWII, so I decided that whoring off my beliefs and annoying Professor Bergin was probably worth (hopefully) impressing her with a novel argument. Just to clarify, if I offended anyone with my spiel, I was only doing to suck up to a superior, which is the main motivating factor in the practice of law.
The last stop on this stream of consciousness tour of my troubled mind is that, though Lauren manifest her agreement to going out with some people after class, you schmucks have yet to come up with a plan. She’s off this Friday, so someone should come up with something if you’re serious about tearing us away from our cats on a Friday night.
A final housekeeping note: to avoid the daily question of if and what we are reviewing, I’m just going to make a schedule:
after Contracts: Con Law pre-class discussion
after Con Law (except Wednesday): Con Law review
after Torts: property review
If that doesn’t work for anyone, just let me know. (I finally got to show off my 1337 html skills with the "blockquote" tag)
posted by Sam @ 7:06 PM
8 comments
8 Comments:
no offense taken, as i was still reeling from the offensive comments from THAT guy.
You mean "they all look alike" isn't a valid legal argument?
Will you help me with this from Washington v. Davis...
If the court says they will use an "intent" test, yet they allow a plaintiff to offer the "impact" as circumstantial evidence of intent, then isn't it still an "impact" test?
Please help...of course, I realize I am in line behind the client letter...
nope, neither is "then you're not a good citizen."
sam let me know if i'm wrong here:
andrew, think "totality of the circumstances." with the intent test, impact is taken into account, but is not by itself proof of discrimination unless there is not other way to explain the impact except for an invidious purpose. with intent, the court looks at things like legislative history, sudden shifts in policy, etc. - totality of the circumstances, not just impact.
with an impact test, the standard is lower & the disparate impact alone is like the red flag that indicates discrimination. the party claiming discrimination doesn't have to prove that the decisionmaker had intent to discriminate, and thus, a lower burden of proof.
after they get past the discrimination hurdle, they go to heightened scrutiny. so, the impact or intent tests are like moore's camel's nose in the tent.
That's about right. Here’s an example of the test at work: Congress passes a law requiring all universities that receive public funds to only give scholarships to those making at least an 1100 on the SAT. Assume that 65% of whites and 45% of blacks make that score. Once in effect, minority enrollment at institutions of higher learning drops by 30%, whereas white enrollment marginally increases.
An impact test would look at, and only at, the actual effect of the statute. The legislative history and such considerations are irrelevant, as only the effects are analyzed. Since the statute in question has the practical effect of disproportionately hurting minorities, it is discriminatory. At that point discussion of discrimination is complete and the analysis continues (the state must provide some level of justification for the statute).
If intent must be shown, the plaintiff must prove that it was the conscious object of the legislature to disproportionately hurt minorities. If the name of the law is the “Don’t Give Anymore Scholarships to Minorities Act of 2005,” the intent test will be an easy hurdle. If it is named the “Achieving Higher Standards in Higher Education Act of 2005,” one must look elsewhere for intent. Intent will be difficult to prove, as most racists don’t wear sandwich boards supporting segregation; in order to prove intent, circumstantial evidence of discriminatory intent can be used. If a unanimous consent motion passed declaring the purpose of the act to be the suppression of minorities, intent will be shown. If, however, the stated intent of the lawmakers is to encourage more people to not waste their time on a BA and instead go to a trade school, one must look deeper. Another way to show that the decision maker intends to discriminate is by looking at how it is enforced. If the agency overseeing the law fines or punishes schools whenever they give a scholarship to one with a low SAT, enforcement is evenhanded. If, on the other hand, a school is allowed to surreptitiously give scholarships to white students without recourse but is punished for any help given to minorities, the enforcement shows that the enforcing body intended the statute to target only minorities. In that case the impact itself is irrelevant (as an evenhanded enforcement leading to the impact is ok), but the means of achieving that impact is the proof of discrimination.
If this doesn’t help, I have a drawn out analogy to torts I’ll give if you need it; I tried writing it out, but it was confusing to read.
Sorry to double post, but, with respect to the "you're not a good citizen" comment, I thought that was his strongest argument. In a war people are asked - and forced - to make sacrifices. Granted the internments were far harsher than, say, bread rationing, but internment hardly worse than being drafted and ordered to go die for the militarily irrelevant liberation of the Philippines.
Sam, I think you misunderestime the military value of the PI.
Clark Air Base was an invaluable base to stage operations from in the SE Asian theatre, as was the Naval Base that once was there. Combined with the fact that the Philippines were still a protectorate of the U.S. at the time, it had the extra value of showing that we "care" for those we exercise dominion over. Of course, there's the whole "I shall return" rationale that really was the center of everything, but the Philippines really were of a good deal of value soon after WWII.
And now, Angeles City is the PI version of Bangkok, where you can rent a woman for the entire evening, for only 20 bucks! Ask most retired Korean Linguists, and they'll have some sordid story about one of these two exotic locales, and the shot records to prove it.
I'll need to talk to you in person for the "not a good person" thing, as I missed class... lousy pinkeye
I obviously need to get someone's notes from Monday. I have no idea what's going on here.
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