Law Commons^™

James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter

Articles in Law Reviews & Other Academic Journals

In his work, Freedom National: The Destruction of Slavery in the United States, 1861-1865, James Oakes provides an overview of several Civil War era legal instruments regarding enslavement in the United States. One of the statutes he examines is An Act to Confiscate Property Used for Insurrectionary Purposes, passed by the Thirty Seventh Congress in August, 1861. This law, popularly known as the First Confiscation Act (FCA), is one of the several "Confiscation Acts" that contributed to the weakening of legal enslavement during the War. Fortunately, scholars have contextualized and deemphasized President Lincoln's role as the "Great Emancipator" by examining …

Reconstruction's Lessons, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

In the current moment in the legal struggle for racial justice in the United States, the Nation appears at risk of repeating its history. The country stands at a time of some hope but more cause for pessimism. The current United States Supreme Court has exhibited hostility towards key legal priorities of the racial justice movement, and all indications point to this trend continuing or getting even worse. Leading commentators on race issues have suggested that the United States is headed back to the post Reconstruction era, sometimes referred to as “Redemption” in reference to southern states’ reassertion of white …

Redressing The Past To Repair The Present: The Role Of Property Law In Creating And Exacerbating Racial Disparities In Wealth And Poverty In Nova Scotia, Melissa Marsman

LLM Theses

For over 200 years African Nova Scotians have been fighting to confirm legal title to the land on which their ancestors were settled. In 2020, the Nova Scotia Supreme Court remarked “the lack of clear title and the segregated nature of their land triggered a cycle of poverty for black families that persisted for generations.” Nova Scotia has a long history of obscure land titles; however, the ensuing cycle of poverty appears to have disproportionately impacted African Nova Scotians. This thesis reframes the African Nova Scotian land titles discourse into a broader understanding about systemic anti-Black racism and White supremacist …

Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu

All Faculty Scholarship

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

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.

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

After Suffrage: The Unfinished Business Of Feminist Legal Advocacy, Serena Mayeri

All Faculty Scholarship

This Essay considers post-suffrage women’s citizenship through the eyes of Pauli Murray, a key figure at the intersection of the twentieth-century movements for racial justice and feminism. Murray drew critical lessons from the woman suffrage movement and the Reconstruction-era disintegration of an abolitionist-feminist alliance to craft legal and constitutional strategies that continue to shape equality law and advocacy today. Murray placed African American women at the center of a vision of universal human rights that relied upon interracial and intergenerational alliances and anticipated what scholars later named intersectionality. As Murray foresaw, women of color formed a feminist vanguard in the …

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 …

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

Debating The Past's Authority In Alabama, Sara Mayeux

Vanderbilt Law School Faculty Publications

With some exceptions, the major project of civil rights litigators today is not forward movement but the work of preserving as much as possible the gains of the 1960s against legal and political battering.29 Meanwhile, and ironically, the rise of conservative progress metanarratives reflects the achievement of both liberal and radical scholars of forcing into mainstream discourse greater recognition of the evils of slavery and Jim Crow. Respectable conservatives now join in denouncing the most flagrant forms of racial terror running through the American past (pace certain allies of the Trump Administration). But doing so places them in a bind, …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

All Faculty Scholarship

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

Intersectionality And The Constitution Of Family Status, Serena Mayeri

All Faculty Scholarship

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

The Role Of The Courts In Creating Racial Identity In Early New Orleans, Jack M. Beermann

Faculty Scholarship

Reviewing Kenneth R. Aslakson, Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York University Press 2014).

The racial history of New Orleans is unique among American cities, as is Louisiana's among the history of American states. In the antebellum period, there were more free people of color in New Orleans than in any other city in the South, and free people of color lived, and often prospered, throughout Louisiana. The presence of so many free people of color in New Orleans, and Louisiana more generally, arose from many factors, including the consequences …

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

A Look At Civil Gideon: Is There A Constitutional Right To Counsel In Certain Civil Cases?, Jess H. Dickinson

University of Arkansas at Little Rock Law Review

No abstract provided.

A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee

All Faculty Scholarship

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively …

A Conversation With Edie Windsor, Edie Windsor, Suzanne B. Goldberg, Madeline M. Gomez, Andrew Chesley

Faculty Scholarship

Suzanne Goldberg [SG]: It is not often that a law school gets to welcome a rock star. But in our world, Edie Windsor is a rock star. She is one of the major civil rights plaintiffs of our lifetime, whose lawsuit challenged – and triumphed over – the federal Defense of Marriage Act. Her victory in that suit has been vital to changing the landscape of marriage equality for all Americans. It is a tremendous honor, Edie, to have you here at Columbia Law School, and we welcome you.

Coercing Justice? Exploring The "Aspirations And Practice" Of Law As A Tool In Struggles Against Social Inequalities, Karen Schucher

PhD Dissertations

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

Christopher W. Schmidt

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

Publications

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …