Law Commons^™

The State Secrets Privilege: An Institutional Process Approach, Alexandra B. Dakich

Northwestern University Law Review

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert …

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Who’S Afraid Of Bob Jones?: 'Fundamental National Public Policy' And Critical Race Theory In A Delicate Democracy, Lynn D. Lu

Publications and Research

In Summer of 2021, Republican legislators across the United States introduced a host of bills to prohibit government funding for schools or agencies that teach critical race theory (“CRT”), described by the American Association of Law Schools not as a single doctrine but a set of “frameworks” to “explain and illustrate how structural racism produces racial inequity within our social, economic, political, legal, and educational systems[,] even absent individual racist intent.” Characterizing such an explicitly race-conscious analysis of legal and social institutions as “divisive,” opponents of CRT, such as former Vice President Mike Pence, labeled it “nothing short of state-sponsored …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian

William & Mary Law Review

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Foreseeably Uncertain: The (In)Ability Of School Officials To Reasonably Foresee Substantial Disruption To The School Environment, Maggie Geren

Arkansas Law Review

“Ms. Sarah Phelps is the worst teacher I’ve ever met.” While the name of this Facebook page is perhaps a bit harsh, most would hardly view it as grounds for school suspension. The very heart of the First Amendment, and indeed the notion for which our Framers drafted it, is the right of citizens to “think, speak, write and worship as they wish, not as the Government commands.” Without this fundamental freedom—one that has persevered despite countless efforts to narrow its reach—the American people would live in constant fear of backlash and suppression for merely voicing their opinions.

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …

Equality Is A Brokered Idea, Robert L. Tsai

Faculty Scholarship

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

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 …

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Aspirations Of Objectivity: Systemic Illusions Of Justice In The Biased Courtroom, Meagan B. Roderique

Scripps Senior Theses

Given the ever-growing body of evidence surrounding implicit bias in and beyond the institution of the law, there is an equally growing need for the law to respond to the accurate science of prejudice in its aspiration to objective practice and just decision-making. Examined herein are the existing legal conceptualizations of implicit bias as utilized in the courtroom; implicit bias as peripheral to law and implicit bias as effectual in law, but not without active resolution. These views and the interventional methods, materials, and procedures they inspire are widely employed to appreciably “un-bias” legal actors and civic participants; however, without …

Sb Lawyer, Courtroom Architecture And Human Beings.Pdf, Robert M. Sanger

Robert M. Sanger

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's …

Democracy's Handmaid, Robert L. Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Closing The Gap Between What Is Lawful And What Is Right In Police Use Of Force Jurisprudence By Making Police Departments More Democratic Institutions, Jonathan M. Smith

Michigan Journal of Race and Law

On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against …

Past As Prologue In The Affirmative Action Jurisprudence Of The Supreme Court: Reflections On Fisher V. University Of Texas At Austin And Schuette V. Coalition To Defend Affirmative Action, David L. Gregory, Sarah Mannix

St. John's Law Review

(Excerpt)

This Article critically analyzes the dimensions and likely ramifications of Fisher and Schuette. The principle of pragmatic political proportionality eschews the wholly ideological extremist views that would either utterly vitiate affirmative action or deeply embed it as a substantially obsolete elitist residue of endless recalibrating. Instead, this Article subscribes to Lincolnian practical wisdom supplemented with a healthy dose of plain common sense. Enlightened political leadership should seek achievable pragmatic proportionality as the guiding principle controlling access to public institutions of higher education and, consequently, entry into the professions.

Section 1983 Custom Claims And The Code Of Silence, Myriam Gilles

Touro Law Review

No abstract provided.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

Faculty Scholarship at Penn Carey Law

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …