Law Commons^™

Is It Time To Revisit Qualified Immunity?, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The right to sue and defend in the courts of the several states are essential privileges of citizenship. Eight generations ago, this right was unavailable to black people, because descendants of African slaves were never intended to be citizens. Then, and for years to come, local governments failed to protect African Americans from violence and discrimination and were sometimes complicit in those violations.

Qualified immunity was born in 1982 when the Supreme Court decided Harlow v. Fitzgerald. With an outflow of questionable court decisions shielding officers solely because they act under color of state law, it is time for the …

"All (Poor) Lives Matter": How Class-Not-Race Logic Reinscribes Race And Class Privilege, Jonathan Feingold

Faculty Scholarship

In An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention, which highlights the disfavored remedial status of Black women, exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”

This latent racial privilege rests on two doctrinal pillars. First, single-axis tiers of scrutiny, which force claimants and courts to view discrimination in either/or terms (that is, race-based or gender-based or class-based), contravene intersectionality’s core insight that “people live their lives co-constitutively as ‘both/and,’ rather than fragmentarily …

Expansion Of New Law In Southeast May Stave Off Black Land Loss, Thomas W. Mitchell, Sarah Stein, Ann Carpenter

Faculty Scholarship

Landownership and homeownership are significant contributors to the creation of wealth and thus, drivers of intergenerational economic mobility. However, many people who have inherited family land are unable to realize these opportunities because of the legal effect of their particular form of landownership, often called heirs' property. These landowners are more likely to lose their land through what is known as a partition sale—a property sale resulting from a dispute between co-owners, often ignited by an outside party with an investment interest in the land. This Partners Update article explores the repercussions of heirs' property ownership and examines legislative solutions …

An Unbroken Thread: African American Exclusion From Jury Service, Past And Present, Alexis Hoag

Faculty Scholarship

No abstract provided.

Climate Cages: Connecting Migration, The Carceral State, Extinction Rebellion, And The Coronavirus Through Cicero And 21 Savage, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Desnatada: Latina Illumination Of Breastfeeding, Race, And Injustice, Jasmine Gonzales Rose

Faculty Scholarship

In Skimmed: Breastfeeding, Race, and Injustice, Andrea Freeman brilliantly explains how racism results in lower breastfeeding rates by Black mothers,¹ which in turn results in poorer health outcomes--including higher mortality rates--for Black babies.² She provides four primary reasons for this phenomenon: (1) the history and legacy of slavery, (2) the imposition of racist gender stereotypes on Black women, (3) racially-targeted formula promotion by manufacturers and hospitals, and (4) government benefits and employment policies that obstruct poor people's ability to breastfeed. The first two of these reasons are particularly devastating: the legacy of slavery and misogynoiristic³ stereotypes …

What Becomes A Legendary Constitutional Campaign Most? Marking The Nineteenth Amendment At One Hundred, Linda C. Mcclain

Faculty Scholarship

What most becomes a landmark anniversary in the legendary campaign by women (and some men) for woman suffrage that, in 1920, led to Congress’s ratifying the Nineteenth Amendment to the U.S. Constitution? This framing of the question alludes to the famous, decades-long Blackglama advertising campaign, “What becomes a legend most?,” which (beginning in 1968) enlisted the charisma of famous women (and some men) to glamorize mink coats. This Essay also appeals to the dual meanings of legendary -- “of, relating to, or characteristic of legend” and “well-known, or famous” -- and argues that the campaign for woman suffrage is the …

The Limits Of Medical X-Pertise: Gender Markers In A Pandemic, Heron Greenesmith, Andy Izenson

Faculty Scholarship

The world changed drastically in 2020. The pandemic has far reaching consequences, and so too do the current civil rights movements and the struggle for gender justice and liberation. This Article seeks to describe a moment in time, a moment of doubt of how one 's gender and race will predict one 's ability to survive the pandemic-not simply COVID-19, but the pandemic writ-large and all the wrenches it has thrown into the health-care machine. How do those of us standing at the edge of a gender revolution navigate these waters? Will our health be the price we pay for …

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Toward Establishing A Pre-Extinction Definition Of 'Nationwide Injunctions', Portia Pedro

Faculty Scholarship

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There …

When They Hear Us: Race, Algorithms And The Practice Of Criminal Law, Ngozi Okidegbe

Faculty Scholarship

We are in the midst of a fraught debate in criminal justice reform circles about the merits of using algorithms. Proponents claim that these algorithms offer an objective path towards substantially lowering high rates of incarceration and racial and socioeconomic disparities without endangering community safety. On the other hand, racial justice scholars argue that these algorithms threaten to entrench racial inequity within the system because they utilize risk factors that correlate with historic racial inequities, and in so doing, reproduce the same racial status quo, but under the guise of scientific objectivity.

This symposium keynote address discusses the challenge that …

Artificial Financial Intelligence, William Magnuson

Faculty Scholarship

Recent advances in the field of artificial intelligence have revived long-standing debates about what happens when robots become smarter than humans. Will they destroy us? Will they put us all out of work? Will they lead to a world of techno-savvy haves and techno-ignorant have-nots? These debates have found particular resonance in finance, where computers already play a dominant role. High-frequency traders, quant hedge funds, and robo-advisors all represent, to a greater or lesser degree, real-world instantiations of the impact that artificial intelligence is having on the field. This Article will argue that the primary danger of artificial intelligence in …

Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Immigration Challenges Of The Past Decade And Future Reforms, Fatma Marouf

Faculty Scholarship

Over the past decade, immigrants have faced numerous challenges in the United States, including a dramatic increase in deportations, the expansion and privatization of immigration detention, major changes to the asylum system combined with drastic cutbacks in refugee admissions, and a new wave of racism and xenophobia. This Article discusses these challenges and explores possible ways to address them in 2020 and beyond.

Proposition 187 And The Legacy Of Its Law Enforcement Provisions, Huyen Pham

Faculty Scholarship

Passed by a wide margin of California voters in 1994, Prop. 187 is primarily remembered as a law that tried to deny state-funded health care and education to unauthorized immigrants. Far less attention has been paid to Section Four in Prop. 187 that required all law enforcement agencies (LEAs) in California to “fully cooperate” with federal immigration authorities. Specifically, these provisions required LEAs to verify the legal status of any arrestee “suspected” of being in the U.S. unlawfully, notify the arrestee of his/her unlawful status, and report the arrestee to state and federal immigration authorities.

Though never enforced, Section Four …

Valuing Black Lives: A Case For Ending The Death Penalty, Alexis Hoag

Faculty Scholarship

No abstract provided.

The Algorithmic Divide And Equality In The Age Of Artificial Intelligence, Peter K. Yu

Faculty Scholarship

In the age of artificial intelligence, highly sophisticated algorithms have been deployed to provide analysis, detect patterns, optimize solutions, accelerate operations, facilitate self-learning, minimize human errors and biases and foster improvements in technological products and services. Notwithstanding these tremendous benefits, algorithms and intelligent machines do not provide equal benefits to all. Just as the digital divide has separated those with access to the Internet, information technology and digital content from those without, an emerging and ever-widening algorithmic divide now threatens to take away the many political, social, economic, cultural, educational and career opportunities provided by machine learning and artificial intelligence. …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

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 …

Today’S Crusades: A Therapeutic Jurisprudential Critique Of Faith-Based Civil Rights In Health Care, Kathy Cerminara

Faculty Scholarship

No abstract provided.

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 …

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up …

Genetic Race? Dna Ancestry Tests, Racial Identity, And The Law, Trina Jones, Jessica L. Roberts

Faculty Scholarship

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms …

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

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 …