Law Commons^™

The Expressive Fourth Amendment, Karen Pita Loor

Faculty Scholarship

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of …

Not My Problem? Landlord Liability For Tenant-On-Tenant Harassment, Aric Short

Faculty Scholarship

Tenant-on-tenant harassment because of a victim’s race, gender, or other protected status, is a severe and increasingly widespread problem often targeting vulnerable tenants. The creation of a hostile housing environment violates the federal Fair Housing Act (FHA), and victims may recover from their abusers, whether they are landlords or fellow tenants. But plaintiffs in two recent FHA lawsuits sought recovery from their landlords for something different: their landlords’ failure to intervene in and stop harassment committed by other tenants. These suits raise novel and important questions about the scope of the FHA, but the two courts disagreed about how the …

The Role Of Lawyers In Bridging The Gap Between The Robust Federal Rights To Education And Relatively Low Education Outcomes In Guatemala, Maryam Ahranjani

Faculty Scholarship

Relative to other countries in the world and in Central America, the Guatemalan Constitution and the federal education law include a robust and detailed right to education. However, literacy rates and secondary educational attainment, particularly for Indigenous people and young women living in rural communities, remain low. The COVID-19 pandemic has only exacerbated disparities. Once children return to schools after the pandemic, the gaps will be even larger. Lawyers can play a critical role in making the strong Constitutional right to education more meaningful.

Severe Or Pervasive Should Not Mean Impossible And Unattainable: Why The "Severe Or Pervasive" Standard For A Claim Of Sexual Harassment And Discrimination Should Be Replaced With A Less Stringent And More Current Standard, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …

Eroding Immigration Exceptionalism: Administrative Law In The Supreme Court's Immigration Jurisprudence, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history.

This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core to the …

From Outsider Status To Insider And Outsider Again: Interest Convergence Theory And Normalization Of Lgbt Identity, Angela Onwuachi-Willig, Alexander Nourafshan

Faculty Scholarship

After the Supreme Court’s decision in United States v. Windsor, which declared the federal Defense of Marriage Act (DOMA) unconstitutional,and after the granting of certiorari in Obergell v. Hodges, where the Supreme Court will decide whether the Fourteenth Amendment requires states to provide a marriage license to same-sex couples, national marriage equality seems like a legal inevitability.However, Windsor and Obergell, along with other state-level advances toward marriage equality, are not equally promising for all members of the lesbian and gay community. Although Windsor and the revolution of cases that have led to Obergell hold significant promise for one privileged subset …

Teaching Employment Discrimination, Angela Onwuachi-Willig

Faculty Scholarship

In this Essay, I explore and discuss various methods for effectively teaching civil rights to this "post-racial" generation. Specifically, I examine the following four classroom challenges: (1) this generation's general lack of understanding about the historical context in which many civil rights laws-for purposes of this Essay, Title VII-arose; (2) the general lack of real-life work experience among many law students; (3) a growing decline in the racial and ethnic diversity of law school classes; and (4) the increasing complexities of discrimination in the workplace, including forms of discrimination such as proxy discrimination and demands for covering. 11 I analyze …

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Notsogolden Years Why Hate Crime Legislation Is Failing A Vulnerable Aging Population, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

A State Of Disarray The Knowing And Voluntary Standard For Releasing Claims Under Title Vii Of The Civil Rights Act Of 1964, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Race, Civil Rights, And Immigration Law After September 11, 2001, Susan M. Akram

Faculty Scholarship

This article is part of a symposium on "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy." Although only time will tell, September 11, 2001 promises to be a watershed in thehistory of the United States. Not long after the tragedy, supporters and critics alike saw the federal government as "pushing the envelope" in restricting civil liberties in the name of national security. This article analyzes the nation's response to the horrific loss of life of September 11 and shows how the centralization ofimmigration power in the hands of the federal government, may exacerbate the civil rights …

Rethinking Novotny In Light Of United Brotherhood Of Carpenters & Joiners V. Scott: The Scope And Constitutionally Permissible Periphery Of Section 1985 (3), Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski

Faculty Scholarship

IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers' intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that …