Digital Commons Network^™

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

The Search For Protection For Stateless Refugees In The Middle East: Palestinians And Kurds In Lebanon And Jordan, Susan M. Akram

Faculty Scholarship

Most Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in …

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

Reforming Policing, André Douglas Pond Cummings

Faculty Scholarship

Law enforcement killing of unarmed black men and police brutality visited upon minority citizens continues to confound the United States. Despite protests, clarion calls for reform, admitted training shortcomings and deficiencies among U.S. law enforcement officers, conferences, summits, and movements to reform policing, the solution to ending undisciplined police violence and the hostile killings of unarmed minority individuals at the hands of U.S. police seems to elude us. Why should this be? The United States is home to some of the most creative, innovative, pathmarking, and course-changing thinkers the world has ever known. This challenge — police killing of unarmed …

What About #Ustoo?: The Invisibility Of Race In The #Metoo Movement, Angela Onwuachi-Willig

Faculty Scholarship

Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the …

Martin Luther King Jr. And Pretext Stops (And Arrests): Reflections On How Far We Have Not Come Fifty Years Later, Tracey Maclin, Maria Savarese

Faculty Scholarship

By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, …

Race And Assisted Reproduction: Implications For Population Health, Aziza Ahmed

Faculty Scholarship

This Article emerges from Fordham Law Review's Symposium on the fiftieth anniversary of Loving v. Virginia,¹ the case that found antimiscegenation laws unconstitutional. ² Inspired by the need to interrogate the regulation of race in the context of family, this Article examines the diffuse regulatory environment around assisted reproductive technology (ART) that shapes procreative decisions and the inequalities that these decisions may engender. ³ ART both centers biology and raises questions about how we imagine our racial futures in the context of family, community, and nation. ⁴ Importantly, ART demonstrates how both the state and private actors shape family …

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Black, White, And Blue: Bias, Profiling, And Policing In The Age Of Black Lives Matter, Bridgette Baldwin

Faculty Scholarship

The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent …

Constitutional Law—Do Black Lives Matter To The Constitution?, Bruce K. Miller

Faculty Scholarship

Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present …

Foreword—Police Misconduct And Kibbe V. City Of Springfield, Harris Freeman

Faculty Scholarship

The Law Review’s 2017 symposium, “Perspectives on Racial Justice in the Era of #BlackLivesMatter,” appropriately opened with a panel that addressed the ongoing challenge of combating police misconduct, as seen through the lens of Kibbe v. City of Springfield, a civil rights case that unfolded in Western Massachusetts and reached the United States Supreme Court thirty years ago. Kibbe presented the Court with the question of what the proper standard of liability should be for a municipality accused of a civil rights violation under 42 U.S.C. § 1983 for inadequately training a police officer who violates a person’s civil …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

From Loving V. Virginia To Washington V. Davis: The Erosion Of The Supreme Court's Equal Protection Intent Analysis, Angela Onwuachi-Willig

Faculty Scholarship

In 1967, the United States Supreme Court issued an opinion that contained its most searing and explicit condemnation of white supremacy: Loving v. Virginia. At issue in Loving was the constitutionality of a statutory scheme in the state of Virginia that prohibited marriages between individuals solely on the basis of race. Among other things, provisions in this statutory scheme punished intermarriage between a "white person" and a "colored person," meaning not only Blacks, but also Asian Americans and American Indians who did not fall under the Pocahontas Exception. The provisions also punished evasion of the state's interracial marriage ban by …

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose

Faculty Scholarship

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …

The Culturally Proficient Law Professor: Beginning The Journey, Anastasia M. Boles

Faculty Scholarship

No abstract provided.

Judicial Intervention As Judicial Restraint, Guy-Uriel Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan …

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter

Faculty Scholarship

In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical …

Excavating Race-Based Disadvantage Among Class-Privileged People Of Color, Khiara Bridges

Faculty Scholarship

The aim of this article is to begin to theorize the fraught space within which class-privileged racial minorities exist — the disadvantage within their privilege. The article posits that the invisibility of the racial subordination of wealthier people of color (that is, their marginalization on account of their race) is fertile soil for the germination of post-racialism — the sense that we, as a nation, have overcome our racial problems. The dramatic visibility of the minority poor’s suffering, combined with the relative invisibility of the suffering of those minorities who are not poor, breeds the belief that class is now …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth." This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we …

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Faculty Scholarship

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup …

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …

Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg

Faculty Scholarship

“If you’re afraid to offend, you can’t be honest.”

“If you offend me, I can’t hear what you’re trying to tell me.”

—overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …