Law Commons^™

Religion, Discrimination, And The Future Of Public Education, Derek W. Black

Faculty Publications

The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools.

While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, …

Myth-Busting Restorative Justice: Uncovering The Past And Finding Lessons In Community, Aparna Polavarapu

Faculty Publications

A common narrative about modern restorative justice is that it is a revival of historic and indigenous justice practices that have been practiced around the world. Critics of this narrative call it a myth, arguing that the claim is overbroad and unsupported by existing evidence. Embedded in this conversation are questions about how to respect the contributions of indigenous traditions and avoid whitewashing. Such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor. But ignoring the indigenous contribution to restorative justice altogether …

The Racialized Violence Of Police Canine Force, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

The Clinic As A Site Of Grounded Pedagogy, Madalyn K. Wasilczuk

Faculty Publications

Legal education tends to focus on teaching students federal law from hefty casebooks, inculcating the ability to "think like lawyers." In a sea of Socratic lectures and hypotheticals, students often take refuge in clinics as an island of practical skills-building, client centeredness, and individual fulfillment. Yet even clinics sometimes fail to highlight for students how the place where they practice, with its particular political context and history, shapes their clients' lives and legal problems. This Article describes the law school clinic as a site of grounded pedagogy: a teaching method that centers the con­nection between local history and the present …

On The Legal Life-History Of Beaches, Josh Eagle

Faculty Publications

Climate change is, among other things, making it more and more difficult to get to the beach. Recent studies show that rising sea levels have been shrinking America’s beaches through erosion and inundation. This trend is unlikely to slow down anytime soon, and some scientists predict that we will see feet of additional sea-level rise within our lifetimes. While beaches are shrinking, reducing the availability of recreational opportunities for locals and tourists alike, the number of people who want to visit the beach has grown dramatically. The growth in demand is due to a variety of factors, including the very …

A New Test For The New Crime Exception, Colin Miller

Faculty Publications

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

The Two Title Ixs, Emily Suski

Faculty Publications

No abstract provided.

Federal Bureaucratic Studies, Jesse M. Cross

Faculty Publications

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

For Their Own Good: Girls, Sexuality, And State Violence In The Name Of Safety, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

Faculty Publications

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious …

Darnell, Latoya, Brad, And Laurie: Lawyers’ Responses To Email Requests For Representation, Elizabeth S. Chambliss

Faculty Publications

No abstract provided.

Solving The "King Lear Problem", Benjamin Means

Faculty Publications

In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.”

The conventional wisdom is wrong. Lear’s succession plan …

Rectifying Wrongful Convictions Through The Dormant Grand Jury Clause, Colin Miller

Faculty Publications

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. …

Climate Change Compliance, Susan S. Kuo, Benjamin Means

Faculty Publications

Unless corporations prioritize climate change mitigation, efforts to control global warming will fail. Yet, the strategies that have been proposed for enlisting corporations are insufficient to the task. In our era of political polarization, a comprehensive “Green New Deal” to transition the U.S. economy away from fossil fuels is a nonstarter. Nor can we expect corporate risk management or social responsibility to fill the gap; there are practical limits to how far corporate managers can depart from strategies designed to maximize profits for investors.

This Article contends that climate change is a compliance issue. Scholars have overlooked compliance as a …

Creditors’ Rights In Property Subject To A Beneficiary’S Right Of Withdrawal, S. Alan Medlin, F. Ladson Boyle

Faculty Publications

Estate plans often give trust beneficiaries powers of withdrawal for both tax and nontax reasons. For tax reasons, these powers of withdrawal are typically limited, such as a “five or five power” or a so-called Crummey power commonly pegged to the annual gift tax exclusion amount. A central issue with limited powers of with-drawal is the right of a beneficiary’s creditor to reach trust property subject to the beneficiary’s power to withdraw. Recent uniform statutes, such as the Uniform Trust Code and the Uniform Power of Appointment Act, as well as the Restatement (Third) of Trusts, provide guidance. This Article …

The Lived Experience Of Health Insurance: An Analysis And Proposal For Reform, Jacqueline R. Fox

Faculty Publications

People are carrying tens of billions of dollars of medical debt, much of it in collections. We delay going to the Emergency Department while having a heart attack because it may cost too much. Doctors try to help insured patients find the best coupon to offset the high copayment for a necessary prescription drug. For inexpensive drugs, insurers make a profit by clawing back copayments that exceed what the drug costs. People who are already arbitrarily disadvantaged because of race, gender, health status, LGBTQ status, obesity, etc. are disproportionately burdened by all of this.

No one would design a system …

Institutional Betrayals As Sex Discrimination, Emily Suski

Faculty Publications

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe …

Taxing Choices, Tessa R. Davis

Faculty Publications

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …

The Dental Health Of Rural Elderly People And Its Social Justice Implications, Health In The Hills: Understanding The Impact Of Health Care Law In Rural Communities, Jacqueline R. Fox

Faculty Publications

No abstract provided.

Rights To Nowhere: The Idea's Inadequacy In High-Poverty Schools, Claire Raj

Faculty Publications

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, …

The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller

Faculty Publications

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled …

The Miseducation Of Public Citizens, Etienne C. Toussaint

Faculty Publications

The American Bar Association Model Rules of Professional Conduct calls upon lawyers, as public citizens, to embrace a special responsibility for the quality of justice in the legal profession and in society. Yet, some law professors have historically adopted a formalistic and doctrinally neutral approach to law teaching that elides critical perspectives of law, avoids the intersection of law and politics, and tends to overlook the way law can construct the very social injustices that it seeks to contain. The objective, apolitical, and so-called “colorblind” jurisprudential stance in many law classrooms inflicts intellectual violence upon law students who discover a …

For Every Rat Killed, Etienne C. Toussaint

Faculty Publications

If my grandmother had survived the sickness of old age and were alive to witness the economic injustices wrought by capitalist culture, what would she think? If my grandmother were alive to observe familiar technologies for exterminating household pests—surveil-lance, capture, imprisonment, disposal—being increasingly aimed toward low-income Black communities, what would she believe? If my grandmother were alive to discover, in the palm of her hands, a digital platform for spreading information (and misinformation) to the masses and painting new futures into the minds of lawmakers and politicians, what would she say?

Studies have shown that low-income individuals are more likely …

Public Accomodations, Public Perceptions, And Workplace Law, Joseph Seiner

Faculty Publications

No abstract provided.

Time, Equity, And Sexual Harassment, Joseph Seiner

Faculty Publications

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.

The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is …

Preemption & Gender & Racial (In)Equity: Why State Tort Law Is Needed In The Cosmetic Context, Marie C. Boyd

Faculty Publications

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal …

Rural Estrangement And The Regulatory State, Ann M. Eisenberg

Faculty Publications

In today’s polarized social and political climate, rural alienation from government is often dismissed as “just more politics” or a symptom of problematic cultural norms. This Article takes rural disaffection from government seriously, with a focus on rural relationships with the federal regulatory state. The Article argues that rural disaffection from the regulatory state is not solely a cultural or political phenomenon among white conservatives. Rural disaffection is also a broader structural issue that stems in part from the regulatory state’s crisis of legitimacy.

Two factors show that rural disaffection from the regulatory state is more diffuse and profound than …

Freedom, Democracy, And The Right To Education, Derek W. Black

Faculty Publications

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made …

Adjudicating Identity, Laura Lane-Steele

Faculty Publications

No abstract provided.