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Mine The Gap: Using Racial Disparities To Expose And Eradicate Racism, James S. Liebman, Kayla C. Butler, Ian Buksunski Jan 2021

Mine The Gap: Using Racial Disparities To Expose And Eradicate Racism, James S. Liebman, Kayla C. Butler, Ian Buksunski

Faculty Scholarship

For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment's promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court's limitation of equal protection to public actors' disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.

For a substantial segment ...


Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm Jan 2020

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to ...


Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg Jan 2020

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal ...


Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter Jan 2020

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of ...


For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt Jan 2020

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme ...


Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell Jan 2020

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data ...


Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt Jan 2020

Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt

Faculty Scholarship

As COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis.


The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens Jan 2020

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the ...


Covid-19 And Lgbt Rights, Suzanne B. Goldberg Jan 2020

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2 ...


Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson Jan 2019

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to ...


Using Shifts In Deployment And Operations To Test For Racial Bias In Police Stops, John Macdonald, Jeffrey A. Fagan Jan 2019

Using Shifts In Deployment And Operations To Test For Racial Bias In Police Stops, John Macdonald, Jeffrey A. Fagan

Faculty Scholarship

We rely on a policy experiment in the New York City Police Department (NYPD) to address the well-known problems of omitted variable bias and infra-marginality in traditional outcomes tests of racial bias in police stops. The NYPD designated specific areas as impact zones and deployed extra officers to these areas and encouraged them to conduct more intensive stop, question, and frisk activity. We find that the NYPD are more likely to frisk black and Hispanic suspects after an area becomes an impact zone compared to other areas of the city.


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we ...


Race And Bankruptcy: Explaining Racial Disparities In Consumer Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller Jan 2018

Race And Bankruptcy: Explaining Racial Disparities In Consumer Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller

Faculty Scholarship

Among consumers who file for bankruptcy, African Americans file Chapter 13 petitions at substantially higher rates than other racial groups. Some have hypothesized that the difference is attributable to discrimination by attorneys. We show that the difference may be attributable, in substantial part, to a selection effect: Among distressed consumers, African Americans have longer commutes to work, rely more heavily on cars for the commute, and therefore have greater demand for a bankruptcy process (Chapter 13) that allows them to retain their cars. We begin by showing that African Americans tend to have longer commuting times than other consumers and ...


Equality Law Pluralism, Olatunde C.A. Johnson Jan 2017

Equality Law Pluralism, Olatunde C.A. Johnson

Faculty Scholarship

This contribution to the Constance Baker Motley Symposium examines the future of civil rights reform at a time in which longstanding limitations of the antidiscrimination law framework, as well as newer pressures such as the rise of economic populism, are placing stress on the traditional antidiscrimination project. This Essay explores the openings that nevertheless remain in public law for confronting persistent forms of exclusion and makes the case for greater pluralism in equality law frameworks. In particular, this Essay examines innovations that widen the range of regulatory levers for promoting inclusion, such as competitive grants, tax incentives, contests for labor ...


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson Jan 2016

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual’s income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant’s credit history. While the deployment of subnational power is not new to civil rights, what does appear novel is the number of these initiatives ...


Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon Jan 2016

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.


Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson Jan 2016

Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson

Faculty Scholarship

Is racial inequality an unwelcome intruder to the new discourse on economic inequality? The present discourse on economic inequality emphasizes decades-long trends that have increased economic inequality, whether as a result of reoccurring features in the structure of capitalist economies or more recent changes in institutional, structural, and economic conditions. Researchers direct us to the rising fortunes of the top earners and asset holders relative to the rest, the declining fortunes of the middle class harmed by stagnating wages, and the declining share of industries (like manufacturing) in the economy. This new economic inequality discourse has preoccupied economists, garnered its ...


Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina Jan 2016

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social ...


The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson Jan 2016

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history.

This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core ...


A Conversation With Edie Windsor, Edie Windsor, Suzanne B. Goldberg, Madeline M. Gomez, Andrew Chesley Jan 2015

A Conversation With Edie Windsor, Edie Windsor, Suzanne B. Goldberg, Madeline M. Gomez, Andrew Chesley

Faculty Scholarship

Suzanne Goldberg [SG]: It is not often that a law school gets to welcome a rock star. But in our world, Edie Windsor is a rock star. She is one of the major civil rights plaintiffs of our lifetime, whose lawsuit challenged – and triumphed over – the federal Defense of Marriage Act. Her victory in that suit has been vital to changing the landscape of marriage equality for all Americans. It is a tremendous honor, Edie, to have you here at Columbia Law School, and we welcome you.


When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss Jan 2015

When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss

Faculty Scholarship

In numerous contexts today, ranging from no-fly lists, to the designation of foreign terrorist organizations, to controls over foreign investments in the United States, federal authorities reach decisions having dramatic consequences for individuals’ liberty and property on the basis of information that those individuals cannot obtain, even in summary form. Recent and pending litigation has challenged these deprivations on due process grounds, with only moderate success. Perhaps unclassified information on which the government has acted must be revealed, with an opportunity given to challenge it and to submit contrary evidence; but in the words of the DC Circuit writing last ...


Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg Jan 2015

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances. This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts ...


(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 ...


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 ...


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 ...


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 ...


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 ...


The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon Jan 2014

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing ...