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A Critical Race Theory Analysis Of Critical Race Theory Bans, Caroline Mala Corbin

Articles

A majority of state legislatures have introduced bills prohibiting public schools from teaching certain "divisive concepts" attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that …

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

Having Fun While Learning: Pedagogical Techniques For Teaching Contract Drafting, Robin Boyle

Faculty Publications

(Excerpt)

Welcome everyone. Thank you very much for coming. It’s so exciting that we’re all together. I was looking forward to this conference. I’m Robin Boyle and I haven’t been here in a long time, unfortunately. So, it’s wonderful to come back and to see all of you.

My foray into contract drafting began about twenty years ago, when I started teaching Drafting Litigation Documents and Contracts (3 credits), which had a contract drafting component. The school also created a standalone Contract Drafting course (2 credits). The books that I’ve been using over the years have been very helpful. I …

Felix Frankfurter, Collector Of People, John Q. Barrett

Faculty Publications

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

Criminal Courteaucracy, Evelyn Malavé

Faculty Publications

Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, literature on criminal courts has almost exclusively focused on judges, prosecutors, and defense attorneys, and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized set of actors: criminal-court administrators.

Through an in-depth case …

Outside The Margins: Journal Alternatives For Professional Skill And Identity Development, Eric W. Shannon

Faculty Publications

(Excerpt)

Every summer I hear from students who did not receive an offer to join their preferred journal—or sometimes any journal at all. Overall student interest in journal staff member positions generally outnumbers available spots in publications. Still other students opt out of participating in the writing competition entirely because of significant out-of-school responsibilities or other constraints on their time.

The appeal of journal membership is in many ways self-evident. It affords the space, time, and resources to sharpen legal research and writing skills. It can facilitate exploration of subject-matter areas of interest and help staff members decide on an …

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva E. Subotnik

Faculty Publications

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work." It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

Current Developments In Tax Malpractice: Basics And Beyond, Jacob L. Todres

Faculty Publications

It was always assumed that “tax malpractice” referred to a situation in which an error occurred with respect to some tax provision or in a tax-related administrative or legal proceeding. However, several recent cases have expanded this thinking, introducing the possibility that tax malpractice may also occur where damages include an increase in taxes—irrespective of whether there was an error that directly involved tax law. Beginning with a discussion of the evolving definition of that term as seen in the New York cases of Serino v. Lipper and Bloostein v. Morrison Cohen LLP and whether these cases may have returned …

Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans

Faculty Publications

(Excerpt)

In the spring of 2023, the New York Times published a piece entitled “How a Few Stories of Regret Fuel the Push to Restrict Gender Transition Care.” It features Chloe Cole, who lived as a transgender boy for several years but now identifies as a cisgender woman. Cole has become a poster child for the idea that gender-affirming care (“GAC”) for minors may lead to later regret and should therefore be restricted by the state. Cole, who has been travelling the country as part of a conservative lawmaking effort to ban GAC, received a standing ovation after Florida Governor …

An Empirical Evaluation Of The Trademark Modernization Act, Jeremy N. Sheff

Faculty Publications

The Trademark Modernization Act of 2020 (TMA) created two new forms of administrative proceedings designed to clear spurious trademarks from the federal register. Congress’s hope for these new proceedings was that they would “respond to concerns that registrations persist on the trademark register despite a registrant not having made proper use of the mark covered by the registration” by “allow[ing] for more efficient, and less costly and time consuming” means of removing them. This Article subjects that policy to empirical examination, disclosing and analyzing a newly constructed dataset covering the dockets of all TMA proceedings (and petitions for proceedings) to …

“The Times They Are A Changin’”: Generational Comparisons Of The Civil Rights Movement With The Current-Day Climate Movement, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

Bob Dylan’s famous song lyric, capturing the spirit of the 1960s, is just as apropos today: “The times they are a changin’” (1964). The civil rights movement changed history by securing legislation and court decisions advancing the constitutional rights of black people (Dalton 2008, 7). The movement took flight at a time when the Baby Boomer generation was politically active and seeking social change. As outlined in the introduction to this book, the generations and their birth years are as follows: Silents (1925–45); Baby Boomers (1946–64); Gen X (1965–80); Millennials (1981–95); and Gen Z (1996–2013). Baby Boomers “experienced the …

The Music & The Movement: Race, Rhythm, And Social Justice, Renee Nicole Allen

Faculty Publications

From Billie Holiday's "Strange Fruit" to Public Enemy's "Fight the Power" to J. Cole's "Be Free," music has played a vital role in energizing social justice movements and elevating the legal and social issues facing Black people. An examination into the legal, historical, and social contexts for the music created during ten key movements in Black history reveals the role of lyrics and rhythm. Through the lens of music, ten movements—Freedom, Lynching, the Great Migration, Civil Rights, Black Power, Black Feminism, Police Brutality, Mass Incarceration, Black Love, and Black Lives Matter—demonstrate that Black music is more than entertainment. It is …

Formalizing Compliance To Reduce Board Exposure To Civil And Criminal Liability, Cheryl L. Wade

Faculty Publications

(Excerpt)

