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Legal History

Boston University School of Law

Faculty Scholarship

2023

Equal protection

Articles 1 - 2 of 2

Full-Text Articles in Law

After Mccleskey, Robert L. Tsai Jun 2023

After Mccleskey, Robert L. Tsai

Faculty Scholarship

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate's argument that significant racial disparities in the administration of Georgia's capital punishment laws violated the Fourteenth Amendment's Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state 's capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling's incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might …


Abandoning Animus, Robert L. Tsai Jan 2023

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …