Law Commons^™

Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane

All Faculty Scholarship

The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The …

Testimony On The Employment Non-Discrimination Act (Enda) And The Religious Exemption : Hearing Before The H. Comm. On Education And Labor, 111th Cong., Sept. 23, 2009 (Statement Of Adjunct Professor David N. Saperstein, Geo. U. L. Center), David N. Saperstein

Testimony Before Congress

We are long past the point when our laws should permit discrimination against any individual because of their sexual orientation. Just as we do not tolerate behavior that discriminates based on race, gender, national origin or religion, so should we be clear about discrimination based on the characteristic of being gay or lesbian. For many of America’s faith traditions, this is a religious value. It is a moral value. And for all of us, it is of great social and economic value, as evidenced by the nearly 90% of Fortune 500 companies that already have policies consistent with ENDA. They …

Sexuality, Religion, And The Right Of Conscience, Emily R. Gill

Schmooze 'tickets'

No abstract provided.

'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's …

Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, José F. Anderson

All Faculty Scholarship

Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants' failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Faculty Working Papers

This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Lovell Banks

Faculty Scholarship

This article examines the conflicting film narratives about the internment from 1942 through 2007. It argues that while later film narratives, especially documentaries, counter early government film narratives justifying the internment, these counter-narratives have their own damaging hegemony. Whereas earlier commercial films tell the internment story through the eyes of sympathetic whites, using a conventional civil rights template … Japanese and other Asian American documentary filmmakers construct their Japanese characters as model minorities — hyper-citizens, super patriots. Further, the internment experience remains largely a male story. With the exception of Emiko Omori’s documentary film memoir, Rabbit in the Moon (2004), …

Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks

Faculty Scholarship

In this Article Professor Banks argues that what makes many of filmmaker John Waters early films so subversive is his use of the “white-trash” body—people marginalized by and excluded from conventional white America—as countercultural heroes. He uses the white trash body as a surrogate for talk about race and sexuality in the early 1960s. I argue that in many ways Waters’ critiques of mid-twentieth century American society reflect the societal changes that occurred in the last forty years of that century. These societal changes resulted from the civil rights, gay pride, student, anti-war and women’s movements, all of which used …

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

The Violent Bear It Away: Emmett Till & The Modernization Of Law Enforcement In Mississippi, Anders Walker

All Faculty Scholarship

Few racially motivated crimes have left a more lasting imprint on American memory than the death of Emmett Till. Yet, even as Till's murder in Mississippi in 1955 has come to be remembered as a catalyst for the civil rights movement, it contributed to something else as well. Precisely because it came on the heels of the Supreme Court's 1954 ruling in Brown v. Board of Education, Till's death convinced Mississippi Governor James P. Coleman that certain aspects of the state's handling of racial matters had to change. Afraid that popular outrage over racial violence might encourage federal intervention in …

The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout

Faculty Working Papers

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …

Do We Care Enough About Racial Inequality? Reflections On The River Runs Dry, Guy-Uriel Charles

Faculty Scholarship

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 University of Pennsylvania Law Review 1075 (2009)

From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker

All Faculty Scholarship

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the …

Defining Race: The Obama Phenomenon And The Voting Rights Act, Janai S. Nelson

Faculty Publications

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama's successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would …

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 Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …

Dissident Citizen, The Symposium: Sexuality & Gender Law: Assessing The Field, Envisioning The Future, Sonia K. Katyal

Faculty Scholarship

We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of GLBT migration tend to remain focused on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a land of opportunity and liberation, a place that represents freedom from discrimination and economic opportunity. But this narrative also elides the complexity that erupts from grappling with the reality that many other jurisdictions outside of the United States can be …

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Faculty Publications

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.

Integration, Reconstructed, Olatunde C.A. Johnson

Faculty Scholarship

This article examines Parents Involved for the light it sheds on integration's continuing relevance to educational and social equity. Part I examines the story of school integration in Jefferson County and shows how this largely successful metropolitan integration plan challenges claims of racial integration's futility. Part II puts forward the empirical evidence that plaintiffs in Parents Involved used in seeking to establish that school boards have a compelling interest in promoting racial integration and avoiding the harm of racially isolated schools. This part argues that the empirical case for racial integration, while not without limitations, moves beyond stigmatization, psychological harm, …

"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civilrights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, …

Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, Stephen F. Smith

Journal Articles

The opinions of Justice Thomas reflect a jurisprudence that is uniquely his own. His well-known commitment to textualism and originalism combines with a weak commitment to stare decisis on constitutional questions. This often puts Thomas at odds with Justice Scalia and other Justices who are far more willing to defer to precedents with which they disagree. The most distinctive aspect of Thomas's jurisprudence, however, involves cases of particular concern to black Americans. In these cases, his originalism and textualism are powerfully supplemented by another -ism—namely, "black nationalism."

Throughout his tenure, Justice Thomas has repeatedly explored the implications of controversial rulings …

A New E.R.A. Or A New Era? Amendment Advocacy And The Reconstitution Of Feminism, Serena Mayeri

All Faculty Scholarship

Scholars have largely treated the reintroduction of the Equal Rights Amendment (ERA) after its ratification failure in 1982 as a mere postscript to a long, hard-fought, and ultimately unsuccessful campaign to enshrine women’s legal equality in the federal constitution. This Article argues that “ERA II” was instead an important turning point in the history of legal feminism and of constitutional amendment advocacy. Whereas ERA I had once attracted broad bipartisan support, ERA II was a partisan political weapon exploited by advocates at both ends of the ideological spectrum. But ERA II also became a vehicle for feminist reinvention. Congressional consideration …

Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin

All Faculty Scholarship

There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the …

Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

Publications

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …

Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley

Articles

This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desgregation In Dallas, Texas, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform litigation a judicial relic. Part II examines the historical development of institutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post-Brown v. Board of Education era and contrasts those cases with Judge Sanders's rulings on …