Law Commons^™

Reproducing Gender And Race Inequality In The Blawgosphere, Jane C. Murphy, Solangel Maldonado

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The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this …

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

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In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Voting Realism, Gilda R. Daniels

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Since Shelby County v. Holder, the country has grown accustomed to life without the full strength of the Voting Rights Act. Efforts to restore Section 4 have been met with calls to ignore race conscious remedies and employ race neutral remedies for modern day voting rights violations. In this new normal, the country should adopt “voting realism” as the new approach to ensuring that law and reality work to address these new millennium methods of voter discrimination.

Intersectionality And The Constitution Of Family Status, Serena Mayeri

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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 …

Crossing Two Color Lines: Interracial Marriage And Residential Segregation In Chicago, Dorothy E. Roberts

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Residential segregation and antimiscegenation were interwined means of maintaining an unequal racial order, challenging both sociological theories about immigrant assimilation and upward mobility and legal theories about the significance of interracial marriage for racial equality.

Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli

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Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under …

Why Baby Markets Aren’T Free, Dorothy E. Roberts

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Creating families in the twenty-first century increasingly happens in markets where the buying and selling of reproductive goods and services are facilitated by advanced technologies, the internet, contracts, and state laws and policies. Thus, the title of this international congress—“Baby Markets”—aptly captures a key aspect of modern reproduction. The ability of potential parents to engage in market transactions involving children enhances parents’ autonomy over their family lives. The free market seems to liberate us from the constraints of biology and state control.

This Essay argues, however, that baby markets aren’t free. Three aspects of the way reproductive goods and services …

Democratizing Criminal Law As An Abolitionist Project, Dorothy E. Roberts

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The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

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The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

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Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

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With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Marriage Equality And Marital Supremacy, Serena Mayeri

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No abstract provided.

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

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This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and …

How The Black Lives Matter Movement Can Improve The Justice System, Paul H. Robinson

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This op-ed piece argues that because the criminal justice system's loss of moral credibility contributes to increased criminality and because blacks are disproportionately the victims of crimes, especially violent crimes, the most valuable contribution that the Black Lives Matter movement can make is not to tear down the system’s reputation but rather to propose and support reforms that will build it up, thereby improving its crime-control effectiveness and reducing black victimization.

Obama's Get-Out-Of-Jail-Free Decree, Paul H. Robinson

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While agreeing that sentences for nonviolent drug offenses are too long, this Wall Street Journal op-ed piece argues that the large-scale clemency program planned by President Obama is misguided. It sets a dangerous precedent for using the clemency power beyond its traditional and intended purpose of providing a last-resort check on fairness and justice errors in individual cases, and instead uses the power to set sentencing policy. While many people will like the results of the current program, they will be less than happy when some future president uses it as precedent to promote a sentencing policy of which they …

From Fugitives To Ferguson: Repairing Historical And Structural Defects In Legally Sanctioned Use Of Deadly Force, José F. Anderson

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The lawful use of lethal force to subdue suspected wrongdoers has a long tradition in our nation. There is certainly nothing wrong with securing, incapacitating, or even killing violent persons who pose a serious threat to the lives of innocent individuals. One of the important roles of government is to protect people from harm and keep the peace. Recent events in Ferguson, Missouri, have highlighted the tension between the officers on the beat and citizens on the street. These tensions are not likely to subside unless there are major structural changes in the way the police do their job and …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

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The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

"Law Is Coercion": Revisiting Judicial Power To Provide Equality In Public Education, José F. Anderson

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This article is an attempt to start a conversation about where we find ourselves in the plight to help our most challenged public schools. It is not intended to be a comprehensive solution to the problem, but rather a hard look at how, after decades of many efforts, we are further away from the equal education contemplated by the United States Supreme Court's historic decision in Brown v. Board of Education. This article does not desire to simply cast blame for the failures of our children, but to send a reminder that, as Frederick Douglass would say, we can hardly …

Intersectionality And Title Vii: A Brief (Pre-)History, Serena Mayeri

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Title VII was twenty-five years old when Kimberlé Crenshaw published her path-breaking article introducing “intersectionality” to critical legal scholarship. By the time the Civil Rights Act of 1964 reached its thirtieth birthday, the intersectionality critique had come of age, generating a sophisticated subfield and producing many articles that remain classics in the field of anti-discrimination law and beyond. Employment discrimination law was not the only target of intersectionality critics, but Title VII’s failure to capture and ameliorate the particular experiences of women of color loomed large in this early legal literature. Courts proved especially reluctant to recognize multi-dimensional discrimination against …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

The Importance Of Conversation In Transitional Justice: A Study Of Land Restitution In South Africa, Bernadette Atuahene

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One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land …

We Want What's Ours: Learning From South Africa's Land Restitution Program (Oxford University Press), Bernadette Atuahene

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http://wewantwhatsours.com

Millions of people all over the world have been displaced from their homes and property. Dispossessed individuals and communities often lose more than the physical structures they live in and their material belongings, they are also denied their dignity. These are dignity takings, and land dispossessions occurring in South Africa during colonialism and apartheid are quintessential examples. There have been numerous examples of dignity takings throughout the world, but South Africa stands apart because of its unique remedial efforts. The nation has attempted to move beyond the more common step of providing reparations (compensation for physical losses) to instead …

Converge! Reimagining The Movement To End Gender Violence Symposium: Panel On Intersections Of Gender, Economic, Racial, And Indigenous (In) Justice, Margaret E. Johnson

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JOHNSON: This presentation envisions what a better domestic violence legal system might look like for persons subjected to domestic abuse who have not had their needs met or who have been harmed by the current legal system. The paper reframes the focus of the civil legal system from a paradigm of safety into a paradigm of security, including economic, housing, health, and relationship security. This reframing permits a focus on the domestic violence legal system and its intersecting systems of oppression such as race, gender, class, and ethnicity.

Currently, the domestic violence legal system targets short-term physical safety of the …

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

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This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity …

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

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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 …

The Law And Economics Of Stop-And-Frisk, David S. Abrams

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The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.

Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts

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In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court's equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts' decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”

Scholars who oppose race‐matching …

Lining Up: Ensuring Equal Access To Vote, Gilda R. Daniels

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This booklet ( a joint project of the Advancement Project and the Lawyer's Committee for Civil Rights Under Law) provides an extensive overview of restrictive voting laws, especially concerning minority voters. Daniels begins with a summary of voter obstructions and intimidation in the 2012 election, and then places that within the context of the history of voting and race in America.

Most recently, the Section 5 protections of the Voting Rights Act of 1965 were effectively removed by the Shelby County v. Holder Supreme Court decision. Daniels then explains what this means practically and legally for minority voters and how …

Pauli Murray And The Twentieth-Century Quest For Legal And Social Equality, Serena Mayeri

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No abstract provided.

A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp

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Most legal historians speak of the period following classical legal thought as “progressive legal thought.” That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete “classical” ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the …