Law Commons^™

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster

Faculty Scholarship

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …

Smart Surfaces, Smart Cities: Reducing Heat And Promoting Equity In Urban Areas, Hillary Aidun

Sabin Center for Climate Change Law

The summer of 2021 underscored that we are all affected by climate change impacts, whether in the form of heatwaves, fires, or extreme flooding. But some Americans are far more affected than others. Urban centers are hotter than rural areas due to urban heat island effect, a phenomenon caused by pavement, buildings, and other surfaces in cities that absorb and retain heat. In the United States, urban heat island effect results in a temperature difference of up to 7. degrees between cities and their surrounding rural areas. Moreover, within cities, extreme heat disproportionately harms communities of color and low-income communities. …

The Climate Leadership And Community Protection Act’S Environmental Justice Promise, Hillary Aidun, Julia Li, Antonia Pereira

Sabin Center for Climate Change Law

In 2019, New York State Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (“CLCPA”) into law. The CLCPA was passed with the objective of addressing climate change and minimizing the adverse impacts on the “economic well-being, public health, natural resources, and the environment of New York.” S. 6599, 2019-2020 Sen., Reg. Sess. § 1 (N.Y. 2019). The CLCPA seeks to meet these objectives by reducing statewide greenhouse gas emissions, scaling up renewable energy to avoid further climate change, and improving the resiliency of the state in order to address unavoidable climate change impacts. Id. The law created …

Advancing Racial Justice And Human Rights: Rights-Based Strategies For The Current Era, Human Rights Institute

Human Rights Institute

On June 1, 2018, the Human Rights Institute convened its 15th annual CLE Symposium on Human Rights in the United States, a signature event of the Human Rights Institute’s Bringing Human Rights Lawyers’ Network. The day-long event brought together more than 150 leading U.S. lawyers, activists, and academics, along with federal and local government representatives to share strategies to advance racial justice within a domestic and global context increasingly hostile to human rights.

This report highlights key takeaways and themes from the Symposium, drawing from speakers’ remarks and their advocacy. It also serves as a basic human rights primer, describing …

Police Contact And The Legal Socialization Of Urban Teens, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Contemporary American policing has routinized involuntary police contacts with young people through frequent, sometimes intrusive investigative stops. Personal experience with the police has the potential to corrode adolescents’ relationships with law and skew law-related behaviors. We use the Fragile Families and Child Wellbeing Study to estimate how adolescents’ experiences with the police shape their legal socialization. We find that both personal and vicarious police contact are associated with increased legal cynicism. Associations are present across racial groups and are not explained by teens’ behaviors, school settings, or family backgrounds. Legal cynicism is amplified in teens reporting intrusive contact but diminished …

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Unmarried And Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, And Communities Of Color, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

Increasingly, the long-standing national commitment to equality is being undermined by competing claims to religious liberty. Advocates, politicians, and the media have all documented the “wave of religious-freedom bills” introduced in recent years, “almost all inspired by objections to homosexuality and same-sex marriage.” In the 2015-2016 legislative session, dozens of bills were introduced at the state and federal levels that would have created exemptions to otherwise generally applicable laws, including antidiscrimination protections, for persons whose sincerely held religious beliefs conflict with those laws. The most extreme version of these bills would allow religious objectors to engage in a wide range …

Human Rights Recommendations To The United States: A Desk Reference For State And Local Human Rights Agencies, Human Rights Institute

Human Rights Institute

State and local human rights and human relations agencies play a pivotal role in promoting and protecting human rights across the country. Indeed, state and local agencies work on a daily basis to foster equality and eradicate discrimination. Through education, monitoring, and addressing human rights issues, they ensure the ability of the United States to make human rights a reality in local communities.

To assist state and local agencies in doing this work, this resource distills the core human rights principles that fall under the jurisdiction of many state and local agencies, and offers guidance to strengthen the culture of …

The Need For Comprehensive Federal Outreach And Mechanisms To Support State And Local Implementation Of The Convention, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

Compliance with the Convention Against Torture (“CAT”) requires effective federal coordination with, and education of, state and local governments. In ratifying the CAT, the United States indicated that state and local governments share authority to implement the treaty. This includes the over 150 state and local civil and human rights agencies that enforce federal, state and local human and civil rights laws and/or conduct research, training and education, and issue policy recommendations within the United States (“Human Rights Agencies”). It also includes the full array of state and local officials with decision-making and enforcement authority, including governors, state attorneys general, …

Columbia Law School Human Rights Institute Joins Delegation At United Nations For Review Of U.S. Human Rights Record, Human Rights Institute

Human Rights Institute

New York, August 11, 2014 – This week, Columbia Law School’s Human Rights Institute (HRI) will travel to Geneva, Switzerland this week to participate in a significant review of the United States’ human rights record by the United Nations.

Equal Access To Justice: Ensuring Meaningful Access To Counsel In Civil Cases, Including Immigration Proceedings, Human Rights Institute, Program On Human Rights And The Global Economy

Human Rights Institute

Only a small fraction of the legal problems experienced by low‐income and poor people living in the United States — less than one in five — are addressed with the assistance of legal representation. Many people who are low‐income and poor in the United States cannot afford legal representation to protect their rights when facing a crisis such as eviction, foreclosure, domestic violence, workplace discrimination, termination of subsistence income or medical assistance, loss of child custody, or deportation.

There is no federal constitutional right to counsel in civil cases, including in immigration proceedings. On the contrary, the Supreme Court has …

The Need For Effective Federal Outreach And Mechanisms To Coordinate And Support Federal, State And Local Implementation Of The Convention, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

As this Committee has consistently recognized, compliance with the CERD requires effective coordination between federal, state, and local governments. In ratifying the CERD, the United States indicated that state and local governments share authority to implement the treaty. This includes the over 150 state and local civil and human rights agencies that enforce federal, state and local human and civil rights laws and/or conduct research, training and education, and issue policy recommendations within the United States (“Human Rights Agencies”). It also encompasses the full array of state and local officials with decision-making and enforcement authority, including governors, state attorneys general, …

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and subsequent …

Bringing Human Rights Home: How State And Local Governments Can Use Human Rights To Advance Local Policy, Human Rights Institute

Human Rights Institute

State and local governments play an essential role in promoting and protecting human rights. Within the United States, agencies and officials at the municipal, city, county and state levels can help fulfill human rights by ensuring dignity, equality and opportunity for everyone in their jurisdiction.

Recognizing the value of human rights, state and local agencies and officials across the United States are incorporating international human rights standards in their daily work. As illustrated by examples throughout this report, integrating human rights into local law, policy and practice can enhance government decision-making and respond directly to local needs. It also allows …

Affirmative Action In Higher Education Symposium: Comment, Lee C. Bollinger

Faculty Scholarship

This issue – affirmative action in higher education – is an issue of enormous significance for the country. So I don't for a second treat this as just another conversation about an important legal question. I think this is one of those issues that define the country.

I'll tell you what I did as President of the University of Michigan, and in the course of that I'll try to explain the ways in which we formulated the cases that went to the Supreme Court and resulted in very important clarifications to the Fourteenth Amendment and affirmative action. Then I want …

Using Human Rights Mechanisms Of The United Nations To Advance Economic Justice, Risa E. Kaufman, Joann Kamuf Ward

Human Rights Institute

As a growing number of social justice lawyers employ human rights standards and strategies to advocate for their clients. human rights mechanisms of the United Nations have become a promising way for lawyers to work toward economic justice. These mechanisms are not only an alternative to traditional litigation and administrative advocacy but also unique opportunities for collaboration among U.S. civil society groups and engagement with policymakers. Because they are grounded in international human 1ights norms. human rights mechanisms have the potential to deal with social and economic issues beyond the reach of traditional domestic protections. By strategically using these mechanisms. …

The Last Plank: Rethinking Public And Private Power To Advance Fair Housing, Olatunde C.A. Johnson

Faculty Scholarship

The persistence of housing discrimination more than forty years after the passage of the federal Fair Housing Act (FHA) of 1968 is among the most intractable civil rights puzzle. For the most part, this puzzle is not doctrinal: the Supreme Court has interpreted the FHA only a handful of times over the last two decades – a marked contrast to frequent doctrinal contestations over the statutory scope and constitutionality of federal laws governing employment discrimination and voting rights. Instead, the central puzzle is the inefficacy of the FHA's enforcement regime given that, in formal terms, the regime is the strongest …

Human Rights And Domestic Violence: An Advocacy Manual, Human Rights Clinic

Human Rights Institute

Though international law is traditionally called “the law of nations,” it governs far more than relations between the countries of the world. International human rights law pushes the boundaries of State responsibility and allows individuals to directly demand accountability for both governmental action and inaction that violates basic human rights. International human rights treaties declare the minimum standards by which States (i.e. nation-states, or countries) are expected to comply. The theme of the 2010 Fourteenth Annual Domestic Violence Conference at Fordham Law School, “Expanding Our Vision: Human Rights, Victims’ Rights, and Approaches to Diverse Families,” for which this manual was …

The Road To Rights: Establishing A Domestic Human Rights Institution In The United States, Leadership Conference Education Fund, Human Rights Institute

Human Rights Institute

While human rights are often discussed as international standards, they are realized first and foremost at home. Respect for human rights is a domestic endeavor — the promotion, protection and fulfillment of these rights falls to national and local governments, not to international bodies. Because the front line of human rights is domestic, full realization of these rights requires coordination and dialogue between civil society, national policy-making bodies and local institutions.

U.S. human rights advocates have continually emphasized that “human rights begin at home,” and it is only when the full spectrum of rights are recognized and protected in local …

The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson

Faculty Scholarship

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a …

The Sit-Ins And The Failed State Action Revolution, Christopher W. Schmidt

Studio for Law and Culture

This article revises the traditional account of why the Supreme Court, when faced in the early 1960s with a series of cases arising out of the lunch counter sit-in movement, refused to hold racial discrimination in public accommodations unconstitutional. These cases are the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. And they did so despite a transformation in popular opinion …

Blood Quantum And Equal Protection, Rose Cuison Villazor

Studio for Law and Culture

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial/political paradigm. This dichotomy may be traced to Morton v. Mancari and more recently to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of Native American tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right to self-government of tribes. Rice v. Cayetano crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That …

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of broken windows policing in 1994 – nicely documented in this issue in Andrew Golub, Bruce Johnson, and Eloise Dunlap's article (2007) – is almost enough to make an outside observer ask: Who thought of this idea in the first place? And what were they smoking?

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, …

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

Police Patrol, Judicial Integrity, And The Limits Of Judicial Control, Debra A. Livingston

Faculty Scholarship

I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police …

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton …

Reel Time/Real Justice, Kimberlé W. Crenshaw

Faculty Scholarship

Like the Anita Hill/Clarence Thomas hearings a few months before, the Rodney King beating, the acquittal of the Los Angeles police officers who "restrained" him and the subsequent civil unrest in Los Angeles flashed Race across the national consciousness and the gaze of American culture momentarily froze there. Pieces of everyday racial dynamics briefly seemed clear, then faded from view, replaced by presidential politics and natural disasters.

This Essay examines in more depth what was exposed during the momentary national focus on Rodney King. Two main events – the acquittal of the police officers who beat King and the civil …

The Tolerant Society: A Response To Critics, Lee C. Bollinger

Faculty Scholarship

In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less …

Militants, Moderates, And Social Change, Michael I. Sovern

Faculty Scholarship

The thesis of this paper is a simple generalization: To the extent that social protest draws attention to its form rather than to the grievance it seeks to redress, it is likely to be unproductive. I add a quick qualification. In offering this generalization, I am assuming that the protester is genuine in seeking to redress one or more grievances and that he is not using the grievance as a subterfuge to pick a fight. If the purpose of the protest is in fact to provoke a repressive response, then, of course, my generalization is inapplicable.

We obviously have a …