Law Commons^™

Unshielded: How The Police Can Become Touchable, Brandon Hasbrouck

Scholarly Articles

This Review proceeds in three Parts. First, Part I examines Shielded’s text, highlighting Schwartz’s analysis of the problem of unaccountable police, the many barriers to holding police accountable, and her proposed solutions. Part II then critically examines Schwartz’s work, examining pieces of the problem she left undiscussed and the relative shortcomings of her discussion of possible solutions. Finally, Part III takes an abolitionist approach, delving into potential nonreformist reforms and the solution of full abolition, as well as examining the most significant objection to abolitionist approaches: the problem of violence.

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Scholarly Articles

Elie Mystal’s Allow Me to Retort: A Black Guy’s Guide to the Constitution works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, while others have provided an introduction to constitutional law as a field. Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The …

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Antiracist Constitution, Brandon Hasbrouck

Scholarly Articles

Our Constitution, as it is and as it has been interpreted by our courts, serves white supremacy. The twin projects of abolition and reconstruction remain incomplete, derailed first by openly hostile institutions, then by the subtler lie that a colorblind Constitution would bring about the end of racism. Yet, in its debut in Supreme Court jurisprudence, colorblind constitutionalism promised that facially discriminatory laws were unnecessary for the perpetuation of white supremacy. That promise has been fulfilled across nearly every field of law as modern white supremacists adopt insidious, facially neutral laws to ensure the oppression of Black people and other …

The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers

Scholarly Articles

In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.

What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that …

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

The New Jim And Jane Crow Intersect: Challenges To Defending The Parental Rights Of Mothers During Incarceration, Carla Laroche

Scholarly Articles

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their …

Movement Constitutionalism, Brandon Hasbrouck

Scholarly Articles

The white supremacy at the heart of the American criminal legal system works to control Black, Brown, and poor people through mass incarceration. Poverty and incarceration act in a vicious circle, with reactionaries mounting a desperate defense against any attempt to mitigate economic exploitation or carceral violence. Ending the cycle will require replacing this inequitable system with the life- and liberty-affirming institutions of abolition democracy. The path to abolition democracy is arduous, but abolitionists can press for change through what I coin “movement constitutionalism.” Movement constitutionalism is the process by which grassroots abolitionist movements shift—through demands and in solidarity with …

Reimagining Public Safety, Brandon Hasbrouck

Scholarly Articles

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Black Women And Voter Suppression, Carla Laroche

Scholarly Articles

Black women who are eligible to vote do so at consistently high rates during elections in the United States. For thousands of Black women, however, racism, sexism, and criminal convictions intersect to require them to navigate a maze of laws and policies that keep them from voting. With the alarming rate of convictions and incarceration of Black women, criminal law intersects with civil rights to bar their involvement in the electoral process. This voting ban is known as felony disenfranchisement, but it amounts to voter suppression.

By reconceptualizing voter suppression based on criminal convictions through the experiences of Black women’s …

The Soft-Shoe And Shuffle Of Law School Hiring Committee Practices, Carliss N. Chatman, Najarian R. Peters

Scholarly Articles

It is in the spirit of Ida B. Wells that we seek to turn the light upon the systemic racism of hiring practices. We believe these practices are indicators of the systemic failures on campuses and in workplaces that prevent them from being antiracist. We seek to use this Essay as a “tool for exposing, analyzing, and challenging the majoritarian stories of racial privilege.”

Our specifc intention is to recognize the largely performative nature of claiming to be committed to an idea while substantively and concretely ensuring the opposite. This Essay is written with specific experiences, patterns, and practices in …

Profiting From Our Pain: Privileged Access To Social Impact Investing, Cary Martin Shelby

Scholarly Articles

Social impacting investing has become the latest trend to permeate the financial markets. With massive anticipated funding gaps for sustainable development goals, and a millennial-driven thirst for doing good while doing well, this trend is likely to continue in the coming decades. This burgeoning industry is poised to experience yet an additional boost, since it provides an alternative mechanism for private actors to “profit from our pain,” particularly in the wake of the COVID-19 pandemic and the Black Lives Matter movement.

As to be expected, the law has not sufficiently adapted to this new wave of innovation. Scholars have thus …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

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 …

Sentencing Inequality Versus Sentencing Injustice, Melanie D. Wilson

Scholarly Articles

Women lag behind men in pay for equal work and in positions of prestigious employment, such as chief executive officers at Fortune 500 companies and presidents of colleges and universities. Women also suffer conscious and subconscious negative bias from both men and women in positions to evaluate an applicant's capabilities and potential, making it less likely that an employer or mentor will choose a woman instead of a man. In contrast to these and many other contexts, our federal criminal justice system regularly favors women over men. Empirical studies show that this lenient treatment begins with prosecutors and law enforcement …

Taking Away An Employer's Free Pass: Making The Case For A More Sophisticated Sex-Plus Analysis In Employment Discrimination Cases, Heather M. Kolinsky

Scholarly Articles

In this article the author advocates for a broader interpretation of sex-plus theory to encompass the concept of mother as a gender identified category.

Gender, Discourse, And Customary Law In Africa, Johanna E. Bond

Scholarly Articles

Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities. The international human rights community, however, has not always viewed women as committed, …

Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention To Develop, Protect And Support A Breastfeeding Culture In The United States, Heather M. Kolinsky

Scholarly Articles

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have …

Matters Of Conscience: Lessons For Same-Sex Marriage From The Healthcase Context, Robin Fretwell Wilson

Scholarly Articles

None available.

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Scholarly Articles

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts that choose to continue to apply …

William Thaddeus Coleman, Jr.: Breaking The Color Barrier At The U.S. Supreme Court, Todd C. Peppers

Scholarly Articles

The purpose of this essay is twofold: It will endeavor to succinctly summarize the important events of Coleman’s life and professional career, while making the argument that these achievements were as groundbreaking in the legal community as Robinson’s were to baseball. Admittedly, looking to our national pastime is hardly an original literary maneuver; The myriad similarities and links between baseball and the law have offered rich material for many legal writers.2 Moreover, this article does not wish to diminish Coleman’s accomplishments by comparing them to a mere “game.” By drawing upon the sixtieth anniversary of Robinson’s debut, my hope is …

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher B. Seaman, Richard Valelly

Scholarly Articles

Section 5 of the Voting Rights Act of 1965 requires certain jurisdictions with a history of racial discrimination to obtain “preclearance” of proposed electoral changes from the United States Department of Justice or a three-judge panel in the United States District Court for the District of Columbia. This provision, which is set to expire in August 2007, has successfully reduced racial and ethnic discrimination in voting.

The United States Supreme Court determined in a 5-4 decision, Reno v. Bossier Parish School Board, 528 U.S. 230 (2000), that Section 5's prohibition on the enforcement of electoral changes which have a discriminatory …

Brown Ii'S "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid- Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman

Scholarly Articles

In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …

A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla

Scholarly Articles

Not available.

Rights Of Embryo And Foetus In Private Law, Timothy Stoltzfus Jost

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This article summarizes the rights of the embryo and fetus under American law. It was presented as a country report at the World Congress on Comparative Law, and is written primarily for a non U.S. audience. It examines, for example, the legal position of the embryo and fetus with respect to their parents, issues in research involving embryos and fetuses, remedies for torts or crimes against an embryo or fetus, and issues involving stem cell research.

The Black Lawyer In Virginia: Reflections Upon A Journey, 1938–1988, Veryl Victoria Miles, Gerald Bruce Lee, G. Nelson Smith Iii

Scholarly Articles

No abstract provided.