POSC Terms for Midterm 2

Paradigm Shift

Term coined by Thomas Kuhn that refers to a fundamental change in how we (humans) understand the natural world

Eugenics

The science of improving the qualities of a species by carefully selecting parents

Who came up with Eugenics?

Sir Francis Dalton, who was the cousin of Charles Darwin. He largely believed in the philosophy of “Social Darwinism.”

Positive Eugenics

Encouraging people with socially beneficial traits to find similar mates

Examples: Singapore giving money to educated women to encourage them to reproduce, arranged marriages

Negative Eugenics

Designed to lower or stop the reproduction with “undesirable” traits

Examples: extermination, legal restrictions to marriage, immigration quotas, higher taxation, prohibition

Buck v. Bell (1927)

Landmark SCOTUS case that stated that the government can forcibly sterilize the feeble-minded

Notable passages from the Buck decision

Written by Justice Oliver Wendell Holmes

“Three generations of imbeciles are enough”

“preventing our swamped with incompetence”

Consequences of Buck

Allowed all states to forcibly sterilize

Harry Laughlin's model law for Virginia became the model for other states and Nazi Germany

New discoveries about Buck

1. The lawyers colluded so that the defendant (Buck) would lose and the eugenics law would pass

2. There wasn't that much substantial evidence that Buck was “feeble minded”

Frye Test

Old theory about whether or not scientific testimony is permissible for the case

• Whether evidence was based on sufficiently reliable research to have gained a “general acceptance” in the field

Rule 702 of the U.S. Federal Rules of Evidence

New validation test:

1. Whether the proposition can be tested empirically

2. Whether it has been tested

3. Whether the theory has a known or potential rate of failure

4. Whether the proposition has been subject to peer review

5. Whether there are standards for using the methodology

6. Whether the methodology is generally accepted (Frye)

When was Rule 702 adopted?

In 1993 with Daubert v. Merrill Dow Pharmaceuticals

Larry Wollersheim lawsuit against Church of Scientology

Jury awarded him 30 million but it was later reduced as a remittitor

• Fair game doctrine was used, which allows members to target entities that the church views as enemies

• Dr. Margaret Singer provided expert testimony supporting the brainwashing theory

• To what extent is brainwashing valid as science?

Molko/Leal case

Molko was invited to a dinner party with the Creative Community Project, where he claimed he was recruited to join the religion and isolated for 2-3 months

Case was settled out of court

U.S. v. Fishman

Federal court officially rejects brainwashing testimony because there is no consensus of general acceptance within these associations regarding thought reform theories

Scopes v. State (1927)

State Supreme Court upheld Tennessee law prohibiting teaching of evolution, but allowed Scopes to get off without a fine

Epperson v. Arkansas (1968)

SCOTUS held that similar laws to Tennessee's violate the Establishment Clause

Aguillard v. Edwards (1986)

SCOTUS held that a Louisiana law requiring "balanced treatment” with creation science if schools were to teach evolution violated the Establishment Clause

The Lemon Test

Established with Lemon v. Kurtzman

Any statute must

1. Have a secular purpose

2. Neither inhibit nor enhance religion

3. Not foster excessive entanglement between church and state

Wisconsin v. Yoder

Landmark case where SCOTUS protected religious freedom via statutory exemptions (free exercise clause)

Jacobson v. Massachusetts (1905)

SCOTUS upheld compulsory vaccinations for public schools

Questions surrounding vaccination

Personal autonomy vs community

• U.S. values individual rights and mandatory vaccines seem to go against that

Vaccine Court

The legal trajectory that people use who believe they have been harmed by a vaccine

Madrigal v. Quilligan

Case involving 10 Latina women who were forced to sign sterilization documents while in active labor. The forms were in English, which prevented many from understanding them clearly.

Preliminary injunction was granted against CA Department of Health, requiring them to make adjustments to their consent forms. But a new judge ruled against damages claims, because he saw the cases as ten random occurrences rather than a pattern.

Charles Davenport

Leader of the American Eugenics movement; applied Mendel's rules of heredity to humans.

Harry Laughlin

Key expert witness in the Buck case that prepared Bell's family history and provided “conclusive psychological analysis” encouraging her sterilization

His eugenic and sterilization writings HEAVILY influenced Nazi practices

Race

A system of categorizing people based on biological and physical traits- often externally assigned or perceived by others based on appearance

Ethnicity

A system of categorizing people based on learned cultural expression and background. Often can be self-identified.

Critical Race Theory

An academic and legal framework that states that racism is embedded in the U.S. legal system (laws, policies, institutions)

Mandla v. Dowell Lee & Dawkins v. Crown Suppliers

In Mandla, the English court ruled that Sikhs could sue under the Race Relations Act because they were an ethnic group

In Dawkins, the English court ruled that Rastafarians could not sue under the Race Relations Act

Think about why this is

Dred Scott v. Sanford (1857)

Infamous SCOTUS decision stating that Dred Scott did not have standing to challenge his slave status in federal court because he was not a citizen- no black people were citizens.

Yick Wo v. Hopkins (1886)

Facts: 200 Chinese applicants for wooden laundry license had been denied, whereas a very small number of white applicants had been denied.

SCOTUS ruled that although the impartial wording of the San Francisco Law, its application and biased enforcement violated the Equal Protection Clause.

Executive Order 9066

Executive order by FDR that required Japanese Americans to be removed from their homes and sent to internment camps

Reasons:

1. “Greedy farmer” white farmers were upset that Japanese farmers had more success

2. Racial stereotypes

3. Wartime hysteria

Strict Scrutiny

If a law differentiates on the basis of race, it must be narrowly tailored to satisfy a compelling state interest. There also must be the least burdensome alternative

Also used if a law infringes on a Constitutional right

Rational Basis Test

Ordinary laws must undergo this test to make sure there is a legitimate rationale for them

Korematsu v. U.S (1944)

Facts: Korematsu (a citizen) was ordered to an internment camp by the U.S. government but refused so that he could work his job. The U.S. government sent him to prison. He challenged Executive Order 9066, which allowed the internment of Japanese Americans.

SCOTUS stated that the President and Congress did not go beyond their war powers. It was a safe exercise of national security.

His conviction for the violation was overturned in a 1980s quorum nobis case but the case is technically still precedent (Trump v. Hawaii).

Plessy v. Ferguson

SCOTUS denied Plessy's argument that riding in separate cars based on race violates equal protection. “Separate but equal” facilities are consistent with the language of the 14th Amendment.

Loving v. Virginia (1967)

Virginia law prohibiting interracial marriage violated equal protection and due process. Rejected equal application theory.

Equal application theory

Rationale for VA antimiscegenation statute, stating that the statue was legitimate because it was applied equally to both white and black people.

Brown v. Board of Education (1954)

Overturned the “separate but equal” doctrine established in Plessy, since it is “inherently unequal” and implies that one group is stigmatized.

Relied heavily on social science: Clarks’ doll experiments showed that African American children showed preference for white dolls over African American dolls.

Brown II required that Brown I be applied “with all deliberate speed”

Cooper v. Aaron (1958)

Ruled that state officials are bound by federal court orders desegregating public schools and cannot nullify or delay them

Eisenhower had to place the Arkansas National Guard under federal command. Armed troops needed to escort the Black students into the school.

Trump v. Hawaii (2018)

Facts: Trump had signed multiple executive orders prohibiting entry into the country for citizens from countries with “heightened terrorism risks."
They had been challenged many times.

In 2018, SCOTUS ruled that the orders did not violate the Establishment clause and that the President had statutory authority to enforce them. Under the Immigration and Nationality Act, the President has broad discretion to suspend entry of non-citizens. It did not disfavor or favor any particular religion, since many Muslim and non-Muslim countries were included.

Students for Fair Admissions v. Harvard (2023)

SFFA sued Harvard, alleging that their admissions process violated Title VI of the Civil Rights Act by discriminating against Asian-American/white applicants in favor of underrepresented minority rights.

SCOTUS ruled that Harvard's admissions program violated equal protection, because it could not demonstrate its compelling state interest, failed to avoid racial stereotypes, and did not offer a logical endpoint for when it would cease.

Bakke v. University of California (1978)

SCOTUS found that the quota system (saving a specific # of seats for minority applicants) violates equal protection, but still allowed race to be used as one of several factors in admission, since attaining a diverse student body is a compelling state interest. Could be used as a “plus”

Grutter v. Bollinger (2003)

Equal Protection Clause does not prohibit UMich Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Each applicant undergoes a highly individualized review.

Fisher v. University of Texas (2012)

UT Austin's race-conscious admissions program is not a violation of the Equal Protection Clause

State action doctrine

Legal principle that requires government involvement before a plaintiff can claim a violation of federal constitutional rights

What constitutes state action or not?

Intent test

For a facially neutral law with a disparate impact, proof of intent is required in constitutional litigation- very difficult to prove

Unconscious racism

Coined by Charles Lawrence, it explores the role of stereotypes in shaping our unconscious racial motivations. These stereotypes are perpetuated in advertisements, films, children's books, etc.

Busing

A policy designed to achieve integration. Children were transported by bus to schools outside of their neighborhoods

Types of Political Systems

1. Mandatory Voting

2. Proportional vs. Winner Take All

3. Presidential vs. Parliamentary

Other forms of political participation

Protests, boycotts, speeches, campaign contributions, lobbying

Barriers to voting

Black codes, poll taxes, literacy tests, grandfather clause, white primaries, lengthy residency requirements

Constitutional Amendments

15th Amendment (1870): Guaranteed Blacks the right to vote

19th Amendment (1920): Guaranteed women the right to vote

24th Amendment (1964): Prohibited poll taxes

26th Amendment (1971): Set voting age to 18

Contemporary barriers to voting

Photo ID laws: upheld in Crawford vs. Marion County, Indiana in 2008

Denying votes to those w/ felony convictions, limiting access, restricting voting hours

Key legislation

Civil Rights Act of 1957- Set up U.S. Commission on Civil Rights

Civil Rights Act of 1964 addressed voting rights

Voting Rights Act of 1965 reinforced 15th Amendment

Voting Rights Act of 1970 guaranteed ballots in multiple languages

Americans with Disabilities Act of 1990 guaranteed accessibility

Shelby County v. Holder (2013)

Section 4 of the Voting Rights Act (requiring preclearance before changing election laws) is unconstitutional, since it imposes current burdens that are no longer responsive to the current conditions

Key cases on Political Representation/Reapportionment

1. Colegrove v. Green (1946)- reapportionment treated as a political question under the republican form of government clause

2. Baker v. Carr (1962)- Lack of reapportionment violated EPC

Shaw v. Reno (1993)

Creating congressional districts to maximize minority representation may violate EPC

Based on race in this case

Louisiana v. Callais (2026)

A state violates EPC by intentionally drawing legislative districts predominantly on the basis of race, unless such action is narrowly tailored to achieve a compelling government interest

Makes it much more difficult to prove a Section 2 violation (prohibits voting practices or procedures that discriminate on the basis of race)

Federal Election Campaign Act (FECA)

Focused on disclosure requirements for contributions, limits on media spending, and penalties for campaign law violations

Buckley v. Valeo (1975)

Restrictions on individual contributions to political campaigns and candidates did NOT violate First Amendment, but governmental restrictions on expenditures on candidates violated First Amendment, since they do not necessarily enhance the potential for corruption

O Brien Test

Regulation affecting expressive power is valid if…

1. It is within the government's constitutional power

2. It furthers an important or substantial government interest

3. The interest is content neutral

4. The restriction is not greater than necessary

Citizens United v. FEC (2010)

SCOTUS struck down corporate spending limits on campaigns under the First Amendment. This decision gave rise to super PACs (Obama) and basically deregulated money entering political campaigns

Super PAC

A U.S. political committee that can raise and spend unlimited amounts of money to advocate for and against political candidates

Ex. MAGA

Examples of some misogynistic customs

Sex selection, female circumcision, mass rape in wartime

Equal treatment model

Model of feminist jurisprudence coined by Wendy Williams that states men and women should be treated identically. If they are not, they risk going back into their “separate spheres”

Difference model

Model of feminist jurisprudence coined by Herma Hill Kay that states law should take into account “real biological differences” when they matter (like pregnancy)

Dominance Model

Model of feminist jurisprudence coined by Catharine Mackinnon that states that gender inequality is the result of corporate and military institutions, so we should reform those first. Sex discrimination is treated as a political and social power hierarchy

Critical Race Feminism

Model of feminist jurisprudence coined by Kimberle Crenshaw that critiqued traditional feminist jurisprudence frequently centered on the experiences of white women. Race and gender do not act independently; instead they interact to create distinct forms of marginalization and power dynamics.

The Feminine Mystique

Book by Betty Friedan that helped spark second-wave feminism (60s and 70s) in the U.S.

Debunked the societal belief that women's sole fulfillment is found in domesticity

Important Laws

1. Equal Pay Act of 1963 prohibited sex-based wage discrimination

2. Title VII of the 1964 Civil Rights Act

• Equal Employment Opportunities Commission enforces this

Roe v. Wade

A woman has the right to terminate her pregnancy because inherent in the due process clause of the 14th Amendment is a fundamental “right to privacy”

Highly controversial, limiting support for women's rights and the Equal Rights Amendment

Lilly Ledbetter Fair Pay Act of 2009

Directly reversed the decision in Ledbetter v. Goodyear (2007) and establishes that the 180 day statue of limitations for filing a wage discrimination lawsuit resets with each new paycheck affected by a discriminatory decision

Geduldig v. Aiello (1974)

Insuring disability from pregnancy complications would be too expensive and make the program impossible to maintain. California could constitutionally choose which disabilities to insure through the Disability Fund

Pregnancy Discrimination Act (1978)

Prohibits sex discrimination in the workplace based on pregnancy, childbirth, or related medical conditions

Added to Title VII

California Federal Savings and Loan Association v. Guerra (1985)

CA required employers to guarantee pregnancy leave, which the bank claimed pre-empted pregnant women (treated them preferentially). SCOTUS found no preemption.

Meritor Savings Bank v. Vinson (1986)

Sexual harassment does not need to only apply to economic injury, it can also be constituted as creating a “hostile work environment” according to the Civil Rights Act

Two Types of Sexual Harassment

1. Quid Pro Quo: involves a supervisor or person in authority conditioning job benefits or threats on an employee's submission to sexual advances

2. Hostile Work Environment: involves unwelcome sexual conduct that creates a hostile work environment

Extensions of Sexual Harassment

Schools, against men, same sex

Criticisms of Sexual Harassment Law

Do the laws chill free speech? Do they promote a victim mentality? Do they ignore structural problems?

How can society achieve gender equality?

Attitudinal changes, Me Too Movement, alternative policies, workplace trainings (though they fail)

Assimilation model of Culture

A process where an individual or minority completely adopts the cultural norms of a dominant society, often losing their original cultural identity

Accommodation Model of Culture

A process of integrating into a dominant culture while actively preserving and maintaining one's original parent culture identity and traditions

Kirpan Cases

1. People v. Singh (1987): Singh needed to remove his kirpan from the subway because religiously motivated conduct is not protected and the kirpan posed a violent threat

2. Cheema v. Thompson: Children needed to be allowed to go to public school, so the kirpan had to be minimized in a way that did not pose any dangerous threats

Dominos Pizza Co v. Kohli

A Sikh man with a long beard applied to work as the manager of Dominos. Dominos conducted a survey stating that people did not want to be served by such an individual. The case was settled

Criticisms of culture

1. Essentializing (reducing to stereotypes)

2. Static vs. dynamic culture

3. Hegemony

Enculturation

The process by which an individual adopts the norms of their surrounding culture. It is often unconscious.

Provocation defense

A defense that reduces a murder charge to voluntary manslaughter. The defendant acknowledges that extreme emotional distress clouded the person's judgment.

Relating to culture: would an objective reasonable person be provoked? This promotes Anglican ideals

Trujillo Garcia v. Rowland

Trujillo Garcia shot Rowland because he was provoked by an offensive term

Cultural Defense Test

1. Is the litigant a member of this ethnic group?

2. Does the group have such a tradition?

3. Was the litigant influenced by the tradition when they acted?

Only advances the defense, not the outcome

Specific intent

The motivation (the why) for committing an act

Types of crimes that require it: genocide, hate crimes, self-defense murders, sexual abuse

Krasniqi case

An Albanian man and his wife were terminated parental rights of their children because he was seen touching his daughter in the genital area in a public gymnasium, though that was a cultural practice in Albania

Examples of exemptions that have tried to be raised

1. Food safety laws: Chinese peking duck, Korean rice cakes

2. Ritual slaughter of animals in Jewish and Muslim culture

3. Noise laws like a call to prayer

Arguments for the cultural defense

EPC, right to fair trial, right to an attorney (competent enough to present these defenses), First Amendment speech and religion rights

Also Article 27 of the International Covenant on Civil and Political Rights

Arguments against the cultural defense

Misrepresentation/fraud, violation of other rights, identical treatment principle of equality, anarchy

Will Kymlicka

Canadian philosopher who argues that immigrants do not have cultural rights, but national minorities do. Immigrants voluntarily give up their cultural rights when they cross a border

Cultural Hegemony

Where a cultural majority leads a culturally diverse society and their worldview becomes the accepted cultural norm. It is largely quiet and unconscious

Developed by Italian Marxist Antonio Gramsci

Cultural Appropriation

The adoption of elements from a minority/marginalized culture by a majority culture, often without permission and for commercial gain

Many contested symbols include music, plants, names, and images