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Articles 1 - 30 of 36
Full-Text Articles in Legal History
Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle
Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle
Publications
People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …
A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Desautels-Stein
A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Desautels-Stein
Publications
There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.
Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff
Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff
Publications
Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by suggesting …
The Troubling Alliance Between Feminism And Policing, Aya Gruber
The Troubling Alliance Between Feminism And Policing, Aya Gruber
Publications
No abstract provided.
While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss
While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss
Publications
This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …
Do Abolitionism And Constitutionalism Mix?, Aya Gruber
Do Abolitionism And Constitutionalism Mix?, Aya Gruber
Publications
No abstract provided.
Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer
Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer
Publications
A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.
We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression-one that operates to effectively disfranchise an entire class of people, just as the old form did for African …
Human Rights Racism, Anna Spain Bradley
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 …
Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff
Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff
Publications
On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific …
Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton
Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton
Publications
No abstract provided.
Revoking Rights, Craig J. Konnoth
Revoking Rights, Craig J. Konnoth
Publications
In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …
The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey
The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey
Publications
Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …
Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss
Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss
Publications
This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …
Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen
Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen
Publications
The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.
Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen
Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen
Publications
On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …
Race As A Legal Concept, Justin Desautels-Stein
Race As A Legal Concept, Justin Desautels-Stein
Publications
Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …
A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin
A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin
Publications
Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.
Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …
A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss
A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss
Publications
In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …
Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth
Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth
Publications
Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …
Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss
Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss
Publications
This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …
Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber
Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber
Publications
In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …
A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins
A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins
Publications
No abstract provided.
"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson
"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson
Publications
No abstract provided.
National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein
National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein
Publications
No abstract provided.
Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter
Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter
Publications
No abstract provided.
Book Review, S. James Anaya
Beyond Indian Law: The Rehnquist Court’S Pursuit Of States’ Rights, Color-Blind Justice And Mainstream Values, David H. Getches
Beyond Indian Law: The Rehnquist Court’S Pursuit Of States’ Rights, Color-Blind Justice And Mainstream Values, David H. Getches
Publications
No abstract provided.
Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita K. Buckner Inniss
Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita K. Buckner Inniss
Publications
Since the beginning of the nation, white Americans have suffered from a deep inner uncertainty as to who they really are. One of the ways that has been used to simplify the answer has been to seize upon the presence of black Americans and use them as a marker, a symbol of limits, a metaphor for the "outsider." Many whites could look at the social position of blacks and feel that color formed an easy and reliable gauge for determining to what extent one was or was not American. Perhaps that is why one of the first epithets that many …
Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya
Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya
Publications
No abstract provided.
Foreword: The Challenge Of Rio, David H. Getches