Civil Rights and Discrimination Commons^™

The Motherhood Myth, Traditional Firms, And The Underrepresentation Of Women, Paula Schaefer

FIU Law Review

This Article explains that the motherhood narrative—that women are underrepresented in partnership and leadership ranks of law firms because they are their children’s primary caregivers—is a myth. After detailing how the motherhood myth has been used as an excuse for poor retention of women, the Article provides evidence of an alternative explanation: traditional firms—characterized by extreme work expectations and reliance on the unpaid labor of attorneys’ stay-at-home spouses or partners (SAHSs)—are structurally and culturally hostile to women. To thrive in a traditional firm, an attorney needs a SAHS—not just an equal parenting partner as the motherhood myth claims. Traditional firms’ …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman

Touro Law Review

At a moment when antisemitism is on the rise in the United States, we believe it is useful to consider how the American Revolution led to the first nation in the world where antisemitism was fundamentally contrary to the national constitution and Jews were entitled to full rights as citizens of the national government. As we explain in this article, during and after the Revolution, Jews were free to participate in all professions and general civic life, naturalize (if immigrants), vote, serve on juries, become lawyers and judges, become military officers, and attend universities. Jews had almost none of these …

From Likes To Legislation: How The Internet Has Facilitated Hate Speech, Anti-Dei Discourse And Policy, And Threatens Our Democracy, Carmen Lynn Benavides-Garb

Undergraduate Scholarship

I argue that the way hate speech, and Anti-DEI rhetoric spreads online, through social media and algorithms, has impacted real-world Anti-DEI policies, attitudes, and overall backlash. In this essay I will begin by discussing the four themes found in my literature review, 1) Online Hate Speech, 2) Social Media and Algorithms, 3) Diversity, Equity, and Inclusion (DEI), and 4) Anti-DEI Movements. From there, I will discuss the historical background of DEI movements in America to provide context about what makes this moment in history unique. I will then discuss the role of the Trump Presidency in relation to Anti-DEI work. …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

Scholarly Articles

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

From The Court To The Courtroom: A Stanley Lens To Potential Equal Pay Act Claims For Women’S Collegiate Athletes, Katrina L.G. Murphy

University of San Francisco Law Review

No abstract provided.

Freedom Of Peaceful Assembly Under Section 2(C) Of The Charter: A Call For Action, Jamie Cameron

All Papers

“A Call for Action” builds on the author’s previous work on s.2(c) for the Rouleau Commission (“Freedom of Assembly and Section 2(c) of the Charter”; available on SSRN and Osgoode Digital Commons). There is no framework of legality under the Charter for the scope and limits of peaceful assembly, and this follow-up paper begins the task of filling that gap. It addresses the relationship between s.2(b) and s.2(c), critiquing the “factual matrix principle” for subsuming issues freedom of assembly into freedom of expression, and explaining that assembly is a distinctive collective entitlement that is spatial and performative in nature. …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

The Whiteness Of Wealth & Black Student Loan Debt, Renee Nicole Allen

Faculty Publications

On June 30, 2023, to the dismay of many anxious borrowers, the Supreme Court held that the Secretary of Education did not have the authority to cancel roughly $430 billion in federal student loan balances, thus blocking President Biden’s plan for student loan forgiveness. Despite authority delegated to the Secretary to waive or modify provisions of the Education Act to ensure low-to-middle income borrowers were not placed in a worse financial position because of the COVID-19 national emergency, the Court rejected the forgiveness plan and borrowers resumed payments in October 2023. Anti-Black racism in federal law and policy have contributed …

Sffa V. Harvard: Racial Triangulation And The Invidious Myth Of Colorblindness, Philip Lee

Faculty Publications

(Excerpt)

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the longstanding practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with …

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Cardozo Journal of Conflict Resolution

With arbitration’s meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair “arbitration in name only” that should not be enforced.

Employers have become savvier in how they require employees to agree to resolve discrimination …

The Fearless Decision And The Future Of Race-Conscious Charities, Chenglin Liu

Faculty Articles

Historically, courts tended to differentiate between invidious discrimination against racial minorities and benign discrimination against whites in the context of affirmative action movements. With the social movements galvanized by the conservatives and the change of composition of the Supreme Courts and lower courts, the feasibility of race-conscious measures aimed at helping minorities is substantially reduced. The conservatives' win in Fearless, coupled with the Trump Administration's attacks on DEI, have produced a self-censoring effect on charitable organizations. Because of these threats, race-conscious charities will have to modify their practices to become more "inclusive" or face legal challenges from conservatives.

From Ambiguity To Accountability: The Case For A Legal Definition Of Antisemitism In Academia, Andrea Martin

Faculty Scholarship

Following the October 7, 2023, Hamas attacks on Israel, U.S. college campuses experienced a sharp rise in antisemitic incidents, driven by an antizionism movement aimed at demonizing and delegitimizing the Jewish state and its supporters. A congressional investigation found that antisemitism persisted at prominent universities because administrators repeatedly failed to denounce antizionist conduct that functions as a vehicle for harassment of Jewish students and neglected to enforce their own nondiscrimination policies. The congressional committee, as well as several university antisemitism task forces, identified antizionism as a primary driver of campus antisemitism and strongly recommended that university leaders recognize and address …

Recognition Policies, Self-Determination, And Access To Legal Redress For Indigenous Peoples In The United States, Australia, And Canada: A Comparative Study, Christian Zavardino

Cardozo International & Comparative Law Review

The note examines recognition policies and self-determination frameworks for Indigenous Peoples in the United States, Australia, and Canada, arguing that the U.S. federalist system of tribal recognition offers a potential model for addressing Indigenous rights in other countries, particularly Australia. It emphasizes the importance of international law, such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), in guiding domestic policies and promoting Indigenous sovereignty.

Reframing Puerto Rican Advocacy: How The Emerging U.S.-China Rift Can Help Puerto Rico Realize Greater Autonomy, Michael Angelo Tabrizi

Cardozo International & Comparative Law Review

The note advocates for reframing Puerto Rican decolonization efforts as a foreign policy issue rather than solely a domestic matter, leveraging the U.S.-China rivalry to gain international support and alignment with the United Nations' principles on self-governance.

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

Interrogating Miranda's Custody Requirement, Lauren E. Clatch

Law Faculty Publications

Interrogating officers need only issue Miranda warnings in “custodial” settings, and a significant degree of psychological coercion makes a setting custodial. This Article asks a question at the heart of Miranda caselaw: Have courts applied Miranda’s custody trigger consistent with people’s real experiences of police questioning? If not, courts are allowing, and justifying, the admission of unwarned self-incriminating statements by deeming those interrogations “noncustodial” even when there is a significant element of compulsion. To compare courts’ custody decisions to civilians’ perceptions of coercion in interrogations, I surveyed laypeople across two studies using forty interrogation scenarios from jurisdictionally diverse cases spanning …

Flexing The Celebrity Muscle: Celebrity Leverage In Trademark Law And Why Small Businesses Deserve Equitable Treatment, Victoria M. Lopez

Cardozo Arts & Entertainment Law Journal

The note examines the imbalance in trademark law disputes between celebrities and small businesses, arguing that celebrities often leverage their fame and resources to gain an unfair advantage. It highlights how this dynamic can overshadow the rights of small businesses, even when they have prior use of a trademark, as seen in the case of Beauty Concepts vs. Kim Kardashian. The analysis advocates for a more equitable approach to trademark law to protect small businesses from being disadvantaged by celebrity influence.

No Knock? No Case: Prosecutorial Deterrence As A Countermeasure To No-Knock Warrants, Tamika Griffin Moses

Law Faculty Publications

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy …

Gen Y More Black Corporate Directors, Chaz Brooks

Scholarly Articles in Law Reviews & Journals

Corporate diversity has been in the spotlight for decades. Recent efforts have followed years of legal scholarship, arguments on the business rationale for greater diversity, and more recently, the racial unrest during the summer of 2020. Called by some, a “racial reckoning,” the summer of 2020 catalyzed many corporate declarations on the importance of diversity, and more to the point of this article, the necessity of righting the economic disadvantages of Black Americans. This article looks specifically at one intervention by a corporate player following summer 2020, Nasdaq’s volley to increase corporate diversity through required disclosure. This article reviews the …

Poison! An Africana Legal Studies Investigation Into Enslaved Africans And Their Deadly Roots, Angi Porter

Scholarly Articles in Law Reviews & Journals

This article is a murder investigation.

And a strange one, as the victims might be the suspects, and the suspects might be the victims. Or, even stranger, who we are calling the victims might be the enforcers of an entirely different justice system we did not initially see.

This is a cold case: we are investigating African people enslaved in the Province of Maryland during the eighteenth century. It is really a collection of cases—all cases of poisoning. These enslaved Africans were poisoning their enslavers. The incidents are described in legal records and newspapers. But what do these poisonings really …

Forward Progress: The Rooney Rule And Its Post-Sffa Relevance, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

In 2003, the National Football League (NFL), which had long struggled with racial inequity both on and off the field, implemented a policy known as the Rooney Rule, requiring that any league club searching for a head coach interview at least one person of color before making a hire. In the over two decades since, employers of all sorts seeking to increase opportunities for people of color and women have adopted a form of the Rule. Indeed, it has gained traction from coast to coast. Hundreds of American employers utilize the Rooney Rule or a policy derived therefrom. In the …

Title Ix And Athlete Compensation In The Postamateurism Era, Erin Buzuvis

Fordham Law Review

No abstract provided.

"Shocking The System" In The 21st Century: Conservative Policy Entrepreneurs And The Plan For Authoritarianism In The U.S., Athena M. King

Political Science & Geography Faculty Publications

The first few days of the second Trump presidency saw a flurry of executive orders targeting immigrants, the transgender community, blacks, and federal government employees. The resulting “shocks” to the system are unprecedented, causing many to question the continuation of American democracy. These actions are a few of many policy preferences developed by conservatives and captured in “Project 2025”, spearheaded by the Heritage Foundation and with the overall intent of restructuring the federal government to suit authoritarian aims. Using a theoretical framework regarding policy entrepreneurs (PEs), I argue that conservative PEs (CPEs), under the aegis of the Republican Party and …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …