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Lawyering That Has No Name: Title Vi And The Meaning Of Private Enforcement, Olatunde C.A. Johnson Jan 2014

Lawyering That Has No Name: Title Vi And The Meaning Of Private Enforcement, Olatunde C.A. Johnson

Faculty Scholarship

On the occasion of the fiftieth anniversary of the Civil Rights Act of 1964, this Essay examines the problem of private enforcement of Title VI. The Essay reviews the unduly constrained approach to private enforcement taken by courts in prominent decisions such as Regents of the University of California v. Bakke and Alexander v. Sandoval. Yet the Essay argues that to focus primarily on private court enforcement of Title VI will continue to relegate the provision to the margins of civil rights discourse, to make the provision appear largely as the "sleeping giant" of civil rights law. The practice of ...


Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffrey Fagan, Amanda Geller Jan 2014

Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as ...


Uncivil Obedience, Jessica Bulman-Pozen, David Pozen Jan 2014

Uncivil Obedience, Jessica Bulman-Pozen, David Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law-following. We seek to identify, elucidate, and call attention to the ...


(Anti)Canonizing Courts, Jamal Greene Jan 2014

(Anti)Canonizing Courts, Jamal Greene

Faculty Scholarship

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts ...


Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery Jan 2014

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence of ...


Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg Jan 2014

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based ...


Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray Jan 2014

Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that ...


Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg Jan 2014

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument’s evanescence in contemporary marriage litigation, I draw lessons about how and why arguments become risky in social justice cases and whether they should be made nonetheless. This context is particularly fruitful because some judges, advocates and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on ...


Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt Jan 2014

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and ...


Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley Jan 2014

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their ...


Leveraging Antidiscrimination, Olatunde C.A. Johnson Jan 2014

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew ...