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Full-Text Articles in Law

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker May 2019

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 Nov 2018

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 Jul 2018

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 Apr 2017

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 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 Oct 2016

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 Apr 2015

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 ...


The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas Apr 2013

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 ...


Recovering The Assembly Clause, Timothy Zick Jan 2012

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.


The Law Of Reputation And The Interest Of The Audience, Laura A. Heymann Sep 2011

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 ...


Widening Batson's Net To Ensnare More Than The Unapologetically Bigoted Or Painfully Unimaginative Attorney, Jeffrey Bellin, Junichi P. Semitsu Jul 2011

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 ...


Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong Jan 2010

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 Jul 2009

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

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 Jan 2009

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.


The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong Jan 2009

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

Faculty Publications

No abstract provided.


Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks Jan 2009

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

Faculty Publications

No abstract provided.


Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein Jan 2008

Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.


Disability And The Social Contract, Anita Silvers, Michael Ashley Stein Jan 2007

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

Faculty Publications

No abstract provided.


Playing Cowboys And Indians, B. Glenn George Oct 2006

Playing Cowboys And Indians, B. Glenn George

Faculty Publications

No abstract provided.


Multiracial Identity And Affirmative Action, Nancy Leong Oct 2006

Multiracial Identity And Affirmative Action, Nancy Leong

Faculty Publications

No abstract provided.


Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein Apr 2006

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

Faculty Publications

No abstract provided.


The Right To Counsel In Criminal Cases, A National Crisis, Mary Sue Backus, Paul Marcus Jan 2006

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

Faculty Publications

No abstract provided.


Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone Jan 2006

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 ...


Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese Jan 2005

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.


Beyond Breimhorst: Appropriate Accommodation Of Students With Learning Disabilities On The Sat, Nancy Leong Jan 2005

Beyond Breimhorst: Appropriate Accommodation Of Students With Learning Disabilities On The Sat, Nancy Leong

Faculty Publications

No abstract provided.


Under The Empirical Radar: An Initial Expressive Law Analysis Of The Ada, Michael Ashley Stein Jan 2004

Under The Empirical Radar: An Initial Expressive Law Analysis Of The Ada, Michael Ashley Stein

Faculty Publications

No abstract provided.


Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein Oct 2003

Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas Apr 2003

The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas

Faculty Publications

No abstract provided.


Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein Jan 2003

Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein

Faculty Publications

No abstract provided.


Book Review Of Against Equality Of Opportunity, Michael Ashley Stein Jan 2003

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.


Explaining Grutter V. Bollinger, Neal Devins Jan 2003

Explaining Grutter V. Bollinger, Neal Devins

Faculty Publications

No abstract provided.