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Fighting America’S Best-Selling Product: An Analysis Of And Solution To The Opioid Crisis, Ashley Duckworth

Washington and Lee Journal of Civil Rights and Social Justice

Deaths from drug overdoses have doubled over the last ten years and are now the leading cause of accidental death in the United States. Although some overdoses may have involved more than one drug, prescription and/or illicit opioids were involved in many of these drug overdose fatalities. The Food and Drug Administration (FDA), Center for Disease Control and Prevention (CDC), and Congress have enacted a string of regulations, statutes, and programs since the early 1990s, but nothing has seriously improved the opioid epidemic as it stands. If anything, the use of opioids has persisted. Many people want pharmaceutical companies to …

Flip It And Reverse It: Examining Reverse Gender Discrimination Claims Brought Under Title Ix, Courtney Joy Mcmullan

Washington and Lee Law Review

This Note begins in Part II by discussing the prevalence of campus sexual assault and the ways in which Title IX is used to address it on university campuses. Part III examines reverse Title IX claims by accused students, including the various causes of action and the pleading standards required. Part III also surveys the success of reverse Title IX claims using public pressure on universities to address sexual assault to support their allegations of gender discrimination. Part IV then evaluates the way summary judgment rules and burden-shifting frameworks affect the likelihood of success for reverse Title IX claims. Finally, …

Race Decriminalization And Criminal Legal System Reform, Michael Pinard

Faculty Scholarship

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system. …

Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Scholarly Articles

Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence. …

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

Foreword, Honorable Nathaniel R. Jones

Freedom Center Journal

The articles in this issue of The Freedom Center Journal are timely challenges to the persistent efforts to undermine the American values enshrined in the Preamble of the Constitution and the body of the Constitution itself with its three Civil War Amendments.

The student editors of this volume intended the selected contributions to offer readers a nuanced view of our nation’s current identity crisis. The collection is offered in the hope that it will encourage further thinking and discussion about what it means to be part of the American experiment with democratic self-governance in an age of resurgent white supremacy.

A Candid Discussion About Social Justice: Iris Roley, The Black United Front, And The History Of Cincinnati’S Collaborative Agreement, Ashton Hood

Freedom Center Journal

In early April of 2001 I was growing up in the community of Glendale, a northern suburb of Cincinnati, Ohio. I vividly remember the media coverage of the civil unrest occurring downtown in response to the killing of Timothy Thomas.1 The following interview with Iris Roley, member of the Cincinnati Black United Front, attempts to shed light on the origins of the rage felt in the city during that time period. Proactive steps have been taken since Cincinnati was placed in a national spotlight for its embarrassing race relations. Much work still needs to be done to ensure equity, but …

The System Is Working The Way It Is Supposed To: The Limits Of Criminal Justice Reform, Paul Butler

Freedom Center Journal

Ferguson has come to symbolize a widespread sense that there is a crisis in American criminal justice. This Article describes various articulations of what the problems are and poses the question of whether law is capable of fixing these problems. I consider the question theoretically by looking at claims that critical race theorists have made about law and race. Using Supreme Court cases as examples, I demonstrate how some of the “problems” described in the U.S. Justice Department’s Ferguson report, like police violence and widespread arrests of African-Americans for petty offenses, are not only legal, but integral features of policing …

Justice-Free Zones: U.S. Immigration Detention Under The Trump Administration, Eunice Hyunhye Cho, Tara Tidwell Cullen, Clara Long

United States Department of Homeland Security

In the last three years, the Trump administration has grown the immigration detention system in the United States to an unprecedented size, at times holding more than 56,000 people per day. Since 2017, Immigration and Customs Enforcement (ICE) has anchored this growth in places where immigrants are most likely to be isolated from legal counsel, remain in detention without real opportunity for release, and are more likely to lose their cases. These new detention centers also exhibit patterns of mistreatment and abuse, including medical and mental health care neglect, that have been present since the inception of ICE’s detention system …

Civil Rights In Living Color, Vinay Harpalani

Faculty Scholarship

This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American history. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Census, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based on skin color—as differentiated from …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

Robo-Bureaucrat And The Administrative Separation Of Powers, Matthew Seipel

Cardozo Law Review de•novo

This Essay argues that the administrative state's use of artificial intelligence (AI) creates concentrated, unchecked power at the agency leadership level. The Essay draws from Professor Jon Michaels' theory of the administrative separation of powers, and it describes how AI in government disrupts this separation. To alleviate this concern, the Essay puts forward one modest proposal: Congress should amend federal public sector labor law to require collective bargaining over an agency’s decision to use AI.

Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson

Faculty Scholarship

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …

On Beauty And Policing, I. India Thusi

Faculty Scholarship

ABSTRACT-"To protect and serve" is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers' perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and …

Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon

Fordham Law Review

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

The Blues And The Rule Of Law: Musical Expressions Of The Failure Of Justice, David Pimentel

Articles

No abstract provided.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

The Right To Be And Become: Black Home-Educators As Child Privacy Protectors, Najarian R. Peters

Michigan Journal of Race and Law

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or …

Into The Weeds: Modern Discrimination Law, Sandra F. Sperino

Faculty Publications

Modern discrimination law is the law of minutiae. Judicial energy is not primarily focused on large questions about why workplace inequality exists or how to prevent it. It is not even focused on whether the plaintiff in a particular case was treated differently because of a protected trait. Instead, judicial energy centers on interpreting and applying an ever-growing phalanx of complicated court-created ancillary doctrines.

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and …

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Law Faculty Research Publications

No abstract provided.

The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown

UF Law Faculty Publications

Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule …

Discriminatory Dualism, Sarah L. Swan

Georgia Law Review

This Article identifies and theorizes a significant but
previously overlooked feature of structural
discrimination: it frequently develops into two seemingly
opposing, yet in fact mutually supportive practices. This
“discriminatory dualism” occurs in multiple contexts,
including policing, housing, and employment. In
policing, communities of color experience overpolicing
(i.e., the aggressive overenforcement of petty crime) at the
same time as they experience underpolicing (i.e., the
persistent failure to address violent crime). In housing,
redlining (i.e., the denial of credit to aspiring
homeowners based on race) combines with reverse
redlining (i.e., the over-offering of credit on exploitative
terms) to suppress minority homeownership. And …

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

O Brother Where Art Thou? The Struggles Of African American Men In The Global Economy Of The Information Age, Kenneth G. Dau-Schmidt

Indiana Journal of Law and Social Equality

As early as the late 1980’s, William Wilson argued that widespread economic transitions had altered the socioeconomic structure of American inner cities to the detriment of African Americans. Wilson identified declines in manufacturing work and its replacement with poorly compensated service sector work as driving racial segregation and leaving African Americans jobless, poor and alienated from American society. These transitions were particularly problematic for African American men since manufacturing work was their primary gateway to middle-class employment while African American women had already focused more on service work.

Since the initial exposition of Wilson’s theory of deindustrialization, Wilson’s framework of …

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation.

African-American …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

Foreword, Syndie G. E. Molina

Journal of Race, Gender, and Ethnicity

No abstract provided.