Law Commons^™

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Panel 2 - Unreported Shortcomings Of Title Ix, Lisa Taylor, Leslie Annexstein, Elizabeth Kristein, Natasha Martin, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

MODERATOR: Hello, everyone, and welcome to our second panel, Unreported Shortcomings of Title IX. I’m going to start off with a quick introduction of our moderator. Today we have Dean Lisa Taylor who is our Dean for Diversity, Inclusion and Affinity Relations at WCL. She is much beloved by students of the Journal and students of WCL in general. And I know she is going to kick off a great panel. Dean Taylor, it’s all yours.

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

Importing Indian Intolerance: How Title Vii Can Prevent Caste Discrimination In The American Workplace, Brett Whitley

Arkansas Law Review

"If Hindus migrate to other regions on [E]arth, [Indian] Caste would become a world problem." - Dr. B.R. Ambedkar (1916) Imagine it is the year 2020. You are one of the more than 160 million people across India that are labeled as Dalits, formerly known as the “Untouchables." Most Hindus view Dalits as belonging to the lowest rung in the ancient system of social stratification that impacts individuals across the globe called the caste system. Your people have endured human rights abuses for centuries, but luckily, neither you nor a loved one have ever been the victim of one of …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Denouncing The Revival Of Pre-Roe V. Wade Abortion Bans In A Post-Dobbs World Through The Void Ab Initio And Presumption Of Validity Doctrines, Nora Greene

American University Journal of Gender, Social Policy & the Law

The United States Supreme Court voted to overturn Roe v. Wade in a leaked draft of Dobbs v. Jackson Women’s Health Organization. Written by Justice Alito and joined by four of the other conservative justices, the decision describes Roe as “egregiously wrong from the start” and blatantly overrules the landmark holding and its prodigy, Planned Parenthood v. Casey. In their state codes, nine states—Alabama, Arizona, Arkansas Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin— have unrepealed criminal abortion bans enacted before Roe. These bans prohibit abortion at any point in pregnancy unless to preserve the life of the pregnant person …

Civil Rights In The Workplace: It's Time To Cut The Excess And Get To The Truth, Hnin N. Khaing

American University Journal of Gender, Social Policy & the Law

On February 8, 1964, during the last few hours before the enactment of the Civil Rights Act, thanks to an individual described as a “racist, male octogenarian,” Congress haphazardly added “sex” as a prohibited basis for discrimination alongside race, color, religion, and national origin under Title VII1 of the Act. It was not until two decades later, in 1986, that the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII. Five years later, Anita Hill’s riveting public testimony, during the nomination hearings for Justice Clarence Thomas, ignited a nationwide discussion on sexual harassment. A quarter …

Reframing Hate, Lu-In Wang

Articles

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

How The Gun Control Act Disarms Black Firearm Owners, Maya Itah

Washington Law Review

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to …

The Last Call For Civil Rights: Toward Economic Equality, Steve Lee

Georgia State University Law Review

Over six decades have passed since the civil rights movement began in the mid-1950s, but American society has not yet fully realized the promise of the civil rights movement, which at its core embodies the protection and promotion of equity and dignity of all people. Despite the historic improvements that accord the legal protection of equal rights among different races, genders, and ethnic groups, significant economic disparity among racial and regional lines persists. The Reverend Martin Luther King, Jr. declared, “Now our struggle is for genuine equality, which means economic equality.” However, the pursuit of economic equality has not been …

Deficit Frame Dangers, Jonathan P. Feingold

Georgia State University Law Review

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. …

Disabled Perspectives On Legal Education: Reckoning And Reform, Lilith A. Siegel, Karen Tani

All Faculty Scholarship

This is an Introduction to a Journal of Legal Education symposium on "Disabled Law Students and the Future of Legal Education." The symposium's focal point is a set of first-person essays by disabled lawyers. Writing thirty years after the inclusive promise of the Americans with Disabilities Act, but also amidst powerful evidence (via the pandemic) of the devaluation of people with disabilities, contributors reflect on their experiences in law school and the legal profession. The symposium pairs these essays with commentary from some of the nation’s leading scholars of disability law. The overarching goals of the symposium are to help …

Trump’S Insurrection: Pandemic Violence, Presidential Incitement And The Republican Guarantee, Elizabeth M. Iglesias

University of Miami Race & Social Justice Law Review

Our own experience has corroborated the lessons taught by the examples of other nations; . . . that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

Scholarly Works

Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly …

Two Concepts Of Gun Liberty, Joseph Blocher

Faculty Scholarship

No abstract provided.

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

Masterpiece Cakeshop'S Homiletics, Marc Spindelman

Cleveland State Law Review

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Foreword, Honorable Nathaniel R. Jones

Freedom Center Journal

The articles in this issue of The Freedom Center Journal are timely challenges to the persistent efforts to undermine the American values enshrined in the Preamble of the Constitution and the body of the Constitution itself with its three Civil War Amendments.

The student editors of this volume intended the selected contributions to offer readers a nuanced view of our nation’s current identity crisis. The collection is offered in the hope that it will encourage further thinking and discussion about what it means to be part of the American experiment with democratic self-governance in an age of resurgent white supremacy.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

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 on …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

Joaquin Ávila: America At Its Best, Luis Ricardo Fraga

Seattle Journal for Social Justice

No abstract provided.

Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang

Seattle Journal for Social Justice

No abstract provided.

Establishment Of Religion Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.