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Articles 1 - 7 of 7
Full-Text Articles in Law
Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig
Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig
Faculty Scholarship
In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"5 In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.6 After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" …
The Problem Is The Court, Not The Constitution, Jonathan Feingold
The Problem Is The Court, Not The Constitution, Jonathan Feingold
Faculty Scholarship
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
“Do Not Ever Refer To My Lord Jesus Christ With Pronouns”: Considering Controversies Over Religiously Motivated Discrimination On The Basis Of Gender Identity, Linda C. Mcclain
“Do Not Ever Refer To My Lord Jesus Christ With Pronouns”: Considering Controversies Over Religiously Motivated Discrimination On The Basis Of Gender Identity, Linda C. Mcclain
Faculty Scholarship
In the by-now familiar framing “religious freedom versus LGBT+ rights,” perhaps the most visible conflicts today in the United States, and elsewhere, concern the “T”—transgender or gender identity rights. This issue of the Journal of Law and Religion includes a conversation in print between Patrick Parkinson, Laura Portuondo and Claudia Haupt, and Shannon Gilreath on this timely topic, and their contrasting perspectives mirror dimensions of the larger public controversies. Although tweets like those quoted above (by unsuccessful Republican congressional candidate Lavern Spicer) asserting that neither the Bible nor Jesus had pronouns sparked both factual corrections and comical retorts, 3 the …
Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton
Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton
Faculty Scholarship
The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …
Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold
Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold
Faculty Scholarship
“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.
Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …
Un-Erasing Race In A Medical-Legal Partnership: Antiracist Health Justice Advocacy By Design, Danielle Pelfrey Duryea, Peggy Maisel, Kelley Saia
Un-Erasing Race In A Medical-Legal Partnership: Antiracist Health Justice Advocacy By Design, Danielle Pelfrey Duryea, Peggy Maisel, Kelley Saia
Faculty Scholarship
This Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has "reasonable cause to believe that a child is suffering physical or emotional injury" as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As …
Affirmative Action After Sffa, Jonathan Feingold
Affirmative Action After Sffa, Jonathan Feingold
Faculty Scholarship
In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.