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Articles 1 - 14 of 14
Full-Text Articles in Law
Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Faculty Scholarship
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …
Classrooms Into Courtrooms, Naomi M. Mann
Classrooms Into Courtrooms, Naomi M. Mann
Faculty Scholarship
The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …
Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby
Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby
Faculty Scholarship
President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
Faculty Scholarship
The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …
The Expressive Fourth Amendment, Karen Pita Loor
The Expressive Fourth Amendment, Karen Pita Loor
Faculty Scholarship
After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of …
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Faculty Scholarship
One of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I …
A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro
A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro
Faculty Scholarship
In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.
(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri
(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri
Faculty Scholarship
A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of …
The Trauma Of Awakening To Racism: Did The Tragic Killing Of George Floyd Result In Cultural Trauma For Whites?, Angela Onwuachi-Willig
The Trauma Of Awakening To Racism: Did The Tragic Killing Of George Floyd Result In Cultural Trauma For Whites?, Angela Onwuachi-Willig
Faculty Scholarship
The act of witnessing the killing of George Floyd, a forty-six-year-old, African-American father, brother, partner, and son, at the hands of the police caused many white individuals to experience an epiphany about racism, specifically structural racism, in the United States. Following the horrific killing of George Floyd, many white people began to shift their thinking about the existence and prevalence of racialized police brutality, reconsidering the manner in which they had always viewed the world around them. Indeed, many white individuals began to recognize and acknowledge the varied ways in which whiteness worked to privilege them in our society, even …
The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose
The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose
Faculty Scholarship
In The Color Line: A Short Introduction, David Lyons provides a valuable service to students and academics in law, social sciences, and humanities by providing a concise history of the development and maintenance of race and racial order through law, policy, and discrimination in the United States. Lyons effectively outlines how race and racism were developed through these mechanisms in an effort to facilitate and maintain white supremacy.
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Faculty Scholarship
In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times of democratic discord and …
Experimental Meets Intersectional: Visionary Black Feminist Pragmatism And Practicing Constitutional Democracy, Linda C. Mcclain
Experimental Meets Intersectional: Visionary Black Feminist Pragmatism And Practicing Constitutional Democracy, Linda C. Mcclain
Faculty Scholarship
That pragmatism can do-and already is doing-real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In …
A Proper Burial, Robert L. Tsai
A Proper Burial, Robert L. Tsai
Faculty Scholarship
This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned …
Deficit Frame Dangers, Jonathan Feingold
Deficit Frame Dangers, Jonathan Feingold
Faculty Scholarship
Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.
Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. …