Law Commons^™

Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson, Jr.

Et Cetera

Although the United States Supreme Court has held that public school students maintain freedom of speech and expression in school, courts have continued to restrict these Constitutional rights for these students. The speech protective standard from Tinker has gone from being speech protective to a test that favors and is deferential to school officials embroiled in students’ free-speech controversies. We need to regain the attitude of gratitude for students and their rights.

This abstract was written after publication by 2023-2024 Et Cetera Editor-in-Chief Philip Shipman

Holy Gender! Promoting Free Exercise Of Gender By Discernment Without Establishing Binary Sex Or Compulsory Fluidity, José Gabilondo

Seattle Journal for Social Justice

No abstract provided.

Uncompromising Hunger For Justice: Resistance, Sacrifice, And Latcrit Theory, Edwin G. Lindo, Brenda Williams, Marc-Tizoc Gonzalez

Seattle Journal for Social Justice

No abstract provided.

Never On Sunday: Workplace Religious Freedom In The New Millennium, Marianne C. Delpo

Maine Law Review

Imagine being fired for refusing to sing Happy Birthday. Now imagine collecting $53,000 for that firing--from a waitressing job. Science fiction? Not exactly. Try religious discrimination in the workplace--1990s style. Title VII of the Civil Rights Act of 1964 has long proscribed such treatment, but lawsuits claiming this type of workplace discrimination were relatively rare for many years. Now claims are on the rise, up 18% over the past five years, and the substance of religious discrimination claims is changing to include some unprecedented fact patterns. This new activity in employment discrimination law, as well as the growing likelihood that …

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …

Foreword—Police Misconduct And Kibbe V. City Of Springfield, Harris Freeman

Faculty Scholarship

The Law Review’s 2017 symposium, “Perspectives on Racial Justice in the Era of #BlackLivesMatter,” appropriately opened with a panel that addressed the ongoing challenge of combating police misconduct, as seen through the lens of Kibbe v. City of Springfield, a civil rights case that unfolded in Western Massachusetts and reached the United States Supreme Court thirty years ago. Kibbe presented the Court with the question of what the proper standard of liability should be for a municipality accused of a civil rights violation under 42 U.S.C. § 1983 for inadequately training a police officer who violates a person’s civil …

Border Enforcement And Civil Rights Along The Texas-Mexico Border, Esther Reyes

Latino Public Policy

Over the past two decades, spending on enforcement along the southwestern border of the United States has expanded dramatically. The annual budget of the U.S. Border Patrol, increased from $400 million in fiscal year 1994 to $3.8 billion in fiscal year 2017. During this period, the number of Border Patrol agents stationed along the U.S.Mexico border grew by nearly 450 percent, from 3,747 to over 16,605 agents. Meanwhile, apprehensions of unauthorized migrants along the U.S.-Mexico border declined from 979,101 in 1994 to 303,916 in 2017.

These expansions and the accompanying declines in immigrant populations and apprehensions have raised concerns about …

When Is A Right Not A Right?: Qualified Immunity After Pearson, Anthony Stauber

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist

Articles

Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …

The Middle-Class Constitution: A Response, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

I am very grateful to the Boston University Law Review for bringing together such a terrific group of scholars to engage with my book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic. It is a testament to the work and excellence of the Boston University Law Review that they pulled together such an intellectually engaging group of commentators. My deepest thanks also to Professors Markovits, Rahman, Lyons, Epstein, and Somin for taking the time to read the book and comment on it.

The Rugged Individual's Guide To The Fourth Amendment: How The Court's Idealized Citizen Shapes, Influences, And Excludes The Exercise Of Constitutional Rights, Scott E. Sundby

Articles

Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen

Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who was willing to be arrested rather than sit in the back of the bus?

But while these stories of everyday individuals …

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

Eating And Being: The Constitutive Process Of Consuming Food At Odds Wth The Experience Of Incarceration In American Prisons And Jails, Macy Rhea Verges

Senior Projects Spring 2018

Senior Project submitted to The Division of Social Studies of Bard College.

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Biosocial Criminology Versus The Constitution, Karen E. Balter

Regis University Student Publications (comprehensive collection)

The continually emerging field of biosocial criminology provides a basis for productively merging biology with sociological reasonings for criminal behavior. Mainstream research in criminology focuses on environmental factors as the sole reason individuals exhibit antisocial behavior patterns and may ultimately commit crimes. Criminological research has travelled in this direction for decades. The current climate within this community subscribes heavily to the notion that biology has very little to do with why people behave the way they do, and if it did, government control would be the norm. The nature of biocriminology opens a door through which constitutional issues may enter. …

Bias In, Bias Out, Sandra G. Mayson

All Faculty Scholarship

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies …

The Federal Rules Of Inmate Appeals, Catherine T. Struve

All Faculty Scholarship

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management …

Medical Necessity: A Higher Hurdle For Marginalized Taxpayers?, Julie Furr Youngman, Courtney D. Hauck

Loyola of Los Angeles Law Review

Civil rights protection for transgender people—and in particular access to affordable health care—is currently the subject of intense political scrutiny, with a hostile administration chipping away at legal protections. Among other setbacks, a federal district court enjoined regulatory guidelines that were issued in 2016 to clarify that the federal prohibition on sex discrimination in health insurance applies to discrimination on the basis of gender identity and transgender status, and the promulgating agency itself is now reconsidering the guidelines. Without explicit federal protections against discrimination by health insurers and in the face of uneven state law protections, the ability to deduct …