Law Commons^™

Violence Everywhere: How The Current Spectacle Of Black Suffering, Police Violence, And The Violence Of Judicial Interpretation Undermine The Rule Of Law, David B. Owens

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No abstract provided.

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

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In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

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

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In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as …

Hacking Qualified Immunity: Camera Power And Civil Rights Settlements, Mary D. Fan

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Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles.

Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as …

"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World, Mario L. Barnes

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No abstract provided.

Racial Profiling As Collective Definition, Trevor G. Gardner

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Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice.

However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In this article, I review the literature on group distinction to …

Gay Rights, Equal Protection, And The Classification-Framing Quandary, Peter Nicolas

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Commentators and lower courts will speculate for some time on the actual holding and potential sweep of the Supreme Court's decision in Windsor v. United States [699 F.3d 169, 175 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013)], as well as how the Court might have resolved Perry v. Brown [671 F.3d 1052, 1063 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)] on the merits.

Of at least equal and perhaps greater importance, however, is a subtle yet critical unresolved threshold question lurking in the background of these two decisions, …

The Anabaptist Conscience And Religious Exemption To Jury Service, Michael Hatfield

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While the concern over religiously devout Americans who wish to serve on juries is a serious one, a potential juror dismissed from service over his or her religiosity suffers a real but relatively abstract damage. The punishment is being sent home when they want to stay.

This Article examines a different issue with more severe consequences: religiously devout citizens who risk being jailed for refusing to serve on a jury. Rather than asking whether Jesus could serve on a jury, this Article addresses whether we should force Jesus to serve if he said God told him not to. More specifically, …

By Any Other Name?: On Being "Regarded As" Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

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Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used …

Victimized Twice -- The Intersection Of Domestic Violence And The Workplace: Legal Reform Through Curriculum Development, Lea B. Vaughn

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Domestic violence is at least a two-fold problem for American society. On the one hand, it is one of the leading causes of violence at the workplace against women. On the other, it prevents many women from attaining the economic security that would enable them to escape violence. After describing the background of this problem, this paper will canvass current legal remedies that are available to help battered women achieve economic security. This survey leads to the conclusion that the current pastiche of remedies is often ineffective because of their piecemeal approach to the problem, or because current doctrine does …

The Fearful Symmetry Of Gay Rights, Religious Freedom, And Racial Equality, Walter J. Walsh

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A decade has now passed since Julia Cooper Mack authored her most controversial judicial opinion, Gay Rights Coalition of Georgetown University Law Center v. Georgetown University. That opinion provoked two acts of Congress aimed at its reversal, newspaper editorials from coast to coast, and over one hundred scholarly authors debating its wisdom. In this short essay, I shall suggest that this extended hermeneutic debate has yet to touch upon the deepest implications of Judge Mack's Georgetown opinion. While recent scholarship on this story praises Judge Mack's unusual ability to reconcile clashing interest groups, a more accurate account might be …

Statutory Misinterpretations: A Legal Autopsy, Eric Schnapper

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If the Supreme Court is willing to learn from past mistakes, the Court would find it particularly instructive to re-examine the now quite numerous civil rights decisions which have failed to survive congressional scrutiny. The United States Reports are today littered with the corpses of short-lived opinions purporting to interpret federal anti-discrimination statutes; most were dead on arrival in the bound volumes. October Term 1988 was a veritable Pickett's Charge of conservative misinterpretation. Patterson v. McLean Credit Union briefly displaced and destroyed much of section 1981; Public Employees Retirement System v. Betts temporarily overran parts of the Age Discrimination in …

Perpetuation Of Past Discrimination, Eric Schnapper

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Part I of this Article offers several justifications for providing remedies for present harms that are caused by past acts of discrimination. Part II describes the different ways in which past discrimination can cause a present injury, and suggests for each way the appropriate legal standard for deciding when there is a present constitutional violation. Part III discusses the problems likely to arise in administering the suggested standards, and concludes that these problems are not inherently different from those involved in ordinary discrimination cases.

Two Categories Of Discriminatory Intent, Eric Schnapper

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This Article suggests that the Court's current confusion derives in part from its failure to distinguish between two categories of discriminatory intent, which may be termed goal discrimination and means discrimination. Goal discrimination involves the invidious consideration of race in the selection of the objective which a government policy seeks to achieve. Means discrimination occurs when there is an invidious consideration of race in selecting or weighing the method to be used in achieving that objective. Both forms of discrimination fall within the equal protection clause's prohibition against discriminatory government action, but they involve different circumstances and thus must be …

Civil Rights Litigation After Monell, Eric Schnapper

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This Article identifies the most important issues which must be dealt with after Monell v, Department of Social Services, 436 U.S. 658 (1978), and attempts to resolve them. Section I considers what rules and practices are "official acts, policies and customs" subjecting a government to suit under Monell. The second section analyzes the possible defenses available to a city; it concludes that the good faith immunity afforded to executive officials should not be extended to government entities, but that such entities should be afforded a somewhat narrower defense. Section III discusses the scope of injunctive relief available in …

The Realities Of Prisoners' Cases Under 42 U.S.C. § 1983: A Statistical Survey In The Northern District Of Illinois, William S. Bailey

Articles

The purpose of this article is to examine how prisoner section 1983 claims are treated, on a day to day basis, in the United States District Court for the Northern District of Illinois. To this end, all of the available prisoner section 1983 cases filed in the Northern District of Illinois Eastern Division in the years 1971 and 1973 have been reviewed. This material provides the data base for an analysis of the following issues: the veracity of the burden on the courts argument; the variations in the level of consideration given to different categories of prisoner section 1983 claims; …