Digital Commons Network^™

Colorblind Capture, Jonathan Feingold

Faculty Scholarship

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District …

Civil Rights Catch 22s, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro

Faculty Scholarship

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of …

Deficit Frame Dangers, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.

Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. …

Toward Establishing A Pre-Extinction Definition Of 'Nationwide Injunctions', Portia Pedro

Faculty Scholarship

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There …

A New Compact For Sexual Privacy, Danielle K. Citron

Faculty Scholarship

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden.

Privacy law is failing us. Our …

Crisis? Whose Crisis?, Jack M. Beermann

Faculty Scholarship

Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and …

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose

Faculty Scholarship

Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury …

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

Reconceptualizing The Harms Of Discrimination: How Brown V. Board Of Education Helped To Further White Supremacy, Angela Onwuachi-Willig

Faculty Scholarship

For decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Prejudice, Constitutional Moral Progress, And Being "On The Right Side Of History": Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain

Faculty Scholarship

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents In Masterpiece Cakeshop Ltd, Et Al V. Colorado Civil Rights Commission, Angela Onwuachi-Willig, Catherine E. Smith, Laura Fontana, Tanya Washington, Barbara Bennett Woodhouse

Faculty Scholarship

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational …

From Outlaw To Outcast To In-Law? Contesting The Perils Of Marriage Equality, Linda C. Mcclain

Faculty Scholarship

I am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in …

The Civil Rights Act Of 1964 And 'Legislating Morality': On Conscience, Prejudice, And Whether 'Stateways' Can Change 'Folkways', Linda C. Mcclain

Faculty Scholarship

Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld

Faculty Scholarship

A state’s decision whether to expand Medicaid has become a highly politicized issue, spawning countless news stories and on-going debate. However, this Essay takes a step back from that highly charged discourse and situates Medicaid expansion in its historical context. We reveal that this latest change universalizes the program, holding the power to finally realize President Johnson’s vision for the Great Society, almost fifty years later. Medicaid can be understood as a universal program for three reasons: (1) the percentage of thepopulation of children, pregnant women, and non-elderly adults it covers; (2) the degree to which Medicaid funds long-term care …

Ordered Liberty: Response To Michael Dorf, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

We appreciate Michael Dorf’s serious engagement with our book and his conclusion that “it responds effectively to the charge that liberalism focuses on rights to the exclusion of responsibilities.”1 He charges us, however, with an “errant theodicy” – with making the “claim that we have . . . the freedoms we have in virtue of a freestanding principle that respectful treatment of persons requires granting them autonomy as responsibility.”2 He also criticizes us for deriving basic liberties from a “freestanding interest in autonomy.”3 In this response we aim to clarify our argument concerning responsibility as autonomy and to reject the …

Next Generation Of Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Angela Onwuachi-Willig, Anthony Alfieri

Faculty Scholarship

This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in ways …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Hotel, Inc. V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Cyber Civil Rights, Danielle K. Citron

Faculty Scholarship

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital "scarlet letters" that ruin reputations. Today's …

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

Qualified Immunity And Constitutional Avoidance, Jack M. Beermann

Faculty Scholarship

The Supreme Court’s elimination of the subjective element of the qualified immunity defense in constitutional tort cases had the unanticipated side effect of creating the potential for constitutional stagnation. To avoid this stagnation and although it appears to violate the general practice of constitutional avoidance, in Saucier v. Katz, the Court held that federal courts must decide the constitutional merits before deciding whether the defendant is immune from damages relief. Lower court judges and some Supreme Court Justices were unhappy at the prospect of addressing constitutional issues in all immunities cases, especially in those cases in which it was clear …

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …