Law Commons^™

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Faculty Articles

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren L. Hutchinson

Faculty Articles

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform liti­gation a judicial relic. Part II examines the historical development of in­stitutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post­-Brown era and contrasts those cases with Judge Sanders's rulings on the subject. In …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …