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Articles 1 - 30 of 49
Full-Text Articles in Law
Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang
Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang
Faculty Scholarship
State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack — from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as …
Education Is Speech: Parental Free Speech In Education, Philip A. Hamburger
Education Is Speech: Parental Free Speech In Education, Philip A. Hamburger
Faculty Scholarship
Education is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.
Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot pressure parents, either directly or through conditions, to give up their own educational speech, let alone substitute state educational speech. This abridges …
Clinicians Reflect On Covid-19: Lessons Learned And Looking Beyond, The Association Of American Law Schools (Aals) Policy Committee, Deborah Archer, Caitlin Barry, Lisa Bliss, Gautam Hans, Vida Johnson, Carolyn Haas, Lynnise E. Pantin, Kele Stewart, Erica Wilson, The Clinical Legal Education Association (Clea) Committee For Faculty Equity And Inclusion, Priya Baskaran, Jennifer Fernandez, Crystal Grant, Anjum Gupta, Julia Hernandez, Alexis Karteron, Shobha Mahadev
Clinicians Reflect On Covid-19: Lessons Learned And Looking Beyond, The Association Of American Law Schools (Aals) Policy Committee, Deborah Archer, Caitlin Barry, Lisa Bliss, Gautam Hans, Vida Johnson, Carolyn Haas, Lynnise E. Pantin, Kele Stewart, Erica Wilson, The Clinical Legal Education Association (Clea) Committee For Faculty Equity And Inclusion, Priya Baskaran, Jennifer Fernandez, Crystal Grant, Anjum Gupta, Julia Hernandez, Alexis Karteron, Shobha Mahadev
Faculty Scholarship
As a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic.
In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by …
The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson
The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson
Faculty Scholarship
The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …
Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman
Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman
Faculty Scholarship
We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …
Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias
Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias
Faculty Scholarship
Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez
Faculty Scholarship
Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Faculty Scholarship
“If you’re afraid to offend, you can’t be honest.”
“If you offend me, I can’t hear what you’re trying to tell me.”
—overheard on campus
The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.
Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …
Every Dollar Counts: In Defense Of The Obama Department Of Education's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa
Every Dollar Counts: In Defense Of The Obama Department Of Education's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa
Faculty Scholarship
Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a study by the U.S. Department of Education discovered that nationwide, more than forty percent of schools eligible for Title I funding based on their high-poverty status receive less state and local funding for instructional and other personnel costs than non-Title I schools …
Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma
Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma
Faculty Scholarship
Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.
To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy — marketization, managerialism, or professionalism/craft — and that …
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
Faculty Scholarship
In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …
Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman
Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman
Faculty Scholarship
In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form …
Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg
Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg
Faculty Scholarship
This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …
What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger
What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger
Faculty Scholarship
This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to …
The Ph.D. Rises In American Law Schools, 1960-2011: What Does It Mean For Legal Education?, Justin Mccrary, Joy Milligan, James Cleith Phillips
The Ph.D. Rises In American Law Schools, 1960-2011: What Does It Mean For Legal Education?, Justin Mccrary, Joy Milligan, James Cleith Phillips
Faculty Scholarship
At a time when some perceive law schools to be in crisis and the future of legal education is being debated, the structural shift toward law professors with Ph.Ds is an important, under-examined trend. In this article, we use an original dataset to analyze law school Ph.D hiring trends and consider their potential consequences. Over the last fifty years the proportion of law professors with Ph.Ds has risen dramatically. Over a third of new professors hired at elite law schools in recent years come with doctoral degrees in fields outside the law. We use our data to consider the scope, …
No Idea What The Future Holds: The Retrospective Evidence Dilemma, Dennis Fan
No Idea What The Future Holds: The Retrospective Evidence Dilemma, Dennis Fan
Faculty Scholarship
The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes over whether the school district drafted an individualized education program capable of providing a child with disabilities a “free appropriate public education.” But what evidence parties can bring to these disputes is not settled. Circuit courts are split on whether “retrospective evidence” — evidence that arises after the school district drafts the individualized education program — is admissible. This Note addresses present …
Deals Or No Deals: Integrating Transactional Skills In The First Year Curriculum, Lynnise E. Pantin
Deals Or No Deals: Integrating Transactional Skills In The First Year Curriculum, Lynnise E. Pantin
Faculty Scholarship
This article joins a growing body of scholarship on the pedagogy of transactional law and skills. This article challenges the traditional pedagogy of teaching law students to think like a lawyer and argues that law schools should shift the analytical framework of a litigation-dominated model, which is typically taught in the first year, to a model that incorporates transactional skills teaching into the first year law school curriculum. This approach will (1) create a greater balance of skills taught in the first year and (2) address the mandate to train more practice-ready lawyers. This article argues that the best place …
Law Schools, Leadership, And Change, Susan P. Sturm
Law Schools, Leadership, And Change, Susan P. Sturm
Faculty Scholarship
Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies …
The First Year: Integrating Transactional Skills, Lynnise E. Pantin
The First Year: Integrating Transactional Skills, Lynnise E. Pantin
Faculty Scholarship
My name is Lynnise Pantin. I teach at New York Law School, and my talk today focuses on integrating transactional skills into the first-year curriculum.
As a first premise, the law school curriculum is dominated by litigation oriented skills, and I can argue that there is a litigation bias that is pervasive in legal education. I am hoping that, by engaging with those of you who teach first year students, we can start to talk about creating and developing transactional skills within a context that is already there in the first-year curriculum.
If Only We Knew What We Know, Conrad Johnson, Brian Donnelly
If Only We Knew What We Know, Conrad Johnson, Brian Donnelly
Faculty Scholarship
This article contributes to the broader themes surrounding law and technology raised in this symposium by taking a look at lawyering and knowledge management. This topic is presented both as a theory and with a case study. The first part provides a brief summary of the basic lawyering paradigm used in the Lawyering in the Digital Age Clinic at Columbia Law School – that all lawyering activities can be understood within the context of gathering, managing and presenting information. The second category of the paradigm is expanded upon to review the activity of managing knowledge. Then, knowledge management is positioned …
Affirmative Action In Higher Education Symposium: Comment, Lee C. Bollinger
Affirmative Action In Higher Education Symposium: Comment, Lee C. Bollinger
Faculty Scholarship
This issue – affirmative action in higher education – is an issue of enormous significance for the country. So I don't for a second treat this as just another conversation about an important legal question. I think this is one of those issues that define the country.
I'll tell you what I did as President of the University of Michigan, and in the course of that I'll try to explain the ways in which we formulated the cases that went to the Supreme Court and resulted in very important clarifications to the Fourteenth Amendment and affirmative action. Then I want …
Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw
Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw
Faculty Scholarship
This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. The second objective is to explore the contemporary significance of CRT's trajectory in light of today's "post-racial" milieu. The Article posits …
Integration, Reconstructed, Olatunde C.A. Johnson
Integration, Reconstructed, Olatunde C.A. Johnson
Faculty Scholarship
This article examines Parents Involved for the light it sheds on integration's continuing relevance to educational and social equity. Part I examines the story of school integration in Jefferson County and shows how this largely successful metropolitan integration plan challenges claims of racial integration's futility. Part II puts forward the empirical evidence that plaintiffs in Parents Involved used in seeking to establish that school boards have a compelling interest in promoting racial integration and avoiding the harm of racially isolated schools. This part argues that the empirical case for racial integration, while not without limitations, moves beyond stigmatization, psychological harm, …
The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm
The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm
Faculty Scholarship
Structural inequality has captured the attention of academics, policymakers, and activists. This structural reorientation is occurring at a time of judicial retrenchment and political backlash against affirmative action. These developments have placed in sharp relief the mismatch between structural diagnoses and the dominant legal frameworks for addressing inequality. Scholars, policymakers, and activists are faced with the pressing question of what to do now. They share a need for new frameworks and strategies, growing out of a better understanding of institutional and cultural change.
I am honored that the Harvard Journal of Law & Gender has used the publication of The …
Lawyering Across Multiple Legal Orders – Rethinking Legal Education In Comparative And International Law, Katharina Pistor
Lawyering Across Multiple Legal Orders – Rethinking Legal Education In Comparative And International Law, Katharina Pistor
Faculty Scholarship
I appreciate the opportunity to briefly introduce a new course Columbia Law School is offering to first year students for the first time this spring semester. The course, which I will be co-teaching with my colleague George Bermann, is called "Lawyering in Multiple Legal Orders." The title reflects the basic "philosophy" of the course, namely that legal practitioners today will invariably work in more than one legal order. This notion is not unfamiliar to lawyers practicing in federal systems, such as the United States. By the end of the first semester students have a basic understanding of the federalist system …
Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault
Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault
Faculty Scholarship
The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.
The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a …
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Faculty Scholarship
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …
With Strings Attached: The Limits On Local Control, Richard Briffault
With Strings Attached: The Limits On Local Control, Richard Briffault
Faculty Scholarship
In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any" input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective …
The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel
The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel
Faculty Scholarship
It is a pleasure to address such well-informed, insightful and well-intentioned responses to our Article. Intellectual predispositions and differing assessments of the prospects of reform aside, it is striking that so many participants have firsthand experience of the new model school, the new politics in all their mystery, and even non-court-centric judicial review. It is clear that something is afoot, and not just in academic circles, when observers as different as Diane Ravitch, the critic of Deweyan latitudinarianism, and Gordon Whitman, the community organizer, are both surprised to discover that standardized testing can go hand in hand with individualized education …