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Rwu Law Alumni Newsletter April 2024, Roger Williams University School Of Law

RWU Law

No abstract provided.

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Post V. Trinity Health-Michigan: Does 42 U.S.C. § 1985(3) Offer Protection From Disability Discrimination?, Joseph D. Burdine

Seattle University Law Review Online

No abstract provided.

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

American Law In The New Global Conflict, Mark Jia

Georgetown Law Faculty Publications and Other Works

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals.

In particular, modern doctrine might provide progressives answers to three questions:

1. Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional?
2. Are legacy admissions to state run institutions …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

"Exceedingly Unpersuasive” - Discrimination, Transgender Students, And School Bathrooms, Mark Dorosin

Journal Publications

This Article is organized chronologically, in an effort to more effectively reflect the nearly identical fact patterns, timelines, and intersecting opinions of these cases. Part I provides the factual background of both cases. Part II summarizes the substantial preliminary litigation in Grimm; Part III examines the district court ruling in Adams; Part IV analyzes the summary judgment ruling in Grimm. Part V covers Adams’ first appellate ruling; Part VI discusses the Fourth Circuit’s ruling in Grimm three weeks later, and Part VII considers the aftermath of that decision. Parts VIII and IX explore the second panel ruling in Adams and …

Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché

Amici Briefs

This amicus brief, submitted to the Supreme Court in Moyle v. United States, argues that Moyle, and the impending circuit split surrounding it, is a symptom of a larger workability problem with the Dobbs v. Jackson Women’s Health Organization framework. Dobbs is already proving, in its brief existence, to be unworkable, and must be overturned. In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current …

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …

Coercive Ideology, Tyler Rose Clemons

Faculty Publications

Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this Article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script …

Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

UF Law Faculty Publications

Woke means “the belief there are systemic injustices in American society and the need to address them.” Ryan Newman, General Counsel to Governor of Florida.

Stopping wokeness is to combat the belief there are systemic injustices in American society which, true to form, does sound a lot like the opposite of being awake, and that is to say, totally asleep. Alex Wagner.

[B]y condemning the word “Woke” the establishment is not only attacking African American language. It also [is] disparaging the whole concept of being “awake” which I believe is one of the essential elements of moral and religious consciousness. …

Symposium On Transformative Gender Law: A Roger Williams Law Review Event 11-3-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Impact Of Us Abortion Policy On Rheumatology Clinical Practice: A Cross-Sectional Survey Of Rheumatologists, Bonnie L. Bermas, Irene Blanco, Rosalind Ramsey-Goldman, Ashira D. Blazer, Megan E.B. Clowse, Cuoghi Edens, Greer Donley, Leslie Pierce, Catherine Wright, Mehret Birru Talabi

Articles

In June of 2022, the US Supreme Court's decision in Dobbs v Jackson Women’s Health overturned Roe v Wade, finding that there was no federal constitutional right to abortion. Subsequently, almost one third of states have near-total abortion bans in effect. Our team distributed a confidential web-based survey to a sample of US-based rheumatologists to assess how the Dobbs decision is affecting the clinical care of reproductive-age females with rheumatic diseases (RMDs), including teratogen prescribing, pregnancy termination referrals, and rheumatologists’ perceived vulnerability to criminalization.

Thurgood Marshall Memorial Lecture 9-13-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

United States Of America V. Donald J. Trump, Defendant, Jack Smith

United States Department of Justice: Publications and Materials

Violations: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States) Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding) Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding) Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights)

The Grand Jury charges that, at all times material to this Indictment, on or about the dates and at the approximate times stated below:

1. The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 …

(E)Racing Speech In School, Francesca I. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

Introduction: The Arc Of Race In Professional And Collegiate Sports Symposium, Kenneth D. Ferguson

Faculty Works

This introduction will highlight the five articles featured in the symposium issue of the UMKC Law Review and will also situate those articles in the Sports Law Symposium titled, The Arc of Race in Professional and Collegiate Sports. The goal of the two-day virtual symposium was to bring together leading legal, social science, and medical science scholars to engage in discourse concerning how race and gender have affected and continue to influence decision making in professional and collegiate sports. The symposium exposed how race, culture, ethnicity, and gender affect a wide range of phenomena in scientific fields such as neuropsychological …

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

The Problem Is The Court, Not The Constitution, Jonathan Feingold

Faculty Scholarship

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

Law School News: Joyce And Bill Cummings Of Cummings Foundation To Deliver Keynote Address At Rwu Commencement 4-20-2023, Jill Rodrigues

Life of the Law School (1993- )

No abstract provided.

Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

Faculty Scholarship

Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so …

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

Faculty Articles

This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Faculty Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Situating Dobbs, Paula A. Monopoli

Faculty Scholarship

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Scholarly Articles

Elie Mystal’s Allow Me to Retort: A Black Guy’s Guide to the Constitution works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, while others have provided an introduction to constitutional law as a field. Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The …

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Public Order Policing: A Proposal For A Charter-Compliant Legislative Response, Jamie Cameron, Robert Diab

Articles & Book Chapters

This article offers a brief response to the Final Report of the Public Order Emergency Commission by two authors who provided expert reports to the Commission. We focus on Commissioner Rouleau’s recommendation that the provinces and the federal government create a “major event management unit” to ensure “integrated command and control” of large events, and that governments clarify the scope of police power to create exclusion zones and to impose other limits on protest and assembly. We argue that nothing short of legislation on point would suffice to address problems of coordination among police agencies and the lack of clarity …