Digital Commons Network^™

The Racialized Violence Of Police Canine Force, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

The Clinic As A Site Of Grounded Pedagogy, Madalyn K. Wasilczuk

Faculty Publications

Legal education tends to focus on teaching students federal law from hefty casebooks, inculcating the ability to "think like lawyers." In a sea of Socratic lectures and hypotheticals, students often take refuge in clinics as an island of practical skills-building, client centeredness, and individual fulfillment. Yet even clinics sometimes fail to highlight for students how the place where they practice, with its particular political context and history, shapes their clients' lives and legal problems. This Article describes the law school clinic as a site of grounded pedagogy: a teaching method that centers the con­nection between local history and the present …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

Faculty Publications

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious …

For Their Own Good: Girls, Sexuality, And State Violence In The Name Of Safety, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Darnell, Latoya, Brad, And Laurie: Lawyers’ Responses To Email Requests For Representation, Elizabeth S. Chambliss

Faculty Publications

No abstract provided.

The Lived Experience Of Health Insurance: An Analysis And Proposal For Reform, Jacqueline R. Fox

Faculty Publications

People are carrying tens of billions of dollars of medical debt, much of it in collections. We delay going to the Emergency Department while having a heart attack because it may cost too much. Doctors try to help insured patients find the best coupon to offset the high copayment for a necessary prescription drug. For inexpensive drugs, insurers make a profit by clawing back copayments that exceed what the drug costs. People who are already arbitrarily disadvantaged because of race, gender, health status, LGBTQ status, obesity, etc. are disproportionately burdened by all of this.

No one would design a system …

Institutional Betrayals As Sex Discrimination, Emily Suski

Faculty Publications

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe …

Rights To Nowhere: The Idea's Inadequacy In High-Poverty Schools, Claire Raj

Faculty Publications

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, …

The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller

Faculty Publications

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled …

The Dental Health Of Rural Elderly People And Its Social Justice Implications, Health In The Hills: Understanding The Impact Of Health Care Law In Rural Communities, Jacqueline R. Fox

Faculty Publications

No abstract provided.

Preemption & Gender & Racial (In)Equity: Why State Tort Law Is Needed In The Cosmetic Context, Marie C. Boyd

Faculty Publications

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal …

Unequal Investment: A Regulatory Case Study, Emily R. Winston

Faculty Publications

Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID-19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy.

Many Americans do not benefit when the stock market soars because they do not have the means to invest. However, even ordinary American families who do have wealth to invest in the capital markets will face enormous obstacles in narrowing the wealth divide through investment. This is because ordinary …

Adjudicating Identity, Laura Lane-Steele

Faculty Publications

No abstract provided.

Developing Police, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Democracy Avoidance In Tax Lawmaking, Clint G. Wallace

Faculty Publications

The Tax Cuts and Jobs Act was the most significant tax law in more than three decades, but the strategy for getting it enacted included a variety of maneuvers to avoid public scrutiny. As a result, many taxpayers did not know how they would be affected until they filed their own tax returns more than a year later. This Article identifies this lack of transparency as part of a persistent pathology of avoiding and constraining democratic inputs and responsiveness in U.S. federal tax lawmaking. Indeed, some scholars and policy makers have sought to channel tax lawmaking away from democratically grounded …

Modernizing Capacity Doctrine, Lisa V. Martin

Faculty Publications

Federal capacity doctrine—or the rules establishing whether and how children’s civil litigation proceeds—has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children, and of adolescents in particular, has significantly evolved. This Article contends that it is well beyond time to modernize the capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

The Title Ix Paradox, Emily Suski

Faculty Publications

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual assaults happen to children in school each year. Title IX, a potentially powerful civil rights law, should protect them. Title IX’s main purpose is to protect individuals from sex discrimination, including in the form of sexual harassment and assault, in public schools. Yet Title IX …

Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug

Faculty Publications

For decades, the Indian Child Welfare Act (ICWA) has been considered the “gold standard” in Indigenous child protection. As a result, Indigenous advocates around the world have sought the passage of similar legislation. However, it is far from clear that the benefits of the ICWA are easily exported. The ICWA is based on a recognition of tribal sovereignty. Unfortunately, many of the countries that could benefit from ICWA-type protections do not recognize the sovereignty of their Indigenous populations.

This Article explores how the ICWA would have to be adapted to work in such countries and whether the needed changes would …

Of American Fragility: Public Rituals, Human Rights, And The End Of Invisible Man, Etienne C. Toussaint

Faculty Publications

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police …

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically, distributive justice …

Tax Policy And Our Democracy, Clint Wallace

Faculty Publications

No abstract provided.

Lessons From Disaster: Assessing The Covid19 Response In Youth Jails & Prisons, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

The Rule Of Law Collaborative: A Center For Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels

Faculty Publications

No abstract provided.

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …

Data-Driven Law: Data Analytics And The New Legal Services, Eve Ross

Faculty Publications

No abstract provided.

Harassment, Technology, And The Modern Worker, Joseph Seiner

Faculty Publications

This symposium paper explores why sex discrimination is so prevalent in the technology sector workplace. This paper further examines what can be done to address these problems, and how employers can work to minimize the types of gender discrimination issues that currently exist in the modern economy. This ongoing issue must be examined much more closely by technology companies given the potential for this type of harm across the entire sector. There are many things that can be done to reduce this form of discrimination and to limit the potential liability for employers.

Freezing The Future: Elective Egg Freezing And The Limits Of The Medical Expense Deduction, Tessa R. Davis

Faculty Publications

Section 213 of the Internal Revenue Code (the Code) allows a deduction for unreimbursed expenses for medical care. To qualify as medical care, an individual’s outlay must meet the statutory definition of “medical care” set forth in §213. Specifically, an outlay must be for care that is either for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” Many costs raise few interpretive challenges. When an individual receives chemotherapy, for example, the costs tied to that care clearly satisfy the disease prong of §213. But as medicine …