Civil Rights and Discrimination Commons^™

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

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 …

The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol

Faculty Articles

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

On Women Professors Who Teach Legal Writing: Addressing Stigma And Women's Health, Amanda L. Stephens, Sean A. Vina

Faculty Articles

Since the late 1980s, legal writing (LW) professors have been disproportionately white women because the LW field has been stigmatized as "women's work. "As a result, these teaching positions typically have been low status and afforded with less pay and job security in comparison to tenure-track doctrinal law professor positions. Compounding--or intersecting--with the stigma of teaching LW are LW professors' social statuses as women and/or other marginalized statuses. These statuses intersect and influence how and what they teach and the legal academy's attitudes toward them.

Although previous scholarship has briefly addressed legal skill classes' stigmatization, no scholarship to date has …

Inviting The People Into People's Court: Embracing Non-Attorney Representation In Eviction Proceedings, Gregory Zlotnick

Faculty Articles

Evictions often hide in plain sight-and so does one of the most effective responses. Studies uniformly confirm that represented tenants avoid evictions, and with it associated downstream effects, at appreciably higher rates than unrepresented tenants. Tenant representation is one of the most cost-effective anti-poverty interventions available in our housing system. Lawyers should support its expansion, even if and when it a non-lawyer serves as that intervenor in eviction court.

This paper argues that the legal profession should embrace and expand existing pathways for training eligible and interested individuals, regardless of whether they are licensed attorneys, to assist tenants facing eviction. …

Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger

Faculty Articles

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …

Respecting The Identity And Dignity Of All Indigenous Americans, Bill Piatt

Faculty Articles

The United States government attempted to eliminate Native Americans through outright physical extermination and later by the eradication of Indian identity through a boarding school system and other "paper genocide" mechanisms. One of those mechanisms is the recognition of some Natives but not the majority, including those who ancestors were enslaved. The assistance provided to recognized tribes by the government is inadequate to compensate for the historical and continuing suffering these people endure. And yet the problem is compounded for those unrecognized Natives whose ancestors were enslaved and whose tribal identity was erased. They are subjected to a double-barreled discrimination. …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

Faculty Articles

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander

Faculty Articles

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Faculty Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

Faculty Articles

All of Texas was once part of Mexico. Texas has never forgotten it. This is the historical basis for much of the Texas Latino population's struggle for equal educational opportunities. This article will discuss those struggles endured by the Latino population in their quest for equal educational opportunity from the time of Texas's entry into the Union in 1845 to present-with greater emphasis on the last half century. In each Section, I will briefly describe the history of discrimination against Mexican- Americans in that segment of education history and the relationship between the developments in that segment of education history …

Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

Faculty Articles

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

Kevin Vallier And Michael Weber: Religious Exemptions, Edward A. Zelinsky

Faculty Articles

No abstract provided.

After Years Of Working With ‘Ritmo’ Detainees, I Know The Inhumane Facility Doesn’T Deserve A Second Chance, Erica B. Schommer

Faculty Articles

No abstract provided.

Qualified Immunity At Trial, Alexander A. Reinert

Faculty Articles

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

The Influence Of Government Defenders On Affirmative Civil Rights Enforcement, Alexander A. Reinert

Faculty Articles

The federal government — in particular the Department of Justice — can be one of the most efficient and powerful vindicators of civil rights, while simultaneously one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to vindicate important rights, attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent the same. No doubt a similar pattern can be observed in certain state governments that have active affirmative …

Erie Step Zero, Alexander A. Reinert

Faculty Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Judges Need To Exercise Their Responsibility To Require That Eligible Defendants Have Lawyers, Robert C. Boruchowitz

Faculty Articles

There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.

There is no question that …

Reinvigorating Commonality: Gender & Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Faculty Articles

The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, …

Using Domestic Law To Move Toward A Recognition Of Universal Legal Capacity For Persons With Disabilities, Leslie Salzman

Faculty Articles

This symposium explores the meaning of personhood as it is or should be applied to persons with disabilities. This panel focuses on the concept of legal capacity-the ability to make decisions about one’s life, to exercise agency, and to have those decisions recognized by third parties. For my part, I would like to discuss how we might use domestic law—specifically the integration mandate of Title II of the Americans with Disabilities Act and substantive due process—to help us move toward a recognition of universal legal capacity regardless of disability and bring meaningful changes to domestic guardianship regimes. While Article 12 …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Faculty Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert

Faculty Articles

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that …

Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson

Faculty Articles

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin

Faculty Articles

The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …