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The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

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 Jan 2020

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 ...


The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

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 pandemic has had a particularly grave impact on people of color and low-income individuals, while also affecting a wide array of tenants, students, and health care, service and “gig” workers. One consequence for law and policy is that addressing the social dislocations caused by the pandemic might lead to profound changes in what Americans consider essential goods for a sustainable society. This chapter examines government efforts to buttress the ...


An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw Jan 2020

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 ...


Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias Jan 2019

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 ...


Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg Jan 2018

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 ...


Every Dollar Counts: In Defense Of The Education Department's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa Jan 2017

Every Dollar Counts: In Defense Of The Education Department'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 in ...


Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman Jan 2017

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 ...


Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank Jan 2016

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank

Faculty Scholarship

Public education in the United States has been crippled by a combination of entrenched bureaucratic governance and special-interest politics. To remedy these failings, school districts, states, and the federal Education Department have adopted education reforms characterized by rigorous outcome-focused standards and assessments and the empowering of public schools, charter or otherwise, to meet the standards. Despite promising initial results, however, the reforms have been widely criticized, including by the populations they most seek to help. To explain this paradox, this Article first tries to assimilate the new education reforms to the most frequently proposed alternatives to bureaucratic governance — marketization, managerialism ...


Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg Jan 2016

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 ...


Law Schools, Leadership, And Change, Susan P. Sturm Jan 2013

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 ...


Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw Jan 2011

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 ...


Integration, Reconstructed, Olatunde C.A. Johnson Jan 2009

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 ...


The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm Jan 2007

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 Architecture ...


The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm Jan 2006

The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm

Faculty Scholarship

This Article develops a paradigm for advancing workplace equality when the problems causing racial and gender under-participation are structural, and the legal environment surrounding diversity initiatives is uncertain. It first analyzes three key dilemmas that have limited the efficacy of prior diversity initiatives: limited capacity to institutionalize change, a legal minefield, and ineffective public accountability. It then offers three related ideas in service of advancing workplace equity through institutional transformation. Although its focus is on higher education, the Article develops an approach with more general applicability. First, it develops the norm of institutional citizenship as a justification and goal for ...


Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault Jan 2006

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 matter of ...


Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen Jan 2006

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 ...


The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel Jan 2003

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic ...


The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel Jan 2003

The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel

Faculty Scholarship

We argue first that the new architecture of educational reform has emerged from the fusion of a top-down national movement for standards and bottom-up initiatives, some of the latter associated with Deweyan progressivism. A key feature of the reform architecture is its use of error-detection to compensate for design deficiencies. No one initially knows how to build a school system that enables poor and minority students to read and do mathematics at levels attained by rich white students. But following experimentation, error-detection and correction at the lowest levels to find out what works, higher level structures can be adjusted to ...


A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel Jan 2003

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, and particularly to racial ...


The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel Jan 2003

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 ...


Foreword, Robert E. Scott Jan 1998

Foreword, Robert E. Scott

Faculty Scholarship

The Equal Education Under the Law Symposium continues a conversation among legal and educational professionals that seeks to advance and perhaps refocus the rather dramatic debate over the future of public education in our country. The good news for this debate is that we start with a clear consensus on goals. Few, if any, would dissent from the following statement of principle: the future success of this nation depends in large measure on the requirement that every citizen have the chance to share in the country's good fortune, and the key to providing that chance, for all citizens, lies ...


Voice, Not Choice, James S. Liebman Jan 1991

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.


Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman Jan 1990

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown ...