Digital Commons Network^™

The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii

University of Colorado Law Review

No abstract provided.

Racecraft And Identity In The Emergence Of Islam As A Race, Cyra Akila Choudhury

University of Cincinnati Law Review

Can a religion, over time and through its social and legal resignification, come to be a race? Drawing on Critical Race Theory (“CRT”), Critical Discourse Theory, the work of Karen E. and Barbara J. Fields and Cedric Robinson, this article argues that Islam has emerged as a race and Muslims as a racial group. To support the claim, Part I examines the theoretical basis for the argument. Applying the concept of “racecraft,” the article theorizes that racism produces both the racial group and race. As many have already argued, race is not based in biology; it is not a fact …

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

The 1676 Project: Black And White Together In The U.S.A., Danny Duncan Collum

The Journal of Social Encounters

America’s post-George Floyd racial reckoning has brought a new focus on the country’s history of enslavement, segregation and systemic racism. However, this reckoning has often failed to recognize that the roots of systemic racism lie in the need of the wealthy planters in colonial Virginia to divide the African and English indentured servants who constituted a majority threatening to elite power. Nor do contemporary versions of U.S. history always account for the persistent reoccurrence of class-based interracial movements, such as the late 19^th century Populists, or their promise as a long-term solution to the country’s racial divides.

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Trump’S Insurrection: Pandemic Violence, Presidential Incitement And The Republican Guarantee, Elizabeth M. Iglesias

University of Miami Race & Social Justice Law Review

Our own experience has corroborated the lessons taught by the examples of other nations; . . . that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy …

How The Conflict Between Anti-Boycott Legislation And The Expressive Rights Of Business Endangers Civil Rights And Antidiscrimination Laws, Debbie Kaminer, David Rosenberg

University of Richmond Law Review

This Article examines how opponents of anti-BDS laws may extend First Amendment rights in the business context to a point at which they actually threaten the validity of much antidiscrimination legislation. Part I discusses the BDS movement and state-based initiatives that attempt to penalize businesses that actively engage in a boycott of Israel. It examines the handful of cases in which federal courts have addressed the constitutionality of laws that require state contractors to affirm that they are not actively boycotting that country. Part II transitions to a discussion of the ways the Supreme Court has historically resolved conflicts between …

Home Equity: Rethinking Race And Federal Housing Policy, Sarah E. Waldeck, Rachel D. Godsil

Faculty Publications & Other Works

Neighborhoods shape every element of our lives. Where we live determines economic opportunities; our exposure to police and pollution; and the availability of positive amenities for a healthy life. Home inequity—both financial and racial—is not accidental. Federal government programs have armed white people with agency to construct “white” spaces while stigmatizing “Black” spaces. The urgency of addressing structural injustice in housing has been laid bare by police-involved shootings and the disparate death rates linked to COVID-19.

Using political philosopher Tommy Shelbie’s theory of corrective justice, this Article explores the historical and present-day harms that need to be rectified and then …

Home Equity: Rethinking Race And Federal Housing Policy, Rachel D. Godsil, Sarah E. Waldeck

Faculty Publications & Other Works

Neighborhoods shape every element of our lives. Where we live determines economic opportunities; our exposure to police and pollution; and the availability of positive amenities for a healthy life. Home inequity—both financial and racial—is not accidental. Federal government programs have armed white people with agency to construct “white” spaces while stigmatizing “Black” spaces. The urgency of addressing structural injustice in housing has been laid bare by police-involved shootings and the disparate death rates linked to COVID-19.

Using political philosopher Tommy Shelbie’s theory of corrective justice, this Article explores the historical and present-day harms that need to be rectified and then …

Conscience In Commerce: Conceptualizing Discrimination In Public Accommodations, Amy J. Sepinwall

Connecticut Law Review

According to much current law and theory, a public accommodation that offers a good or service to one customer cannot refuse to provide that same good or service to another patron simply because of the latter’s identity. Thus, in many jurisdictions, reception hall owners must rent their spaces to both a Black Baptist Church and the Christian Identity KKK, wedding vendors must sell their goods to a marrying couple no matter the sex of the couple’s members, and foster parent agencies must serve same- and opposite-sex parenting duos alike. Call the principle underpinning this policy the “Equal Access” principle: The …

American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis

Fordham Law Review

This Essay suggests that the unseen presence of blacks and other underrepresented groups (such as women, minorities, LGBTQ individuals, and persons with disabilities) in the shadows of the development of international arbitration law in the United States helps us to see that diversity, while unrecognized, has been inherent in American international arbitration for hundreds of years.

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

Exploring Northern Identity Through Historical Analysis Of Cincinnati’S Antebellum Period, Avery Ozimek

Freedom Center Journal

This essay explores the author's attempt to find a truer Northern identity, different from the one taught in school. It looks at Cincinnati during America’s Antebellum period, a historical period generally seen as one marked by “a nation polarized by specific regional identities. The South held a pro-slavery identity . . . while the North largely held abolitionist sentiments and opposed the institution’s westward expansion.” During this period, Ohio’s constitution may have been anti-slavery, however, the state’s Black Codes, race riots, and anti-abolitionist sentiments told a different story than Ohio’s constitution. The darker history of Antebellum Cincinnati often goes untold, …

Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd

UF Law Faculty Publications

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to …

The Superfluous Fifteenth Amendment?, Travis Crum

Scholarship@WashULaw

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Teaching With Feminist Judgments: A Global Conversation, Susan Frelich Appleton, Gabrielle J. Appleby, Ross Astoria, Linda L. Berger, Bridget J. Crawford, Sharon Cowan, Rosalind Dixon, Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa Munro, Kathryn M. Stanchi, Pam Wilkins

Scholarship@WashULaw

This conversational-style essay is an exchange among fourteen professors — representing thirteen universities across five countries — with experience teaching with feminist judgments. Feminist judgments are “shadow” court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases.

This essay begins to explore …

Racial Purges, Robert L. Tsai

Michigan Law Review

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.

The United Kingdom Bill Of Rights 1998: The Modernisation Of Rights In The Old World, Clive Walker, Russell L. Weaver

Russell L. Weaver

Into a steadfastly conservative constitutional landscape, the United Kingdom Parliament has now introduced a Bill of Rights, the Human Rights Act of 1998, which takes effect in October 2000. The Act provides for a full catalogue of civil and political rights which are enforceable by the courts. This development raises two questions in evaluating the future of English law. First, does this signify the dawn of a new British radicalism? And second, why has it happened now? In answering these questions in relation to England and Wales, Part I of this Article provides an introduction to the traditional treatment of …

'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Faculty Scholarship

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force …

Safe Streets, Inc. : The 'Hustle' To End Black Gang Violence In Philadelphia, 1969-1976, Menika Dirkson

Arlen Specter Center Research Fellowship

From 1962 to 1968, gang stabbings and murders in Philadelphia drastically increased, inspiring Philadelphia District Attorney Arlen Specter (from 1965-1973) to establish Safe Streets, Inc. in August 1969 as a non-profit, anti-gang program designed to reduce gang violence, end turf wars between rival gangs, and provide social services like job training and academic tutoring to juveniles. Since the program came into existence amidst the Civil Rights Movement (1954-1968), numerous cases of police brutality, and over 200 race riots in post-industrial cities, the yearly Law Enforcement Assistance Administration (LEAA) grant from the federal government offered to cities under the Omnibus Crime …

Publicly Charged: A Critical Examination Of Immigration Public Benefit Restrictions, Cori Alonso-Yoder

Articles in Law Reviews & Other Academic Journals

Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration policies …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

Articles

In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

Discriminatory Nationality Laws Must Be Eliminated In Order To Eradicate Statelessness, Neda Shaheen

DePaul Journal for Social Justice

No abstract provided.

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.

Maine Law Review

The Second Annual Frank M. Coffin Lecture on Law and Public Service was held on October 7, 1993. Professor Arthur M. Schlesinger, Jr. presented "Multiculturalism and the Bill of Rights."

An Unseen Light, Aram Goudsouzian, Charles W. Mckinney, Jr.

Civil Rights

In An Unseen Light: Black Struggles for Freedom in Memphis, Tennessee, eminent and rising scholars present a multidisciplinary examination of African American activism in Memphis from the dawn of emancipation to the twenty-first century. Together, they investigate episodes such as the 1940 "Reign of Terror" when black Memphians experienced a prolonged campaign of harassment, mass arrests, and violence at the hands of police. They also examine topics including the relationship between the labor and civil rights movements, the fight for economic advancement in black communities, and the impact of music on the city's culture. Covering subjects as diverse as politics, …

Legislative, Executive, And Judicial Shaping Of The Foreign Intelligence Surveillance Act (Fisa) And The Need For A Cleared Federal Public Defender, Max W. Rerucha

DePaul Journal for Social Justice

No abstract provided.

Behind The Numbers: Conditions Of Schooling In Boston (1981), Marcy Murninghan

New England Journal of Public Policy

This article includes portions of a report on the structure, governance, operations, and effectiveness of the Boston School Committee that was commissioned by the Boston Municipal Research Bureau in 1980. The passages provide an overview of the mandate, background, and recommendations, examining how a set of prominent professionals and citizens viewed the problem facing school department governance, including its isolation and the longstanding credibility gap fueled by patronage politics. It also looks at continued tensions between “equality” and “quality,” which occupied the heart of court-ordered desegregation; rising demands on a system that lacked the capacity to serve a broad array …