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The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani Jan 2020

The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani

All Faculty Scholarship

This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …

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Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Jun 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

All Faculty Scholarship

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

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James Wilson As The Architect Of The American Presidency, Christopher S. Yoo Jan 2019

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

All Faculty Scholarship

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …

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Foreword: Abolition Constitutionalism, Dorothy E. Roberts Jan 2019

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

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The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin Jan 2018

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

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Intersectionality And The Constitution Of Family Status, Serena Mayeri Jan 2017

Intersectionality And The Constitution Of Family Status, Serena Mayeri

All Faculty Scholarship

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

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The President's Wartime Detention Authority : What History Teaches Us, Anirudh Sivaram May 2015

The President's Wartime Detention Authority : What History Teaches Us, Anirudh Sivaram

Harvey M. Applebaum ’59 Award

This thesis examines the extent of the President’s wartime detention authority over citizens (in particular, detention authority pursuant to Article II of the U.S. Constitution) through a legal-historical lens. Some Presidents (Abraham Lincoln, Franklin Roosevelt, George W. Bush) have historically relied on Article II authority for detention, while others (Ulysses Grant, Barack Obama) have disclaimed the notion that such authority exists. Clarifying the scope and source of the Presidential detention authority over citizens bears both theoretical and real-world relevance. Theoretically, it lies at the confluence of two central American constitutional traditions – the separation of powers, and the protection of …

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Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

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"Displaced By A Force To Which They Yielded And Could Not Resist": A Historical And Legal Analysis Of Mayor And City Counsel Of Baltimore V. Charles Howard Et. Al, Matthew Kent Jan 2011

"Displaced By A Force To Which They Yielded And Could Not Resist": A Historical And Legal Analysis Of Mayor And City Counsel Of Baltimore V. Charles Howard Et. Al, Matthew Kent

Legal History Publications

The experience of the Baltimore Police Commissioners is instructive in understanding the state of affairs in Baltimore during the Civil War era. The removal of the commissioners by the Union Army and the subsequent civil trial, The Mayor and City Council of Baltimore v. Charles Howard, provides a window through which one may examine the historical, legal and political circumstances of the time. The legal status of the commissioners also sheds light on modern legal doctrine related to the detention of American citizens as “enemy combatants” without the benefit of certain constitutional guarantees. By analyzing the Howard case with a …

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Charge Of Chief Justice Durfee, Job Durfee Mar 1842