Law Commons^™

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …

Missouri*@!!?*@! - Too Slow, Mae Quinn

Journal Articles

When asked to share my thoughts at this symposium about contemporary human rights issues in domestic criminal law—and how they manifest in St. Louis, Missouri in particular—I could not help but think of these words. Nina Simone, the brilliant vocal artist and civil rights activist, wrote these lyrics over fifty years ago and then bravely and controversially sang them for a mostly-white audience at New York City’s Carnegie Hall following the 1963 shooting death of Medgar Evers.2 Evers was a military veteran who turned civil rights activist and organizer for the National Association for the Advancement of Colored People (“NAACP”) …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Journal Articles

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Journal Articles

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud, Athena D. Mutua, Francisco Valdes

Journal Articles

This article marks the twentieth anniversary of Latina and Latino Critical Legal Theory or the LatCrit organization, an association of diverse scholars committed to the production of knowledge from the perspective of Outsider or OutCrit jurisprudence. The article first reflects on the historical development of LatCrit’s substantive, methodological, and institutional commitments and practices. It argues that these traditions were shaped not only by its members’ goals and commitments but also by the politics of backlash present at its birth in the form of the “cultural wars,” and which have since morphed into perpetual “crises” grounded in neoliberal policies. With this …

Just, Smart: Civil Rights Protections And Market-Sensitive Vacant Property Strategies, James J. Kelly Jr.

Journal Articles

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, …

Disparate Impact, School Closures, And Parental Choice, Nicole Stelle Garnett

Journal Articles

We live in an era of parental choice. Today, forty-two states and the District of Columbia authorize charter schools, and twenty states and the District of Columbia permit students to use public funds to attend a private school. During the 2012-2013 school year, nearly 2 million children attended charter schools, and nearly 250,000 children received publicly funded scholarship to attend a private school. The expanding menu of publicly funded educational options is one (but by no means the only) factor contributing to the current, intensely controversial, waves of urban public school closures. In school-closure debates, proponents of traditional public schools …

Institutional Preconditions For Policy Success, Blake Hudson

Journal Articles

Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional …

The Civil Rights Legacy Of Fr. Theodore M. Hesburgh, C.S.C., Jennifer Mason Mcaward

Journal Articles

This Speech will discuss Fr. Hesburgh's advocacy on these core civil rights issues-education, employment, housing, and voting rights-and how his work changed the face of this country. The story of Fr. Hesburgh's civil rights advocacy is a key to understanding how he emerged-in the words of Vice President Biden-as "one of the most powerful unelected officials this nation has ever seen."

Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward

Journal Articles

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation. This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Journal Articles

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Visits To A Small Planet: Rights Talk In Some Science Fiction Film And Television Series From The 1950s To The 1990s, Christine Corcos

Journal Articles

No abstract provided.

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 …

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor C. Romero

Journal Articles

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …

Postsecondary School Education Benefits For Undocumented Immigrants: Promises And Pitfalls, Victor C. Romero

Journal Articles

Should longtime undocumented immigrants have the same opportunity as lawful permanent residents and U.S. citizens to attend state colleges and universities? There are two typical justifications for denying them such opportunities. First, treating undocumented immigrants as in-state residents discriminates against U.S. citizen nonresidents of the state. Second, and more broadly, undocumented immigration should be discouraged as a policy matter, and therefore allowing undocumented immigrant children equal opportunities as legal residents condones and perhaps encourages "illegal" immigration. This essay responds to these two concerns by surveying state and federal solutions to this issue.

Supervisory Liability In Section 1983 Cases, Kit Kinports

Journal Articles

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder

Journal Articles

American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.

The Americans With Disabilities Act: Analysis And Implications Of A Second-Generation Civil Rights Statute, Robert L. Burgdorf Jr.

Journal Articles

Martin Luther King, Jr. once wrote that our nation's civil rights laws were a "sparse and insufficient collection of statutes ... barely a naked framework."' On their faces, many federal civil rights statutes constitute little more than broad directives that "Thou shalt not discriminate." Broadly worded statements outlawing discrimination were the optimal approach to statutory draftsmanship in light of the controversial nature of the civil rights laws passed in the 1960s and 1970s. The drafters of these statutes needed to craft language that would be palatable to a majority of the members of Congress while still having a meaningful impact …

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Civil Rights And Legal Order: The Work Of A. Leon Higginbotham, Jr., Donald P. Kommers, Eugenia S. Schwartz

Journal Articles

On October 11-12, 1978, Judge A. Leon Higginbotham, Jr.' delivered the Notre Dame Law School's Seventh Annual Civil Rights Lecture under the general title, "From Thomas Jefferson to Bakke: Race and the American Legal Process." It seems to us appropriate, therefore, on the occasion of the Higginbotham lecture, to consider his work as both historian and judge. Specifically, this article will serve the threefold purpose of (1) reviewing Matter of Color, (2) illustrating the author's use of history in two judicial opinions dealing with the rights of black Americans, and (3) reflecting upon the implications of Higginbotham's work in legal …

Civil Rights And Civil Liberties, Douglass Cassel

Journal Articles

More than most lawsuits, school desegregation cases touch basic economic interests and deep-seated psychic sensitivities of entire communities. In this context, legal notions of the "intent" of governmental bodies and the "effect" of their actions on massive, intricate social processes seem eerily abstract. Though limited and necessarily artificial, these legal concepts are nonetheless the jurisprudential links by which courts must legitimize their efforts to define "rights" worthy of recognition in desegregating schools in large urban areas.

This article focuses primarily on this term's decisions of the United States Court of Appeals for the Seventh Circuit involving desegregation of the Milwaukee …

Federal Public-Accommodations Law: A Dissent, Charles E. Rice

Journal Articles

Discrimination in public accommodations presents the most appealing case for compulsory civil-rights legislation. In practical terms, the Civil Rights Act of 1964 has eliminated much of the existing segregation in public accommodations, and, with continued enforcement, the job should be soon completed even in the most hostile areas of the South. The public-accommodations problem, therefore, is no longer a live issue. It is useful, however, to touch upon it, for those who would restrain federal power are often challenged by the taunt, "What would you do about public accommodations? Would you leave it up to the states? How would you …

A Supplementary State Civil Rights Act, Robert E. Rodes

Journal Articles

Under the following statute, civil rights groups, with the approval of the state civil rights commission, may enter into agreements with employers, labor organizations, school authorities, or other public or private agencies, for a direct attack on de facto segregation through a deliberate mixing of races in a desired proportion. Professor Rodes characterizes his draft as "a suggestion for controlled concessions to the principle of direct mixing of the races" in such a manner as to be "philosophically consistent with an ultimate commitment to a society in which racial considerations play no part."

Sit-Ins: Proceed With Caution, Charles E. Rice

Journal Articles

In the current racial contentions, the sit-in demonstration has proved to be an effective and disturbing weapon against segregation by privately-owned business establishments. It is effective because the imposition of economic loss, through monopolizing the seats in a restaurant to the exclusion of potential customers, can break down a proprietor's pattern of segregation more relentlessly than persuasion. It is disturbing because the sit-in poses a direct challenge to accustomed understanding of private property rights.

The Legality Of De Facto Segregation, Charles E. Rice

Journal Articles

There are three basic fields with which a discussion of racial segregation must deal: education, employment and housing. Opinions will vary as to which, if any, is paramount, but none will deny that they are interrelated. In all three areas, the engines of legal proscription have been brought to bear to eliminate affirmative, legally-sanctioned segregation. But there remains the stubborn fact that the removal of legal discrimination has not been attended by either a resultant improvement in the living conditions of minority groups or a substantial integration of the races. The lack of causal connection between the elimination of legal …