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Full-Text Articles in Law

Lawyers For White People?, Jessie Allen Jan 2021

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 ...


Kofifi/Covfefe: How The Costumes Of "Sophiatown" Bring 1950s South Africa To Western Massachusetts In 2020, Emma Hollows Jul 2020

Kofifi/Covfefe: How The Costumes Of "Sophiatown" Bring 1950s South Africa To Western Massachusetts In 2020, Emma Hollows

Masters Theses

This thesis paper reflects upon the costume design process taken by Emma Hollows to produce a realist production of the Junction Avenue Theatre Company’s musical Sophiatown at the Augusta Savage Gallery at the University of Massachusetts in May 2020. Sophiatown follows a household forcibly removed from their homes by the Native Resettlement Act of 1954 amid apartheid in South Africa. The paper discusses her attempts as a costume designer to strike a balance between replicating history and making artistic changes for theatre, while always striving to create believable characters.


The Expansive Reach Of Pretrial Detention, Paul Heaton Feb 2020

The Expansive Reach Of Pretrial Detention, Paul Heaton

Faculty Scholarship at Penn Law

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Jan 2020

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

Faculty Scholarship at Penn Law

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 ...


Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit Jan 2020

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies ...


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 ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

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 ...


What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray Jul 2019

What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray

Arkansas Law Review

The 200th anniversary of the 1819 Supreme Court decision McCulloch v. Maryland offers scholars a special opportunity to study the shortcomings of the federal The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as they were revealed by FEMA’s failures in Puerto Rico during and after Hurricane Maria. Under Article I, Section 8 of the Constitution, as it has been interpreted by McCulloch, a law passed by Congress must be necessary and proper for executing its powers. In light of the expansive capacities allotted for disaster relief under the Stafford Act, and the catastrophic failure of FEMA to ...


Social Activism Through Shareholder Activism, Lisa Fairfax Jul 2019

Social Activism Through Shareholder Activism, Lisa Fairfax

Faculty Scholarship at Penn Law

In 1952, the SEC altered the shareholder proposal rule to exclude proposals made “primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes.” The SEC did not reference civil rights activist James Peck or otherwise acknowledge that its actions were prompted by Peck’s 1951 shareholder proposal to Greyhound for desegregating seating. Instead, the SEC indicated that its change simply reflected a codification of a position the SEC staff had taken in 1945.

Today, the shareholder proposal rule has evolved, giving way to several amendments that now enable shareholders to submit proposals on the proxy ...


Jim Crow Credit, Mehrsa Baradaran May 2019

Jim Crow Credit, Mehrsa Baradaran

Faculty Scholarship

The New Deal created a separate and unequal credit market—high-interest, non-bank, installment lenders in black ghettos and low-cost, securitized, and revolving credit card market in the white suburbs. Organized protest against this racialized inequality was an essential but forgotten part of the civil rights movement. After protests and riots drew attention to the reality that the poor were paying more for essential consumer products than the wealthy, the nation’s policymakers began to pay attention. Congress held hearings and agencies, and academics issued reports examining the economic situation. These hearings led to new federal agencies and programs, executive actions ...


Covering And Identity Performance In Employment Discrimination Law, Megan Von Borstel Jan 2019

Covering And Identity Performance In Employment Discrimination Law, Megan Von Borstel

Washington University Jurisprudence Review

At a time when the law is transforming gay rights, the LGBTQ

community finds itself at the climax of its latest civil rights challenge:

federal employment non-discrimination protections. This Note addresses

the federal circuit split regarding whether Title VII’s prohibition against

sex discrimination includes a prohibition on the basis of sexual

orientation. By integrating the Seventh Circuit’s analysis in Hively v. Ivy

Tech Community College within the frameworks of intersectionality,

identity performance, and queer theory, this Note evaluates how an

evolving understanding of Title VII’s protections affect members of the

LGBTQ communities.


Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay Jan 2019

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

Faculty Scholarship

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 ...


Behind The Numbers: Conditions Of Schooling In Boston (1981), Marcy Murninghan Mar 2018

Behind The Numbers: Conditions Of Schooling In Boston (1981), Marcy Murninghan

New England Journal of Public Policy

This article includes portions of a report on the structure, governance, operations, and effectiveness of the Boston School Committee that was commissioned by the Boston Municipal Research Bureau in 1980. The passages provide an overview of the mandate, background, and recommendations, examining how a set of prominent professionals and citizens viewed the problem facing school department governance, including its isolation and the longstanding credibility gap fueled by patronage politics. It also looks at continued tensions between “equality” and “quality,” which occupied the heart of court-ordered desegregation; rising demands on a system that lacked the capacity to serve a broad array ...


Border Enforcement And Civil Rights Along The Texas-Mexico Border, Esther Reyes Jan 2018

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 ...


Bias In, Bias Out, Sandra G. Mayson Jan 2018

Bias In, Bias Out, Sandra G. Mayson

Faculty Scholarship at Penn Law

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 ...


Biosocial Criminology Versus The Constitution, Karen E. Balter Jan 2018

Biosocial Criminology Versus The Constitution, Karen E. Balter

Regis University Student Publications

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 ...


The Federal Rules Of Inmate Appeals, Catherine T. Struve Jan 2018

The Federal Rules Of Inmate Appeals, Catherine T. Struve

Faculty Scholarship at Penn Law

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 ...


The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist Jan 2018

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, thus violating ...


Genealogy Of The Concept Of "Hate Crime": The Cultural Implications Of Legal Innovation And Social Change, Roslyn Myers Sep 2017

Genealogy Of The Concept Of "Hate Crime": The Cultural Implications Of Legal Innovation And Social Change, Roslyn Myers

Dissertations, Theses, and Capstone Projects

The term "hate crime" is new to legislative and public discourse, as well as legal and social science scholarship. A decade after the concept of a "hate crime" was introduced in Congress, the 2009 Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act (HCPA), to punish criminal actors who target victims because of their characteristics (race, color ethnicity, sexual orientation, religion, gender, gender identity, or disability). Using relevant archival sources, this project uses genealogical qualitative methods to examine the interplay of cultural elements manifested in this provocative term, which reflect dominance and subjugation among social groups (In- and Out-Groups ...


Utilizing Title Vi As A Means To Eradicate Health Discrimination, Adrian D. Samuels, Mariah L. Cole Jul 2017

Utilizing Title Vi As A Means To Eradicate Health Discrimination, Adrian D. Samuels, Mariah L. Cole

Journal of Health Disparities Research and Practice

Health disparities among people of color are persistent and detrimental to the overall wellness of these groups. Discrimination in the provision of health care services is one of the primary causes of health disparities. Title VI of the Civil Rights Act of 1964’s availability as a tool to prevent discrimination and, in turn, disparities among these groups is underdocumented. The legislative intent of Title VI and the historical context of the law have been helpful in its use outside of the health care arena to prevent discrimination. This sheds light on the ways that the law can influence the ...


Leaving Behind Self-Righteousness: Using Mutual Respect And Compromise To Solve Emerging Conflicts Between Religious Liberty And Same-Sex Marriage, Benjamin Issa Apr 2017

Leaving Behind Self-Righteousness: Using Mutual Respect And Compromise To Solve Emerging Conflicts Between Religious Liberty And Same-Sex Marriage, Benjamin Issa

Brigham Young University Prelaw Review

This paper attempts to provide a reasonable framework for thinking about religious liberty issues following the Supreme Court's decision in Obergefell v. Hodges. Following the decision in that case, which requires states to wed same-sex couples, there has been a national debate about when - and if - religious business owners can discriminate based on sexual orientation. This issue pits religious liberty organizations against LGBT rights organizations, and leaves both sides feeling demonized and misunderstood. This paper advocates a more nuanced approach, and suggests that reasonable compromise is possible if we are willing to leave behind self-righteousness and instead engage in ...


Intersectionality And The Constitution Of Family Status, Serena Mayeri Jan 2017

Intersectionality And The Constitution Of Family Status, Serena Mayeri

Faculty Scholarship at Penn Law

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing ...


An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani Jan 2017

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

Faculty Scholarship at Penn Law

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context ...


Ending-Life Decisions: Some Disability Perspectives, Mary Crossley Jan 2017

Ending-Life Decisions: Some Disability Perspectives, Mary Crossley

Articles

In the forty years since Quinlan, disability has been present in the conversation within medicine, bioethics, and law about the acceptability of death-hastening medical decisions, but it has at times been viewed as an interloper, an uninvited guest to the party, or perhaps the guest whom the host was obliged to invite, but whose presence was not entirely welcomed. Notwithstanding some short-term reversals and counter-currents, the steady arc of end-of-life law during the past four decades has been towards liberalization of ending-life choices by and for patients who are severely compromised or near the end of their lives. During that ...


Sangar & Nasira, Sangar, Nasira, Tsos Jul 2016

Sangar & Nasira, Sangar, Nasira, Tsos

TSOS Interview Gallery

Sangar and his family are from Iran but are originally Turkish. In Iran they faced a psychological war and many problems that stemmed from discrimination. He points out how many are oppressed or discriminated against, but he and his family were singled out for their ethnicity. There was no hope for a bright future, and they decided to flee the country for the benefit of their children.

They fled to Greece through Turkey and had many issues with human traffickers, robbery, a treacherous journey across the sea, and problems in Moria refugee camp where his wife couldn’t get the ...


God Almighty Hisself: The Life And Legacy Of Dick Allen, Mitchell J. Nathanson Mar 2016

God Almighty Hisself: The Life And Legacy Of Dick Allen, Mitchell J. Nathanson

Mitchell J Nathanson

“What I saw…persuaded me that (he) was the victim of an innate and incurable disorder.  I might give alms to his body; but his body did not pain him; it was his soul that suffered, and his soul I could not reach.”
     -- Herman Melville, “Bartleby The Scrivener.”

Through the course of his major league career, Dick Allen was without doubt recognized for doing a lot of things.  He was the 1964 National League Rookie of the Year and the 1972 American League Most Valuable Player.  His 351 home runs are more than Hall of Famer Ron Santo and trail ...


Institutionalized Racism And The Death Penalty, Ashleigh Ellis May 2015

Institutionalized Racism And The Death Penalty, Ashleigh Ellis

Student Scholar Symposium Abstracts and Posters

Overtime, support for capital punishment has evolved. Compared to previous decades, support has changed amongst different variables such as: age, race, gender, and political perspective; therefore, today, these variables have changed the amount of support for it. For example, as of today, 6 states have repealed the death penalty with New Jersey being the first in 2007 to do so in 40 years. As memories of Jim Crow and the Civil Rights era have faded due to generational replacement, American society today still has this racial gap, however it is due to this racial resentment or symbolic resentment that the ...


Processing Disability, Jasmine E. Harris Jan 2015

Processing Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act ...


The R-Word: A Tribute To Derrick Bell, Kenneth B. Nunn Nov 2014

The R-Word: A Tribute To Derrick Bell, Kenneth B. Nunn

Kenneth B. Nunn

Racism has become the “R-word,” an allegation that is so outrageous that it cannot even be spoken in public, let alone seriously addressed. In this brief exploration, I propose that it is exactly because racism continues to loom large in American society that talking about it has become taboo. In other words, banning the “R-word” serves a political function. It masks the failure of American society to confront the existence of racism and do something about its effects. Derrick Bell's path breaking work can be used to show why the focus of race discourse has moved from debating over ...


From Intent To Effect: Richmond, Virginia, And The Protracted Struggle For Voting Rights, 1965–1977, Julian Maxwell Hayter Oct 2014

From Intent To Effect: Richmond, Virginia, And The Protracted Struggle For Voting Rights, 1965–1977, Julian Maxwell Hayter

Jepson School of Leadership Studies articles, book chapters and other publications

Twelve years after the ratification of the Voting Rights Act of 1965 [VRA], Richmond, Virginia elected a historic majority black city council. The 5-4 majority quickly appointed an African American lawyer named Henry Marsh, III to the mayoralty. Marsh, a nationally celebrated civil rights litigator, was not only the city’s first black mayor, but the council election of 1977 was also Richmond’s first since 1970. In 1972, a federal district court used the VRA’s preclearance clause in Section 5 to place a moratorium on council contests. This moratorium lasted until the Supreme Court and the Department of ...