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First Impressions, an online companion to the Michigan Law Review, publishes
op-ed length articles by academics, judges, and practitioners in an
online symposium format. This extension of our printed pages
facilitates quick dissemination of the legal community’s initial
impressions of important judicial decisions, legislative developments,
and timely legal policy issues.
The Executive Editor of First Impressions (mlr.fi@umich.edu) welcomes your
comments and suggestions on topics for future issues.
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Volume 107, No. 4 (March 2009)
An Online
Symposium on
Comparative Equality
[View PDF of
entire symposium]
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Around the world, there are various legal approaches to equality. For instance, France does not recognize minorities—its theory being that race and ethnicity should not be recognized, and everyone is simply French. However, racial clashes in France have made headlines in recent years. South Africa, on the other hand, built its constitution around a substantive concept of equality. Nations vary on the extent to which they promote social inclusion. Yet substantial equality issues remain. Across the world, differing concepts of equality in the law (i.e. substantive, formal / Aristotelian) may have similar or different outcomes. This symposium addresses how legal approaches to equality affect social justice.
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The Developing Equality Jurisprudence in South Africa
[HTML] [PDF]
Karthy Govender, University of Kwazulu-Natal, South Africa Human Rights Commission
Apartheid was technically about separateness, but it was fundamentally about inequality. The founding premise of the ideology was to preserve the total hegemony of white South Africans. The liberation organizations opposing the apartheid regime sought to affirm that the country belonged to all those that lived in it. Thus, it is unsurprising that the commitment to equality is one of the founding values of the Constitution and an indelible thread woven throughout the fabric of the Bill of Rights. After some misstatements about certain rights being more important than others, courts have interpreted rights in the Bill of Rights to be of equal worth. However, the centrality of the right to equality cannot be gainsaid.
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An Agenda for the Obama Administration on Gender Equality: Lessons from Abroad
[HTML] [PDF]
Adrien K. Wing & Samuel P. Nielson, University of Iowa College of Law
President Barack Obama came into office with a wealth of good will after winning the historic 2008 presidential election to become the first African-American commander-in-chief. Among the many daunting issues we hope he will tackle is one that Abigail Adams mentioned to her husband John in 1776: remember the ladies. How should our President and his new administration affect social justice for women?
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Substantive Equality in the European Court of Human Rights?
[HTML] [PDF]
Dr. Rory O'Connell, Human Rights Centre, School of Law, Queen’s University of Belfast
The European Court of Human Rights ("ECtHR") has a distinguished track record. Established under the European Convention on Human Rights 1950 ("ECHR"), it was the world’s first international human rights court. It decides thousands of cases every year, and its opinions are cited world-wide. For most of its history, the Court’s jurisprudence on equality was uninspiring, as it was based on a formal conception of equality. In recent years, however, the ECtHR has begun to give equality more substantive content.
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Can Equality Survive Exceptions?
[HTML] [PDF]
Daphne Barak-Erez, Tel-Aviv University
The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm?
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Competences of the "Union" and Sex Equality: A Comparative Look at the European Union and the United States
[HTML] [PDF]
Barbara Havelková, University of Oxford, Exeter College
The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.
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Recognition of Group Rights as Requisite to Substantive Equality Goals
[HTML] [PDF]
Kathrina Szymborski, University of Michigan Law School
Courts, legislatures, and scholars are increasingly turning away from traditional Aristotelian thinking in favor of a substantive, pro-active approach to equality. Under the substantive approach, the identification and eradication of systematic discrimination replace an adherence to neutral principles. This Comment argues that while a substantive approach is the most effective way to bring about true equality, it will not succeed unless it centers on protecting group rights. State decision-makers and international human rights advocates must focus on group experiences in order to create societies where no one is favored based on immutable characteristics.
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