Law Commons^™

The Federal Government's Role In Local Policing, Farhang Heydari, Barry Friedman, Rachel Harmon

Vanderbilt Law School Faculty Publications

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use offorce, racial discrimination, and the …

Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig

Faculty Scholarship

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"⁵ In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.⁶ After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" …

Hb277/Sb941: Sentencing Disparities In Tennessee, Theresa Collins, Sloane Crockett, Amani Devault-Smith, Maggie Ask, Natalie Schilling

Belmont University Research Symposium (BURS)

No abstract provided.

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

Scholarly Works

This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

Race And The Covid-19 Eviction And Housing Crisis, Bradey Camille Baltz

Arkansas Law Notes

Historical and present discriminatory housing, land use, property, and criminal policies and laws have contributed to an inaccessibility of homeownership and wealth accumulation for people of color in the United States. “People of color rent at higher rates than white people,” and thus, face a higher risk of eviction. People of color are also overrepresented in jobs most affected by the COVID-19 pandemic, like the restaurant and hotel industries. As compared to white workers, Black and Latinx Americans are less likely to have access to paid sick leave and family leave, forcing them to choose to go to work when …

Racial Discrimination In Life Insurance, William G. Gale, Kyle D. Logue, Nora Cahill, Rachel Gu, Swati Joshi

Law & Economics Working Papers

We examine the historical and statistical relationship between race and life insurance. Life insurance can play a central role in households’ financial security. Race has played an important and changing role in the provision of life insurance in the U.S. from slave insurance before the Civil War, to “Scientific Racism” continuing into the 20th century, to policies that do not explicitly mention race in recent decades. In empirical work using new data, we confirm earlier work showing that Black individuals have higher life insurance coverage rates than white individuals, controlling for observable characteristics. We find no difference in the likelihood …

Reframing Hate, Lu-In Wang

Articles

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

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 …

Race Belongs In Week One Of Lrw, Beth H. Wilensky

Articles

I talk to my 1Ls about race and the law in their first week of law school. In doing so, I have discovered that discussing race helps me introduce foundational concepts about legal writing and law school that we will return to throughout the year. That is partly because race is relevant to nearly every topic law school touches on. But it is also because race is present in—and often conspicuous in its absence from—court opinions in ways that provide rich fodder for discussing how to approach law school. That topic interests all students—even those who might be skeptical about …

Pandemic Surveillance Discrimination, Christian Sundquist

Articles

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

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 …

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

Articles

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.' After decades of attempting to eliminate the requirement, conservative justices …

Association Between Racial Discrimination And Health‐Related Quality Of Life And The Impact Of Social Relationships, Sze Yan Liu, Genevieve Bergeron, Nneka Lundy De La Cruz, L. Hannah Gould, Amber Levanon Seligson

Department of Public Health Scholarship and Creative Works

Purpose: Interpersonal racial discrimination is associated with poor health. Social relationships may moderate the impact of discrimination and represent modifiable behaviors that can be targeted by public health interventions. We described citywide associations between self-reported racial discrimination and health-related quality of life among the overall New York City (NYC) adult residential population and by four main race/ethnicity groups and explored whether social relationships moderated health effects of discrimination.

Methods: We analyzed cross-sectional survey data from 2335 adults weighted to be representative of the NYC population. We measured exposures to lifetime interpersonal racial discrimination in nine domains using a modifed version …

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

Articles

No abstract provided.

The Blues And The Rule Of Law: Musical Expressions Of The Failure Of Justice, David Pimentel

Articles

No abstract provided.

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …

Comments On The Preliminary Framework For Equitable Allocation Of Covid-19 Vaccine, Ana Santos Rutschman, Julia Barnes-Weise, Robert Gatter, Timothy L. Wiemken

All Faculty Scholarship

On September 1, 2020 the National Academies released a draft framework for Equitable Allocation of a COVID-19 Vaccine. In this response, we analyze the proposed framework and highlight several areas.

Among the proposed changes, we highlight the need for the following interventions. The final framework for distribution of COVID-19 vaccines should give a higher priority to populations made most vulnerable by the social determinants of health. It should incorporate more geography-based approaches in at least some of the four proposed phases of vaccine distribution. It should address the possibility of a vaccine being made available through an emergency use authorization …

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 …

The Criminal Law Docket: A Term Of Modest Changes, Alan Raphael

Faculty Publications & Other Works

No abstract provided.

Human Rights Racism, Anna Spain Bradley

Publications

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

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 …

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

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, …

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 …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb

Articles

No abstract provided.