Law Commons^™

The Future Of Intersectionality In Employment Law, Suzette Malveaux

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No abstract provided.

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

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Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

The Politicization Of Criminal Prosecutions, Wadie E. Said

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This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

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This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people's beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories about …

Debunking The Myth That Police Body Cams Are Civil Rights Tool, Scott Skinner-Thompson

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No abstract provided.

Criminal Law Exceptionalism, Benjamin Levin

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For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

A Taxonomy Of Silencing: The Law’S 100 Year Suppression Of The Tulsa Race Massacre, Suzette M. Malveaux

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Over one hundred years have passed since the 1921 brutal massacre of Tulsa’s African American community. This notorious attack came at the hands of a white mob and with the government’s blessing. With numerous centennial commemorations behind us, what has been learned? The answer to this question is crucial to preventing similar atrocities in the future.

One lesson is how important it is to tell the story—to honor the voices of those who lived through one of the most infamous government-sanctioned racial attacks in U.S. history. Knowledge is power.

Another lesson is how pernicious the law can be in silencing …

Criminal “Justice” As Racial Justice?, Aya Gruber

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No abstract provided.

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

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The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as "convenience voting" are really a mode of "survival voting" for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Anti-Subordination Torts, Scott Skinner-Thompson

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No abstract provided.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

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No abstract provided.

Pandemic Emotions: The Good, The Bad, And The Unconscious —Implications For Public Health, Financial Economics, Law, And Leadership, Peter H. Huang

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Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and …

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

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10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

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No abstract provided.

Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Desautels-Stein

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No abstract provided.

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

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This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

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Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

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People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

Wage Theft Criminalization, Benjamin Levin

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Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

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As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Policing And "Bluelining", Aya Gruber

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In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about …

A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Desautels-Stein

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There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan, David Takacs

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For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

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No abstract provided.

It's About Bloody Time And Space, Lolita Buckner Inniss

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Time frames relationships of power, especially in the context of law. One of the clearest ways in which time is implicated in both law and society is via discourses about women’s biological functions. This Article is an introduction to a larger project that analyzes legal discourses regarding a crucial aspect of women’s calendrically-associated biological functions: women’s menstrual periods. Over the course of the project, I explore legal discourses about menstruation through the notion of what literary theorist Mikhail Bakhtin calls “chronotopes”—a connectedness of temporal and spatial relationships. Temporality, Bakhtin argues, is closely associated with certain paradigmatic spaces, and the combination …

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth

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No abstract provided.

The Troubling Alliance Between Feminism And Policing, Aya Gruber

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No abstract provided.

While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss

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This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …