Law Commons^™

􏰀Enough􏰁S Enough􏰂: Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

American Indian Law Journal

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

Human Rights, Economic Justice And U.S. Exceptionalism, Natasha Lycia Ora Bannan

Pace International Law Review

On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.

Firearms Law Workshop Mini-Symposium, Part Iii: Framing The Second Amendment: Gun Rights, Civil Rights, And Civil Liberties, Timothy Zick

Timothy Zick

No abstract provided.

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, …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

William & Mary Law Review

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

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 …

Firearms Law Workshop Mini-Symposium, Part Iii: Framing The Second Amendment: Gun Rights, Civil Rights, And Civil Liberties, Timothy Zick

Popular Media

No abstract provided.

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

Joaquin Ávila: America At Its Best, Luis Ricardo Fraga

Seattle Journal for Social Justice

No abstract provided.

Joaquin Ávila: Voting Rights Gladiator, Barbara Y. Philips

Seattle Journal for Social Justice

No abstract provided.

Joaquin – The Congenital Warrior, Tayyab Mahmud

Seattle Journal for Social Justice

No abstract provided.

Some Thoughts On Joaquin Ávila, Bill Tamayo

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.

Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Stephen Rushin

No abstract provided.

De-Policing, Stephen Rushin, Griffin Sims Edwards

Stephen Rushin

Critics have long claimed that when the law regulates police behavior it inadvertently reduces officer aggressiveness, thereby increasing crime. This hypothesis has taken on new significance in recent years as prominent politicians and law enforcement leaders have argued that increased oversight of police officers in the wake of the events in Ferguson, Missouri has led to an increase in national crime rates. Using a panel of American law enforcement agencies and difference-in-difference regression analyses, this Article tests whether the introduction of public scrutiny or external regulation is associated with changes in crime rates. To do this, this Article relies on …

From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin

Stephen Rushin

The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or localities, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation's history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. …

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 provide …

Social Activism Through Shareholder Activism, Lisa Fairfax

All Faculty Scholarship

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 statement …

The Civil Rights Legacy Of Fr. Theodore M. Hesburgh, C.S.C., Jennifer Mason Mcaward

Jennifer Mason McAward

This Speech will discuss Fr. Hesburgh's advocacy on these core civil rights issues-education, employment, housing, and voting rights-and how his work changed the face of this country. The story of Fr. Hesburgh's civil rights advocacy is a key to understanding how he emerged-in the words of Vice President Biden-as "one of the most powerful unelected officials this nation has ever seen."

Bias In, Bias Out, Sandra G. Mason

AI-DR Collection

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 impact. 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 …

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Marriage Equality And A Lawyer's Role In The Emergence Of "New" Rights, Daniel J. Canon

Indiana Journal of Law and Social Equality

The last few decades have seen a dramatic change in the way in which Americans view LGBT rights, and the right to same-sex marriage in particular. In 1972, the Supreme Court issued its first opinion on same-sex marriage. In sharp contrast with Obergefell v. Hodges, which established the constitutional right to marriage equality in 2015, the case of Baker v. Nelson held in one sentence that the idea that such a right might exist was not even worth discussing. What happened in the intervening forty years to change the outcome so profoundly? And how can attorneys seek to replicate …

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …