ERIC HEINZE, Queen Mary University of London, School of Law
Email: e.heinze@qmul.ac.uk

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this chapter, that approach is challenged. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

ANN PICCARD, Stetson University College of Law
Email: piccard@law.stetson.edu

In 1979, President Jimmy Carter signed the Convention on the Elimination of All Forms of Discrimination Against Women. Thirty years later, the U.S. has yet to ratify the Convention, let alone pass any of the necessary implementing legislation. Many scholars have propounded reasons why the United States should ratify this treaty, yet the question remains whether ratification would, in fact, accomplish anything at this late date. Some scholars propose that the U.S. should ratify the treaty for symbolic reasons, to help women everywhere. However, research shows that countries’ human rights records do not always coincide with their membership in human rights treaties. This article proposes the possibility that ratification of CEDAW could, in addition to not helping women in the U.S. or elsewhere, create problems in advancing women’s rights. Symbolic ratification of CEDAW, without full commitment to the treaty’s objects and purposes, could bring to an end any meaningful conversation about ongoing discrimination against women in the United States. Unless and until the U.S. internalizes the norms that are articulated in CEDAW, perhaps it is better if this country does not move forward with a hollow ratification that could prove to be worse than meaningless.

BEN SAUL, University of Sydney - Faculty of Law
Email: B.Saul@usyd.edu.au

This article examines the scope of the obligation under article 5 of the Genocide Convention to enact domestic legislation giving effect to the Convention, in particular to criminalise genocide in domestic law. That provision assumes central importance in giving domestic, practical effect to the Convention and its aspiration to prevent and punish genocide. The article examines the scope of article 5 in light of State practice on its implementation and in relation to the drafting history.

SUZETTE M. MALVEAUX, Catholic University of America - Columbus School of Law
Email: malveaux@law.edu

This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed to serve the underlying policy rationales of limitations law today. Although limitations periods have been a fixture in the American legal system for centuries, in general, little modern scholarship has explored the continued validity of their underlying purposes. The Tulsa litigation is a perfect test case. Such litigation presents both the starkest example of a stale claim (i.e., one that is decades old) and, at the same time, one of the most egregious circumstances under which equitable principles would conceivably apply (i.e., state-sanctioned violence and discrimination). The case provides an important lens through which scholars may examine the policy rationales for our limitations system. Central to limitations law is society’s recognition that there must be tradeoffs for a just and orderly legal system to prevail. Limitations law provides fairness to the defendant by providing repose, promoting accurate fact finding, and curtailing plaintiff misconduct - such as dilatory action and fraudulent litigation. Limitations law also promotes efficiency and ensures institutional legitimacy through the consistent application of neutral rules. Notwithstanding the many benefits of limitations law, the Anglo-American legal system has carved out numerous exceptions to the application of limitations periods to serve countervailing interests. Such exceptions include: Providing litigants their due process right to be heard; ensuring procedure does not trump substance; promoting institutional legitimacy through flexible and equitable considerations; developing the law; and promoting fairness to the plaintiff. Some argue that civil rights claims remote in time should be barred because their age complicates the identification of the parties, causation and remedies. They contend that such claims compromise deterrence, undermine repose or do not warrant equitable treatment. Others argue that these claims should survive limitations periods and be adjudicated on the merits because the claims fall within commonly recognized exceptions such as: equitable estoppel; equitable tolling; and accrual mechanisms like the discovery rule and the continuing violations doctrine. Or they contend that these claims fall outside of law governed by temporal restrictions altogether. This article explores such countervailing views in the context of African-American citizens (some over 100 years old) seeking restitution for a racial massacre that occurred over three-quarters of a century ago. Where the claims are so horrendous they cry out for equitable relief and yet so remote in time they seem insurmountable, it is important for courts to recognize that they have the tools to permit such claims to be heard on the merits, and the responsibility to examine when the underlying policy rationales for limitations law are not being served. This article is part of a series examining the impact of procedure on civil rights.

MICHAEL C. DORF, Cornell Law School
Email: mikedorf@gmail.com

As numerous commentators have observed, the Supreme Court’s ruling in Ashcroft v. Iqbal has profound implications for the law of pleading and supervisory liability in civil rights suits. Yet the case is important for the public understanding of American detainee policy as well. Throughout the Bush Administration and continuing into the Obama Administration, the government has sought to portray abusive treatment of detainees as the work of "a few bad apples," even as formerly secret documents reveal what was an official policy of abuse. In deeming the allegation that Iqbal's discriminatory mistreatment was ordered by the former Attorney General and FBI Director not "plausible," the Supreme Court lent its imprimatur to the false but widespread few-bad-apples narrative.

BRAD SNYDER, University of Wisconsin Law School
Email: bsnyder2@wisc.edu

Brown v. Board of Education is the sacred cow of American constitutional law. This Article explores how Brown achieved its most-favored-opinion status. Although recent scholarship about the constitutional canon suggests that the reverence for Brown is a product of the moral force of Civil Rights Movement and the efforts of liberal academics intent on preserving the Warren Court's legacy, this Article contends that Brown's exalted place in the constitutional canon was ultimately the work of conservatives. This Article advances recent canonization scholarship in three principal ways: First, it bifurcates the constitutional canon into an upper and lower canon. Second, it argues that conservatives are chiefly responsible for moving Brown into the upper canon. Third, it chronicles Brown's canonization by employing a novel methodological device - Supreme Court confirmation hearings. The hearings of post-1954 nominees suggest that conservative affirmed Brown's validity in order to get confirmed, and as Justices, they subsequently narrowed Brown's interpretation. Chief Justice William Rehnquist's 1971 and 1986 confirmation hearings began this pattern. The controversy over a memo endorsing Plessy v. Ferguson that Rehnquist wrote as a law clerk to Justice Jackson unwittingly cast Rehnquist in a leading role among conservatives in securing Brown's hallowed place in the constitutional canon.

SONIA KATYAL, Fordham University - School of Law
Email: skatyal@law.fordham.edu

Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,� “immoral,� or “scandalous,� a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging and immoral matter fail to substantively address the source-identifying functions that these marks often serve.

This Article starts from the premise that the best way to balance the tension between these two perspectives is to focus on the foundational role of the government in regulating the dual norms of both commerce and communication in trademark law. Borrowing from insights from critical race theory and anti-discrimination law, I argue, in this Article, that we need to grapple with the creation of a new kind of intersectionality among cultural symbols - an intersectionality that stems from the interaction of a trademark’s economic, commercial, and cultural identities. This project requires us to reexamine the very nature of the trademark itself. While most scholars classify trademarks as private goods, I argue that they operate much more like other public goods, a point that the laws of trademark often overlook, and which sets the foundation for the constitutional difficulties that pervade trademark analysis. By studying how intersectionality might help to resolve the multifaceted role that trademarks inhabit, we also, in turn, refashion the notion of intersectionality itself so that it takes a fuller account of the role of commodification in affecting the governance of identity within the commercial and political marketplaces of speech.

ANN BARTOW, University of South Carolina - School of Law
Email: bartow@law.sc.edu

Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to defend otherwise defenseless people whose reputations have been sullied on the Internet Of course these companies charge a fee and place particular emphasis on women who they recognize as potential clients. This article raises three concerns about these businesses. First, these companies have economic incentives to foster conditions online that perpetuate acts of online harassment, as the more harassment there is online, the greater the number of potential clients. These companies are also incentivized to create fora with hostile climates and to stir up trouble themselves. Second, these companies have economic incentives to oppose legal reforms that might enable online defamation and harassment victims to seek recourse from law enforcement agencies or through the courts. And finally, though they cloak themselves in the mantel of protectors of the innocent, their real agenda is to sell their services to wealthy corporations and individuals for far more nefarious purposes: to help bad actors hide negative information about themselves. This practice creates information asymmetries that can harm anyone who detrimentally relies on what they incorrectly assume to be the best available information and can lead to increases in the sorts of financial losses and personal vulnerability that access to unmanipulated Internet search results might otherwise reduce.