Fraternities and sororities (Greek-letter organizations or “GLOs” as used herein) are nonprofit organizations that present uniquely complex issues when considering the GLO directors’ ability to oversee and manage the organizations’ potential exposure to criminal and civil liability. Legal analysis of the fiduciary obligations of nonprofit directors borrows from, and analogizes to, the law of directorial fiduciary duty in the for-profit context. There are, however, important structural differences between for-profit and nonprofit firms that require consideration when thinking about how GLO boards operate. The potentiality of criminal and civil liability for a GLO is uniquely driven by the misconduct of …

Contextualizing The Triggering Event: Colonial White Supremacy, Anti-Blackness, And Black Lives Matter In Italy And The United States, Renee Nicole Allen

Faculty Publications

In the summer of 2020, spurred by George Floyd’s murder and amid a worldwide pandemic, Black Lives Matter demonstrations peaked in the United States. The viral nature of the police violence that caused Floyd’s death was a triggering event for transnational Black Lives Matter protests. Around the world, millions took to the streets to demand justice. In Italy, a resounding demand that “Black Lives Matter” filled the streets during solidarity protests that occurred in Milan, Naples, and Rome. Less than six months later, in September 2020, the fatal civilian beating of Willy Monteiro Duarte, a Black Italian, revealed the necessity …

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 …

The Stories We (Don’T) Tell: Using Case Briefing To Explore Bias And Oppression In The Law, Ashley B. Armstrong

Faculty Publications

Traditional case briefing focuses on the text of the opinion—how courts frame and resolve legal issues. This Essay explores how to teach case briefing to investigate bias and oppression in the law. By discussing socio-historical context during class or assigning reimagined judicial opinions alongside the original opinion, teaching case briefing this way asks students to consider the stories that judges don’t tell (and why). This Essay proffers two examples that illustrate these approaches: United States v. Robinson, 414 U.S. 218 (1973) and Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (1965).

Breaking The Rules, Rima Sirota

Georgetown Law Faculty Publications and Other Works

“Breaking the Rules” is a legal research and writing assignment that I crafted for students completing their first year of law school. The assignment honors new students’ desire for skills that will allow them to effectively challenge the status quo of settled but discriminatory legal rules. Part I of this article is an essay that contextualizes and explains the assignment; Part II provides the assignment itself.

Congress's Power To Investigate Crime: Did Trump Kill Kilbourn?, David Rapallo

Georgetown Law Faculty Publications and Other Works

Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as “severely discredited.” In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity—including illegal conduct—not to prosecute the offenders, …

The Private Litigation Impact Of New York's Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Faculty Publications

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial …

Front Matter, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Table Of Contents, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Last Call: The Limitations Of New Mexico's Existing Water Management Framework In The Face Of Reduced Colorado River Water Deliveries, Katherine H. Tara, John Fleck

Colorado Environmental Law Journal

No abstract provided.

Federalism In Flux: Addressing State Oversight Of National Security Facilities, John White

Colorado Environmental Law Journal

No abstract provided.

Incorporating A Framework For Compostable Materials Into Extended Producer Responsibility: Plastic Packaging Models In The Legal Fight Against The Plastic Problem, Brittney Beetcher

Colorado Environmental Law Journal

No abstract provided.

Climate Change And Voter Outreach: The Irs's Prohibition On Political Campaign Activity And Climate Nonprofits, Natalie C. Negrelli

Colorado Environmental Law Journal

No abstract provided.

The Rise Of The Nondelegation Doctrine And The Decline Of Our Oceans, Stephanie Reifenberg

Colorado Environmental Law Journal

No abstract provided.

Administering A Democratic Industrial Policy, Joel Michaels, Amy Kapczynski

Center for Law and the Economy

In Washington today, we are witnessing what many call the “return of industrial policy.” Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot …

Datafication, Power, And Publics In India's National Digital Health Ecosystem, Ramya Chandrasekhar

Socio-Legal Review

While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (‘NDHE’) – a digital system for the generation, use, and “frictionless” circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure.” Seeing the NDHE as a data infrastructure allows us …

The Violence Of Numbers: A Critical Appraisal Of The Justice Capabilities Framework, Abhineet Maurya

Socio-Legal Review

Systems of indicators and international rankings have today become a new mode of evaluating social, political, and economic life. In the context of measuring the rule of law and justice delivery systems at a local as well as a global level, such indicators enable empirically grounded solutions to justice reform issues. However, scholars like Siddharth Peter de Souza argue that the existing discourse concerning the rule of law and access to justice indicators promote a specific vision of a well functioning justice system grounded in western normative considerations. de Souza, in his book Designing Indicators for a Plural Legal World …

Cultivating Legalism From Paper Proofs: Analysing Everyday Forms Of Claim Making By Van Gujjar Pastoralists In Uttarakhand, Mohammad Meer Hamja, Pranav Menon

Socio-Legal Review

Scholarship from South Asia has often highlighted how subaltern peoples partake in social movements as figures of resistance but rarely analyse their techniques of working the law in their favour to negotiate citizenship with the state. Such modes of articulating claims through affective gestures and vernacular legalese foster plural meanings to otherwise rigid legal categories and dogmatic bureaucratic interpretation. This paper draws upon socio-historical and ethnographic accounts of Van Gujjars to highlight how these pastoralists utilise myriad forms of paper proofs and documentary evidence to engage in claim making across the forests of Uttarakhand. Through an articulation of everyday tactics …