Law Commons^™

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Faculty Publications

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

The Right To Counsel In Criminal Cases: Still A National Crisis?, Mary Sue Backus, Paul Marcus

Faculty Publications

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Restoring Fairness To Campus Sex Tribunals, Cynthia Ward

Faculty Publications

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer

Faculty Publications

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Faculty Publications

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

The Need For A Law Of Church And Market, Nathan B. Oman

Faculty Publications

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas

Faculty Publications

The first Justice John Marshall Harlan’s status as one of the greatest Supreme Court Justices in American history rests largely upon his civil rights jurisprudence. The literature exploring the nuances of Harlan’s civil rights jurisprudence is vast. Far less attention has been paid to the reasons for Harlan’s strong civil rights views. Developing a rich sense of Harlan’s thinking has been difficult because Harlan did not leave behind a large trove of non-judicial writings. There is, however, a remarkable source of Harlan’s thought that has been largely overlooked by scholars: Harlan’s constitutional law lectures at George Washington Law School of …

Subverting Symbolism: The Matthew Shepard And James Byrd, Jr. Hate Crimes Prevention Act And Cooperative Federalism, Kami Chavis Simmons

Faculty Publications

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the "HCPA"). The HCPA significantly expands the federal government's authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion …

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.

Beginning To End Racial Profiling: Definitive Solutions To An Elusive Problem, Kami Chavis Simmons

Faculty Publications

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim's claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities'] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication …

The Law Of Reputation And The Interest Of The Audience, Laura A. Heymann

Faculty Publications

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task reserved to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or …

Widening Batson's Net To Ensnare More Than The Unapologetically Bigoted Or Painfully Unimaginative Attorney, Jeffrey Bellin, Junichi P. Semitsu

Faculty Publications

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge—the unbounded collection of justifications that courts, including the Supreme Court, accept as “race neutral.”

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that …

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

Faculty Publications

No abstract provided.

Book Review Of Unspeakable: The Story Of Junius Wilson, Michael Ashley Stein, Aviam Soifer

Faculty Publications

No abstract provided.

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks

Faculty Publications

No abstract provided.

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Politics Of Policing: Ensuring Stakeholder Collaboration In The Federal Reform Of Local Law Enforcement Agencies, Kami Chavis Simmons

Faculty Publications

Title 42 U.S. C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom …

Disability And The Social Contract, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.

Multiracial Identity And Affirmative Action, Nancy Leong

Faculty Publications

No abstract provided.

Playing Cowboys And Indians, B. Glenn George

Faculty Publications

No abstract provided.

Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone

Faculty Publications

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …