Civil Rights and Discrimination Commons^™

Exploring The Limits Of Qualified Immunity Under Harlow’S Discretionary Function Test, James E. Pfander, Alexander A. Reinert

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No abstract provided.

Public Defender Discretion, Alma Magaña

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A focus of criminal legal system reform efforts has been the curtailment of police, prosecutorial, and judicial discretion, which has been criticized for its arbitrariness and its contribution to racial, class, and gender disparities. However, one system actor has largely escaped similar scrutiny: public defenders, who, by grant of authority from ethical rules of practice and Supreme Court jurisprudence, have significant decision-making authority in the cases of indigent persons charged with crimes.

This Article will, for the first time, explore the historical rationale for giving public defenders the power to make life-altering decisions for their clients. Specifically, it dissects the …

Constitutional Futurisms, Jeremiah Chin

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How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

Is It Time To Scrap Stare Decisis?, Wilfred U. Codrington Iii

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Shortly after returning to the presidency, Donald Trump terminated several independent federal officers, prompting legal action by employees who occupied government positions covered by statutory for cause removal protections long held constitutionally permissible and valid. Eventually, one or more suits alleging unlawful termination owing to the removal without cause will reach the Supreme Court to be decided on the merits. Having steadily narrowed the Humphrey’s Executor line of cases that insulate these officers, the Court now seems poised to displace that precedent entirely. In isolation, the overruling would mark a seismic doctrinal shift and major advance in legal conservatism's pursuit …

The New Redlining: How Progressive Policies Restrict The Development Of Housing Supply And Perpetuate America's Racist Property Law Past, Steve Calandrillo, Kelsey Dunn

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Recent scholarship has exposed America’s racist property law past. During the twentieth century, decades of deliberate state-sponsored discrimination (a.k.a., “Redlining”) made homeownership—and the accumulation of wealth—more difficult for people of color. In 1948, the Supreme Court outlawed these practices in the seminal case, Shelly v. Kraemer. However, the damage had been done, and has proven to be long-lasting. Redlining slowed economic mobility for people of color and exacerbated the racial wealth gap. As a result, America is in the midst of an affordable housing crisis that disproportionately impacts people of color.

Readers well versed in economics and public policy …

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

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In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

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Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor …

Deputization And Privileged White Violence, Ekow N. Yankah

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A number of high-profile and racially charged killings, such as Trayvon Martin’s, Kenneth Herring’s, Ahmaud Arbery’s, and Jordan Neely’s, have been at the hands of civilians declaring themselves the law. These deaths stemmed from a phenomenon best described as “deputization.” Deputization describes a latent legal power that has empowered White people throughout American history to claim authority to enforce the law, as they see it, upon racial minorities generally and Black people in particular. This power turned the ancient common law duty to police all felons in England into a specific American common law duty to police Blacks. From the …

Institutionalized Ostracism, Danieli Evans

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Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

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The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

Judicial Economy In The Age Of Ai, Yonathan A. Arbel

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Individuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.

Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize affecting every stage …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

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Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Disability Discrimination By Clinical Algorithm, Elizabeth Pendo, Jennifer D. Oliva

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In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.

Research demonstrates that clinical overreliance on the risk scores generated by …

Federal Indian Law As Method, Matthew L. M. Fletcher

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Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

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The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

The Government Speech Doctrine Ate My Class: First Amendment Capture And Curriculum Bans, Caroline Mala Corbin

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Because of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.

Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government …

Consent Searches As Police Violence, David B. Owens

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Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context …

Sins And Omissions: Slavery And The Bill Of Rights, Richard Primus

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According to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight …

Cognitive Dissonance In The Antebellum South About The Lawfulness Of Slavery, Peter K. Westen

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The institution of slavery, by its nature, was necessarily grounded in law. For whenever a society adjudges one class of persons as free and another as enslaved, law-like norms must exist to identify and distinguish the free from the enslaved. And whenever a society institutionalizes slavery, law-like norms must exist to establish the privileges and disabilities possessed by masters, by the enslaved, and by third persons in relation to masters and slaves. Such master-slave norms may not always be enforced. But, until societies disavow or disremember them, they constitute standards of right and wrong that master-slave societies profess to embrace. …

What’S Going On? Diversity, Equity, And Inclusion Dispute Resolution Initiatives In The U.S., Robyn Weinstein

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Over the course of my career, I have worked for and managed community dispute resolution centers, overseen a court-annexed dispute resolution program, and run a law school mediation clinic (my current position). In each post, I have been in a position of power over a different "gateway" or entry point into the field of dispute resolution. In these roles, and especially in my work overseeing a court-annexed ADR program, I became increasingly aware of who applied (and did not apply); who was appointed (and was not appointed); and who was selected (and not selected) for work as a mediator and …

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

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Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

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The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Harm Egalitarianism, Michael E. Herz

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In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting …

Carceral Socialization As Voter Suppression, Danieli Evans

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In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

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This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

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Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

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Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Conditions Of Participation: Incorporating The History Of Hospital Desegregation, Sallie Sanford

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Our students ought to know about the history of formal hospital segregation and desegregation. To that end, this article urges those who teach foundational health law and policy courses to do three things. First, to teach the Simkins case. Second, to swap out the usual Medicare signing ceremony picture for one that includes W. Montague Cobb, M.D., Ph.D. Third, to highlight how the implementation of that program for the elderly led, in a matter of months, to the desegregation of hospitals throughout the country.

Due Process Deportations, Angelica Chazaro

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Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts— and thus are impervious to immigration lawyering. Even for those who make it …

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher

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In the form of a cute, cuddly, and innocent waabooz, Nanaboozhoo munched on the chewy, bitter Tłohdá’ákáłiitsoh he found everywhere in this⁣ land, far from his own. Although, it was a bit dry. In this land, Dinétah,⁣ Nanaboozhoo thought he could see forever. There were few trees. The sky⁣ was bright blue and limitless. The air smelled like a kind of dirt he had never⁣ experienced. And, boy howdy, was it dry. He couldn’t smell water for the⁣ life of him. But there was water, to be sure, or else there wouldn’t be this⁣ bush.