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Articles 1 - 30 of 46
Full-Text Articles in Law
A Scapegoat Theory Of Bivens, Katherine Mims Crocker
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
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 …
Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick
Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick
Faculty Publications
Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …
State Constitutionalism In The Age Of Party Polarization, Neal Devins
State Constitutionalism In The Age Of Party Polarization, Neal Devins
Faculty Publications
No abstract provided.
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
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 …
The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman
The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman
Faculty Publications
No abstract provided.
Rights Speech, Timothy Zick
Rights Speech, Timothy Zick
Faculty Publications
Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …
The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord
The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord
Faculty Publications
This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.
The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …
The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas
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 …
Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim
Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim
Faculty Publications
No abstract provided.
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Faculty Publications
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …
Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth
Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth
Faculty Publications
No abstract provided.
Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins
Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins
Faculty Publications
No abstract provided.
Book Review Of Global Responsibility For Human Rights: World Poverty And The Development Of International Law, Michael Ashley Stein
Book Review Of Global Responsibility For Human Rights: World Poverty And The Development Of International Law, Michael Ashley Stein
Faculty Publications
No abstract provided.
Preparing For Disaster: Protecting The Most Vulnerable In Emergencies, Sharona Hoffman
Preparing For Disaster: Protecting The Most Vulnerable In Emergencies, Sharona Hoffman
Faculty Publications
Many federal, state, local and private entities are investing significant resources in disaster readiness initiatives. Often disregarded, however, are the special needs of vulnerable populations during disasters. In the context of emergencies, vulnerable groups may include individuals with disabilities, pregnant women, children, the elderly, prisoners, members of ethnic minorities, people with language barriers, and the impoverished. The fate of the disadvantaged during disasters has received little attention in the legal literature, and this article begins to fill that gap. It examines ethical theories of distributive justice and existing federal and state civil rights and emergency response laws and argues that …
The Jena Six, Mass Incarceration, And The Remoralization Of Civil Rights, Joseph E. Kennedy
The Jena Six, Mass Incarceration, And The Remoralization Of Civil Rights, Joseph E. Kennedy
Faculty Publications
No abstract provided.
Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer
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 …
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Faculty Publications
In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …
Disability And The Social Contract, Anita Silvers, Michael Ashley Stein
Disability And The Social Contract, Anita Silvers, Michael Ashley Stein
Faculty Publications
No abstract provided.
Coming Out For Kids: Recognizing, Respecting, And Representing Lgbtq Youth, Barbara A. Fedders
Coming Out For Kids: Recognizing, Respecting, And Representing Lgbtq Youth, Barbara A. Fedders
Faculty Publications
No abstract provided.
Foreword, Eric L. Muller
Foreword, Eric L. Muller
Faculty Publications
Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary
Under The Empirical Radar: An Initial Expressive Law Analysis Of The Ada, Michael Ashley Stein
Under The Empirical Radar: An Initial Expressive Law Analysis Of The Ada, Michael Ashley Stein
Faculty Publications
No abstract provided.
Bringing In The State: Toward A Constitutional Duty To Protect From Mob Violence, Susan S. Kuo
Bringing In The State: Toward A Constitutional Duty To Protect From Mob Violence, Susan S. Kuo
Faculty Publications
Mob violence can inflict devastating costs. Although typically wrought by private individuals, the incidence of riot as well as extent of riot harm often turn on the adequacy of police preparation and planning. Under the English common law, local governments were responsible for providing riot protection for their denizens. In keeping with the English tradition, early state laws in the United States also provided for communal riot responsibility, and when the states ratified the Fourteenth Amendment, state obligations in the riot context were well-established. Despite the common law underpinnings of the governmental duty to protect citizens from mob violence, however, …
Drug Wars In Black And White, Joseph E. Kennedy
Drug Wars In Black And White, Joseph E. Kennedy
Faculty Publications
No abstract provided.
Night Thoughts: Reflections On The Debate Concerning Same-Sex Marriage, John V. Orth
Night Thoughts: Reflections On The Debate Concerning Same-Sex Marriage, John V. Orth
Faculty Publications
No abstract provided.
Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History, Thomas E. Baker
Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History, Thomas E. Baker
Faculty Publications
Tribute to Judge Procter Hug of the United States Court of Appeals for the 9th Circuit, based on a talk adapted from Thomas E. Baker's At War With the Constitution: A History Lesson from the Chief Justice, 14 BYU J. Pub.L. 69 (1999).
It is but a truism that the powers of the government are greatest when the Nation is at war. All of our wartime Commanders-in-Chief have conducted themselves based on this belief. For its part, the Supreme Court has acquiesced in draconian measures undertaken by the Executive that would not be permitted during peacetime. The lasting problem …
The Future Of Educational Diversity: Old Decrees, New Challenges, John Charles Boger, Elizabeth Jean Bower
The Future Of Educational Diversity: Old Decrees, New Challenges, John Charles Boger, Elizabeth Jean Bower
Faculty Publications
No abstract provided.
The Emerging Law Of Race And Student Assignment Plans, John Charles Boger, Elizabeth Jean Bower
The Emerging Law Of Race And Student Assignment Plans, John Charles Boger, Elizabeth Jean Bower
Faculty Publications
No abstract provided.
Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya
Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Book Review Of Make Haste Slowly: Moderates, Conservatives, And School Desegregation In Houston, Davison M. Douglas
Book Review Of Make Haste Slowly: Moderates, Conservatives, And School Desegregation In Houston, Davison M. Douglas
Faculty Publications
No abstract provided.