Law Commons^™

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

Conflict And Race In Literature & Law. The Case Of Americanah, Emanuela Ignatoiu Sora

Comparative Woman

In Americanah, the 2013 novel by Chimamanda Ngozi Adichie, there is a scene when one of the characters, Laura, speaks of her Ugandan classmate who did not get along with an African-American colleague. Laura is surprised as, for her, all persons of color are similar, with no understanding for their differences in background, personal stories and experiences. The novel depicts and critiques this very categorization of race, which flattens differences, conflating groups and individuals who might share very little, if anything. For a long time, law (with its stipulations, precedents and rulings) has operated in a similar manner, disengaging …

Power V. Power: Federal Pattern-Or-Practice Enforcement Actions Applied To Local Prosecutors, Thomas P. Hogan

Maine Law Review

One of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, …

Reproductive Justice At Work: Employment Law After Dobbs V. Jackson Women’S Health Organization, Laura T. Kessler

Utah Law Faculty Scholarship

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision's effects on health, economic …

Unshielded: How The Police Can Become Touchable, Brandon Hasbrouck

Scholarly Articles

This Review proceeds in three Parts. First, Part I examines Shielded’s text, highlighting Schwartz’s analysis of the problem of unaccountable police, the many barriers to holding police accountable, and her proposed solutions. Part II then critically examines Schwartz’s work, examining pieces of the problem she left undiscussed and the relative shortcomings of her discussion of possible solutions. Finally, Part III takes an abolitionist approach, delving into potential nonreformist reforms and the solution of full abolition, as well as examining the most significant objection to abolitionist approaches: the problem of violence.

El Repudio Y La Aversión A Lo Étnico, Confrontando A La Discriminación Racial En México, Roxana Rosas Fregosa

American University International Law Review

This article examines the concepts of ethnicity (ethnic), racism and the legal principle of equality and non-discrimination with a focus on the historical, social, political and legal factors that are linked to contempt and aversion to ethnicity.

Voting Rights: Litigating Materiality Under The Civil Rights Act, Michael T. Morley

Scholarly Publications

In recent years, plaintiffs have frequently invoked the Civil Rights Act's Materiality Provision as a basis for challenging state election laws. The Provision prevents states from denying a person's right to vote based on certain types of immaterial errors or omissions in his voter registration application or other election related filings. Historically, the Provision played an important role in combatting Jim Crow measures used to systematically disenfranchise African Americans. Today, it continues to protect voters from disenfranchisement based on minor, hypertechnical, picayune mistakes unrelated to their eligibility to vote. Some courts, however, have misinterpreted the Provision to prevent states from …

Regulating The Pains Of Racial Discrimination, Alice Abrokwa

Saint Louis University Journal of Health Law & Policy

This essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who …

Reflections On Arlington Heights: Fifty Years Of Exclusionary Zoning Litigation And Beyond, Robert G. Schwemm

Law Faculty Scholarly Articles

Fifty years ago, when I was two years out of law school, I began work on a case—Metropolitan Housing Development Corp. v. Village of Arlington Heights—that was destined to take on epic proportions in the housing discrimination field. The case started with a complaint filed in 1972, shortly before I joined the plaintiffs’ legal team, and was not finally resolved until 1980, after I’d left that team to become a law professor. During the seven years that I worked on the Arlington Heights case, it produced a major Supreme Court decision on standing and the Fourteenth Amendment’s Equal Protection Clause3 …

The Success Of Pre-Enforcement Challenges To Antidiscrimination Laws, Alexander Gouzoules

Faculty Publications

Formally, judicial analysis of a challenged statute's validity should be consistent, regardless of the challenge's pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute's validity should turn on its content and effect-not on whether it was challenged before or after enforcement.

This Article challenges that assumption, arguing that pre-enforcement challengers …

The Procedural Justice Industrial Complex, Shawn E. Fields

Indiana Law Journal

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

Fulfilling The Promise Of The Housing Choice Voucher Program: Blind Review As An Enforcement Method For Source-Of-Income Antidiscrimination Laws, Zachary Wakefield

Indiana Journal of Law and Social Equality

The housing choice voucher program (HCV) is one that provides subsidies to very low-income individuals. These subsidies allow recipients of the vouchers to pay thirty percent of their income out of pocket towards their rent, with the difference being paid by the subsidy from the government directly to a landlord. Although the program itself is federal, it is administered by the states at the local level. As with most housing in the United States, the Fair Housing Act protects HCV recipients from discrimination based on “race, color, religion, sex, familial status, or national origin,” regardless of the state where the …

Renewing Study Into The Oldest Hatred: Introduction To The Law Vs. Antisemitism Symposium, David Schraub

Lewis & Clark Law Review

This short essay provides an introduction to the Lewis & Clark Law Review's "Law vs. Antisemitism" symposium, which grew out of the conference by the same name hosted at Lewis & Clark in the spring of 2023. In addition to overviewing the contributions to the symposium, the introduction provides some background on the relative paucity of legal scholarship that has addressed antisemitism, and the importance of including antisemitism in the otherwise robust legal academic conversation occurring around other forms of oppression and social discrimination.

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Library Crime, Michael L. Smith

Faculty Articles

Libraries are often idealized as one of the few remaining safe, public spaces. Beyond providing books and internet access, they are a source of shelter, warmth, restrooms, and a place to stay without a reason for society's most vulnerable. But libraries are also at the core of a network of criminal laws that punish a wide array of library-related conduct. Steal a book? Write in or otherwise damage materials? Fail to return an item? Hide a book in a manner that looks like you are about to steal it? Many states criminalize these activities, often punishing them with potential jail …

Beyond Discrimination: Market Humiliation And Private Law, Hila Keren

University of Colorado Law Review

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …

Investigating Appraisal Discrimination, Carol Brown

Law Faculty Publications

Over the past five years, the question of whether real estate appraisers systematically undervalue homes purchased or occupied by Black and Hispanic households has emerged as a significant civil rights issue. Major media have highlighted some instances where the same home received a dramatically higher appraisal when the appraiser believed the client was white rather than Black. Some social scientists have argued that appraisal discrimination is the root cause of the lower housing prices that prevail in many urban minority neighborhoods— and thus an important source of the racial “wealth gap.” Candidate Biden expressed strong concern about the issue during …

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

Students For Fair Admissions Sends Us Bakke To The Drawing Board For Race- Conscious Affiffirmative Action In Higher Education, Monica Teixeira De Sousa

Law Faculty Scholarship

No abstract provided.

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues that persecution based on sexual orientation constitutes a crime against humanity under international law. Unlike other scholarship that has focused on the definition of crimes against humanity in the 1998 Rome Statute for the International Criminal Court—which does not explicitly enumerate “sexual orientation” as a protected classification—this Article looks to customary international law made up by the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107 states enacted laws or revised existing laws decriminalizing sexual orientation and/or categorizing sexual orientation as a protected classification from discrimination. This is in addition to …

Autism And Access To Healthcare, Amanda Forbes

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Transforming Legal Sex, Noa Ben-Asher

Faculty Publications

Legal sex in the United States is undergoing a dramatic transformation. By "legal sex" this Article refers to various instances in which legal authorities engage in defining an individual's sex, either directly or indirectly. This Article begins by charting this transformation and then draws on this history to rethink the current political moment.

Until around the mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being …

Gender-Based Violence And Harassment At Sea, Desiree Leclercq

Scholarly Works

This Symposium contribution assesses the ability of international law to evolve to offer essential protections for workers in an increasingly globalized world. It focuses on protections for women seafarers, specifically around gender-based violence and harassment on board vessels. Even though it is the world’s oldest transnational sector, seafaring remains overwhelmingly male-dominated. Consequently, international law was not initially conceived with women seafarers in mind. Now that women have broken into the maritime profession, they count on international law to evolve in kind. Notwithstanding, they continue to face sexist, if not violent, workplaces, and report high incidents of gender-based violence and harassment …

Justice Delayed Is Justice Denied: Moving Forward With A New Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations …

Less Discriminatory Algorithms, Pauline Kim, Emily Black, John Logan Koepke, Solon Barocas, Mingwei Hsu

Scholarship@WashULaw

Entities that use algorithmic systems in traditional civil rights domains like housing, employment, and credit should have a duty to search for and implement less discriminatory algorithms (LDAs). Why? Work in computer science has established that, contrary to conventional wisdom, for a given prediction problem there are almost always multiple possible models with equivalent performance—a phenomenon termed model multiplicity. Critically for our purposes, different models of equivalent performance can produce different predictions for the same individual, and, in aggregate, exhibit different levels of impacts across demographic groups. As a result, when an algorithmic system displays a disparate impact, model multiplicity …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolution, Joni Hersch, Blair D. Bullock

Vanderbilt Law School Faculty Publications

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade

Scholarly Works

States increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens …

Labor Strife And Peace, Desiree Leclercq

Scholarly Works

This Article examines a significant yet underexplored feature in the decline of worker power: The gradual erosion of protections under the National Labor Relations Act (NLRA) for workplace protest by rank-and-file, nonunion workers. Rather than protect their protest as necessary to galvanize workplace solidarity and organizing, current labor doctrine offers employers various opportunities to fire them. Focusing on nonunion workers standing up to management, this Article offers three key insights into U.S. labor law. First, it draws on social movements to confirm strife’s vital but uneasy role in workplace solidarity. Second, it unearths the NLRA’s original intention to protect the …

Politicizing Antisemitism Amidst Today’S Educational Culture Wars, Lili Levi

Lewis & Clark Law Review

The traditional narrative of American Jewry emphasizes American exceptionalism with respect to antisemitism. But there have been clear signs of a resurgence of public antisemitism in the United States even before the massive rise in antisemitic expression and incidents associated with the Israel-Hamas war of fall 2023.

One of the notable aspects of the rise and normalization of antisemitic expression is the deployment of antisemitism as a political tool. For example, in addition to Democrats and Republicans accusing each other of complicity in antisemitism, both federal policy since the Trump era and state antiantisemitism legislation have targeted campus antisemitism in …

Racial Preferences In Employment After Students For Fair Admissions V. Harvard, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.