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Volume XXII Winter 2004 Number 1

ARTICLES

Can You Get There from Here?: How the Law Still Threatens King's Dream
Timothy Sandefur

Among the great events of the modern Civil Rights Movement were the bus boycotts in Baton Rouge, Louisiana in 1953 and in Montgomery, Alabama a year later. By refusing to patronize segregated buses, the protesters expressed their frustration and focused national attention on the evils of segregation. Less well known is the fact that taxicab licensing laws almost shut down the bus boycotts. These laws, and many other economic regulations like them, perpetuate inequalities in less obvious ways today by curtailing economic opportunity and thus retarding the ability of the underprivileged to achieve success. This Article examines the ways that taxicab regulations and other interventionist rules continue to block the road to progress and equality.


The Minnesota Land Use Planning Act and the Promotion of Low- and Moderate-Income Housing
Edward G. Goetz, Karen Chapple & Barbara Lukermann

State legislatures have pursued a range of strategies to ensure that affordable housing for low- and moderate-income families are available throughout metropolitan regions. The Minnesota Land Use Planning Act (LUPA) of 1976 is such a strategy. LUPA requires communities within the Minneapolis-Saint Paul metropolitan area to adopt plans for meeting their share of regional need for low-cost housing, and to establish programs to implement those plans. After a short period of compliance, the Metropolitan Council and individual communities have come to ignore the low-mod housing provisions of LUPA. This Article examines and documents the retreat from a "fair-share" regional approach required by LUPA, and offers a series of policy recommendations aimed at increasing low-mod housing in suburban parts of the metropolitan area.


Racial (De)Profiling: Modeling A Remedy For Racial Profiling After The School Desegregation Cases
Jeremiah Wagner

42 U.S.C. § 1983 allows individuals to bring private racial profiling claims against the government alleging a violation of the Equal Protection Clause. However, to be successful, plaintiffs must navigate through the judicial obstacle course of an Equal Protection claim. First, plaintiffs must show that actions of the government have had a discriminatory or harmful effect on them. Second, they must show that the discriminatory effect was the intended or purposeful result of those actions. And finally, even if the plaintiffs offer proof of a purposeful discriminatory effect, the government's actions are not immediately invalidated. Instead, the burden merely shifts, and the government must show that its actions survive the Supreme Court's strict scrutiny test. The purposeful requirement of an Equal Protection claim has made it very difficult for plaintiffs in private racial profiling claims to shift the burden of proof to the government even when there is sufficient evidence of a discriminatory effect. However, the Supreme Court's treatment of school segregation and desegregation represents a string of decisions that were primarily concerned with the practice's discriminatory effects, and not whether the discriminatory effects were presently purposeful.

This Article compares school segregation with racial profiling and argues that racial profiling is just another form of segregation that must be declared unconstitutional. This Article also asks courts to combat racial profiling with a strategy similar to that employed by the Supreme Court in the school desegregation cases: racial (de)profiling.


Guardians Ad Litem and the Cycle of Domestic Violence: How the Recommendations Turn
Mary Grams

Judges in Minnesota appoint guardians ad litem to investigate high controversy divorce cases involving children and to make recommendations as to which parent should be awarded custody of the children. Because of their investigative and recommendatory roles, guardians ad litem have enormous power in a contested custody case from the perspective of parents who are parties to the case, their attorneys, and other advocates involved with the case. The guardian's power is especially important when the parties or their children have been victims or witnesses to domestic violence because guardians may award custody to an abuser when they do not believe abuse has occurred or that the abuse is a significant factor.

This article analyzes the qualifications, duties, and powers of guardians ad litem and concludes that reforms must be made to the guardian ad litem role and to the guardian ad litem system. These reforms include changes to the court rules that govern the scope of guardian ad litem qualifications, authority, and duties as well as to the statutes which guardians ad litem must consider when making recommendations for custody. With these and other changes, the guardian's role may become less controversial and provide safer and fairer results for children and parents.


ESSAYS

To Be or Not To Be…Out in the Academy
Michael R. Siebecker

In To Be or Not to Be...Out in the Academy, Professor Michael Siebecker delves into his personal experiences as a gay man and teacher to examine some basic questions about identity, sexuality and legal pedagogy. In particular, Professor Siebecker investigates whether or not he has a duty to embrace publicly a gay identity through a discussion of sometimes competing concerns surrounding his own identity and personhood, his students and the larger community as well. In addition, Professor Siebecker criticizes the claim that simply being gay imposes on him some special academic responsibilities to pursue gay legal scholarship or to incorporate gay legal perspectives into traditional law courses. Professor Siebecker’s Essay is a highly personal look at the challenges of being an out gay law professor that begins with a look at the internal, himself, and ends with a look at the external, society.


 
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