Law Commons^™

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 5: Civil Rights And Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

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Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.

Section 7: Same-Sex Marriage, Institute Of Bill Of Rights Law, William & Mary Law School

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The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas

Faculty Publications

The first Justice John Marshall Harlan’s status as one of the greatest Supreme Court Justices in American history rests largely upon his civil rights jurisprudence. The literature exploring the nuances of Harlan’s civil rights jurisprudence is vast. Far less attention has been paid to the reasons for Harlan’s strong civil rights views. Developing a rich sense of Harlan’s thinking has been difficult because Harlan did not leave behind a large trove of non-judicial writings. There is, however, a remarkable source of Harlan’s thought that has been largely overlooked by scholars: Harlan’s constitutional law lectures at George Washington Law School of …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Supreme Court Report 2007-2008, Julie M. Cheslik, Aimee L. Morrison, Tyler J. Scott

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2007-2008 Term that are of particular relevance to state and local governments including those involving voting and elections, speech, class-of-one equal protection claims, immunity, taxation, preemption, and the Fourth and Sixth Amendments.

Against the backdrop of the 2008 presidential election between Democrat Barack Obama and Republican John McCain, and an economy plagued by recession and federal bailouts of the finance and mortgage industries, the Court continued in a largely conservative vein, reflecting the policies and predilections of the majority of justices. The Court reasserted its distaste for unfettered …

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 2: Town Meeting: Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School

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Can Public Housing Tenants, Alleging Civil Rights Violations, Enforce Federal Housing Law?, Douglas Bowman, Neal Devins

Faculty Publications

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Book Review Of Equal Justice: The Warren Era Of The Supreme Court, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.