Law Commons^™

Death In The Shadows, Lucille Jewel, Mary Campbell

College of Law Faculty Scholarship

This paper is about the law and visual culture. Its centerpiece is Parson Weems’ Fable (1939), a painting by the American artist Grant Wood (1891-1942) that depicts the apocryphal story of George Washington and the cherry tree. At first glance, Wood’s image appears to celebrate an enduring myth of American virtue, namely Washington’s precocious inability to tell a lie. Studying the picture more closely, however, one finds a pair of black figures, presumably two of the Washingtons’ slaves. Stationed beneath dark storm clouds and harvesting cherries from a second tree, these slaves invoke yet another national myth, that of the …

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

Articles

No abstract provided.

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

A New #Metoo Result: Rejecting Notions Of Romantic Consent With Executives, Michael Z. Green

Faculty Scholarship

With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”

Those suggesting that the #MeToo movement has gone too far believe it will result in unintended consequences where totally benign and even positive engagement between …

Opioids And Converging Interests, Mary Crossley

Articles

Written as part of Seton Hall Law Review’s Symposium on “Race and the Opioid Crisis: History and Lessons,” this Essay considers whether applying the lens of Professor Derrick Bell’s interest convergence theory to the opioid crisis offers some hope of advancing racial justice. After describing Bell’s interest convergence thesis and identifying racial justice interests that African Americans have related to the opioid crisis, I consider whether these interests might converge with white interests to produce real racial progress. Taken at face value, white politicians’ statements of compassion toward opioid users might signal a public health-oriented approach to addiction, representing …

Threats To Medicaid And Health Equity Intersections, Mary Crossley

Articles

2017 was a tumultuous year politically in the United States on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of …

Uncovering Juror Racial Bias, Christian Sundquist

Articles

The presence of bias in the courtroom has the potential to undermine public faith in the adversarial process, distort trial outcomes, and obfuscate the search for justice. In Pena-Rodriguez v. Colorado (2017), the U.S. Supreme Court held for the first time that the Sixth and Fourteenth Amendments required post-verdict judicial inquiry in criminal cases where racial bias clearly served as a “significant motivating factor” in juror decision-making. Courts will nonetheless likely struggle in interpreting what constitutes a "clear statement of racial bias" and whether such bias constituted a "significant motivating factor" in a juror's verdict. This Article will examine how …

Drugs' Other Side Effects, Craig J. Konnoth

Publications

Drugs often induce unintended, adverse physiological reactions in those that take them—what we commonly refer to as “side-effects.” However, drugs can produce other, broader, unintended, even non-physiological harms. For example, some argue that taking Truvada, a drug that prevents HIV transmission, increases promiscuity and decreases condom use. Expensive Hepatitis C treatments threaten to bankrupt state Medicaid programs. BiDil, which purported to treat heart conditions for self-identified African-Americans, has been criticized for reifying racial categories. Although the Food & Drug Administration (“FDA”) has broad discretion under the Food, Drugs, and Cosmetics Act (“FDCA”) to regulate drugs, it generally considers only traditional …

Human Rights Racism, Anna Spain Bradley

Publications

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

How Should Organizations Support Trainees In The Face Of Patient Bias?, Kimani Paul-Emile

Faculty Scholarship

Some patients degrade, belittle, or harass clinicians and students based on their social identity characteristics, such as their race, gender, ethnicity, or religion. Some patients even refuse care. While this kind of behavior is difficult for all health care workers, it presents unique challenges for trainees. This article offers concrete protocols for supporting trainees when such patient encounters occur, including assessment, debriefing with affected staff, convening team meetings, event tracking, data collection, and initiating organizational cultural changes.

Uncompromising Hunger For Justice: Resistance, Sacrifice, And Latcrit Theory, Brenda Williams, Edwin Lindo, Marc-Tizoc González

Articles

In this Article, three law professors report on and theorize a nonviolent direct-action campaign of the kind discussed by Dr. King in his famous Letter from a Birmingham Jail. Using the basic steps of the nonviolent campaign as an organizing framework, they analyze and report on the 18-day hunger strike by the Frisco 5 (a.k.a., Frisco5). This direct action protested the extrajudicial killings of Amilcar Perez-Lopez, Alex Nieto, Luis Góngora-Pat, and Mario Woods by San Francisco Police Department (SFPD) officers and advocated for institutional change to reduce the risk of homicides against persons with similarly racialized minority-group identities. Two weeks …

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Faculty Publications

(Excerpt)

Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.

The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional …

Equality, Equity, And Dignity, Nancy E. Dowd

UF Law Faculty Publications

In this Essay I explore the definition and scope of children’s equality. I argue that equality includes equity and dignity. The meaning of each of these concepts is critical in imagining a deep, rich vision of equality, and in constructing policies to achieve that vision. This definition of equality creates affirmative rights, demands action to resolve structural discrimination that creates and sustains hierarchies among children, and requires affirmative support for children’s developmental equality.

Mens Rea Reform And Iis Discontents, Benjamin Levin

Scholarship@WashULaw

This article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …

Law And Norms In The Market Response To Discrimination In The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Published by De Gruyter May 11, 2019, https://www.degruyter.com/document/doi/10.1515/lehr-2019-0001/html

Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by firms that it does not regulate, but also how antidiscrimination law might nonetheless be …

Diversity Drift, Jonathan Feingold

Faculty Scholarship

Diversity may be under attack in the age of Trump, but higher education in America has its own diversity problem. If mission statements and strategic plans offer any guidance, many of America’s colleges and universities actively value diversity. Yet even as calls for diversity grow, these calls far too often lack a clear and coherent normative anchor. Institutions often seek “diversity” without first having done the work to define, precisely, why they want diversity, or to identify, concretely, what sorts of diversity will get them there.

As a result, universities have become susceptible to diversity drift, whereby good intentions invite …

The Brandeis Thought Experiment: Reflection On The Elimination Of Racial Bias In The Legal System, Patrick C. Brayer

Faculty Works

This essay prompts the reader to engage in a thought experiment and consider their own limits in advancing the cause of; a legal system free from racism and bias, and lawyers are encouraged to use the experience of a young Louis Brandeis as a guide in this self-reflection. Specifically, this essay calls attention to the fact that Louis Brandeis started his legal career, at the same time when, and in the same place where thousands of African Americans were escaping persecution and traveling in search of economic and political freedom, yet he was publicly absent on issues of race. As …

Poverty, Privacy, And Living Out Of Reach [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.

Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold

Faculty Scholarship

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.

In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …

Understanding Racial Inequity In School Discipline Across The Richmond Region, Genevieve Siegel-Hawley, Adai Tefera, David Naff, Ashlee Lester, Jesse Senechal, Rachel Levy, Virginia Palencia, Mitchell Parry, Morgan Debusk-Lane

MERC Publications

This report comes from the MERC Achieving Racial Equity in School Disciplinary Policies and Practices study. Launched in the spring of 2015, the purpose of this mixed- method study was to understand the factors related to disproportionate school discipline outcomes in MERC division schools. The study had two phases. Phase one (quantitative) used primary and secondary data to explore racial disparities in school discipline in the MERC region as well as discipline programs schools use to address them. Phase two (qualitative) explored the implementation of discipline programs in three MERC region schools, as well as educator and student perceptions …

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …