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Full-Text Articles in Law

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher Oct 2022

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher

Articles

In the form of a cute, cuddly, and innocent waabooz, Nanaboozhoo munched on the chewy, bitter Tłohdá’ákáłiitsoh he found everywhere in this⁣ land, far from his own. Although, it was a bit dry. In this land, Dinétah,⁣ Nanaboozhoo thought he could see forever. There were few trees. The sky⁣ was bright blue and limitless. The air smelled like a kind of dirt he had never⁣ experienced. And, boy howdy, was it dry. He couldn’t smell water for the⁣ life of him. But there was water, to be sure, or else there wouldn’t be this⁣ bush.


Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers Oct 2022

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

Articles

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …


Uneasy Lies The Head: Tracking A Loophole In Racial Discrimination Law, Kate E. Britt Jan 2022

Uneasy Lies The Head: Tracking A Loophole In Racial Discrimination Law, Kate E. Britt

Law Librarian Scholarship

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Historically, courts have ruled in favor of workplace grooming policies that prohibit most natural Black hairstyles as not unlawfully discriminatory within the scope of Title VII. This article discusses hair discrimination in workplaces and how federal, state, and local legislators are attempting to close this loophole.


Mary Lou Graves, Nolen Breedlove, And The Nineteenth Amendment, Ellen D. Katz Jan 2022

Mary Lou Graves, Nolen Breedlove, And The Nineteenth Amendment, Ellen D. Katz

Articles

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that—contrary to the general understanding in the scholarly literature—the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote …


The Myth Of The Great Writ, Leah M. Litman Dec 2021

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …


Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman Jul 2021

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Articles

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.


Reducing Prejudice Through Law: Evidence From Experimental Psychology, Roseanna Sommers, Sara Burke Jun 2021

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Roseanna Sommers, Sara Burke

Law & Economics Working Papers

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is illegal cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (vs. illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely to …


Slamming The Courthouse Door: 25 Years Of Evidence For Repealing The Prison Litigation Reform Act, Andrea Fenster, Margo Schlanger Apr 2021

Slamming The Courthouse Door: 25 Years Of Evidence For Repealing The Prison Litigation Reform Act, Andrea Fenster, Margo Schlanger

Other Publications

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act. The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits. For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find …


Towards An Urban Disability Agenda, Samuel R. Bagenstos Nov 2020

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even …


Eight Months Later, Ellen D. Katz Oct 2020

Eight Months Later, Ellen D. Katz

Reviews

Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process.


On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah Oct 2020

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.


The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler Oct 2020

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

Articles

Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.


Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos Sep 2020

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …


Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger Aug 2020

Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger

Articles

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states, Massachusetts and …


Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman Jul 2020

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …


Disability And Reproductive Justice, Samuel Bagenstos Jun 2020

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …


Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos May 2020

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the …


Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos Apr 2020

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Law & Economics Working Papers

Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have …


Disability Rights And The Discourse Of Justice., Samuel Bagenstos Apr 2020

Disability Rights And The Discourse Of Justice., Samuel Bagenstos

Articles

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that the …


Olmstead V. L.C.: The Supreme Court Case, Samuel R. Bagenstos, Irv Gornstein, Michael Gottesman, Jennifer Mathis Feb 2020

Olmstead V. L.C.: The Supreme Court Case, Samuel R. Bagenstos, Irv Gornstein, Michael Gottesman, Jennifer Mathis

Articles

You have an incredible luxury here at Georgetown Law. You have faculty who are engaged in the world like two of my colleagues on this panel. To my immediate left is Professor Michael Gottesman (Georgetown University Law Center) who argued the case on behalf of Lois and Elaine, and to my next far left, Professor Irv Gornstein (Georgetown University Law Center) who argued the case on behalf of the United States. Between them is Jennifer Mathis (The Bazelon Center for Mental Health Law) who has spent, I think, most of her career at the Bazelon Center litigating, and organizing, and …


Government Misconduct And Convicting The Innocent: The Role Of Prosecutors, Police And Other Law Enforcement, Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, Klara Huber Stephens Jan 2020

Government Misconduct And Convicting The Innocent: The Role Of Prosecutors, Police And Other Law Enforcement, Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, Klara Huber Stephens

Other Publications

This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989, 2,663 as of this writing. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019.

In general, we classify a case as an “exoneration” if a person who was convicted of a crime is officially and completely cleared based on new evidence of innocence.

The Report is …


New Textualism And The Thirteenth Amendment, Leah Litman Sep 2019

New Textualism And The Thirteenth Amendment, Leah Litman

Articles

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …


Dignity And Civility, Reconsidered, Leah Litman May 2019

Dignity And Civility, Reconsidered, Leah Litman

Articles

People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …


Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker Mar 2019

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …


Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll Jan 2019

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …


The Civil Rights Litigation Clearinghouse: Origins And Goals, Margo Schlanger Nov 2018

The Civil Rights Litigation Clearinghouse: Origins And Goals, Margo Schlanger

Articles

The Civil Rights Litigation Clearinghouse (http://clearinghouse.net) solves a significant information deficit related to civil rights litigation by posting information about thousands of ongoing and closed large-scale civil rights cases. Documents are OCR’d and searchable; cases are searchable by metadata tags as well as full-text searching. Each case has a litigation summary by a law student. We live in a civil rights era—a time when people are using the courts, among other strategies, to fight for civil rights. The Clearinghouse posts the records of those fights, the stories of civil rights cases—across topics, across regions, across organizations—and makes them searchable, usable, …


Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle Nov 2018

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …


Implicit Bias's Failure, Samuel Bagenstos Jun 2018

Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:


Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz Apr 2018

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.


Defense Counsel And Public Defence, Eve Brensike Primus Nov 2017

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …