Civil Rights and Discrimination Commons^™

Race, Slavery And Justice: A Justice System Case Study, Camille Cameron

Reports & Public Policy Documents

We do not have to look far today in Canada to see the legacies of slavery in their full effect. One of these legacies is the way in which we have chosen to forget slavery, or perhaps to deny it, and to create a different narrative. “Slavery is Canada’s best-kept secret, locked within the national closet,” asserts Afua Cooper. Ask many Canadians about the history of slavery in Canada and they will talk about the Underground Railroad. This is what many of us learned in school, that slavery existed in America, not in Canada, and that Canada’s heroic, romantic role …

The Structural Dimensions Of Race: Lock Ups, Systemic Chokeholds, And Binary Disruptions, Cedric Merlin Powell

Faculty and Staff Scholarship

Disrupting traditional conceptions of structural inequality, state decision making power, and the presumption of Black criminality, this Essay explores the doctrinal and policy implications of James Forman, Jr.’s Pulitzer Prize winning book, Locking Up Our Own, and Paul Butler’s evocative and transformative book, Chokehold. While both books grapple with how to dismantle the structural components of mass incarceration, state legitimized police violence against Black bodies, and how policy functions to reify oppressive state power, the approaches espoused by Forman and Butler are analytically distinct. Forman locates his analysis in the dynamics of decision-making power when African American officials wield power …

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Marquette Law Review

Both attorneys and judges take an oath to promote justice for all, however,

that is not the case in our current system. The world we live in today looks

incredibly different than it did just a few years ago and, as a result, the practice

of law must adapt to meet the changing needs of individuals in this new era.

Notably, the access to justice problem, specifically affecting low- to moderateincome

individuals, requires a shift in the availability of legal services

provided. Limited scope representation, which has been accepted by the

American Bar Association for 20+ years, where an attorney …

Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Due Process And Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Policies restricting immigration and citizenship play a significant role in the current political environment. The implementation of the travel ban, litigation over DACA, and a narrowing of citizenship opportunities for members of the armed forces have all made headlines in the last two years. Along with those policies, the Trump administration has also significantly increased efforts to strip citizenship from individuals alleged to have gained it improperly.

Revocation of citizenship used to focus primarily on former Nazis and other war criminals hiding from justice in the United States. Now, through programs called Operation Janus and Operation Second Look, the Trump …

Women Are (Allegedly) People, Too, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

Celebrating WCL Student Authors

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Journal Articles

The 100th anniversary of the 19th Amendment to the United States Constitution is an appropriate moment to reflect on the history—and consider the future—of the right to vote in the United States. High school and college classes teach the nation’s suffrage story as integral to our identity, focusing on the enfranchisement of women under the 19th Amendment and African Americans pursuant to the 15th Amendment.1 Constitutional law courses also present the 15th Amendment as foundational knowledge for the legal profession.2 Critical legal theory and women’s legal history texts frequently cover the 19th Amendment as central to understanding the first wave …

The Proof Is In The New Pudding: The Third Circuit Removes "But-For" Causation From The Prima Facie Case For Title Vii Retaliation Claims In Carvalho-Grevious V. Delaware State University, Thallia Malespin

Villanova Law Review (1956 - )

No abstract provided.

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

The Seeds Of Early Childhood, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.

Age, Time, And Discrimination, Alexander A. Boni-Saenz

Georgia Law Review

No abstract provided.

Too Much, Too Soon? Obergefell As Applied Equality Practice, James M. Donovan, Alyssa Oakley Milby

Law Faculty Scholarly Articles

Abrupt cultural change inevitably arouses anxieties, and often those fears provoke a retrograde reaction seeking to preserve the familiar status quo. When the world by which we define ourselves undergoes unexpected transitions, especially in directions that contradict the comfortable taken-for-granted assumptions that had been earlier enjoyed, we feel threatened. One needs only recall how the new standards of racial equality announced in Brown I and Brown II elicited virulent protests as some districts chose to shutter all public schools rather than have them become racially integrated. In the shadow of such traumas, it may seem an obvious lesson that progress …

“You Can't Afford To Flinch In The Face Of Duty”: Judge William Augustus Bootle And The Desegregation Of The University Of Georgia, Patrick Emery Longan

Articles

On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a …

White Caller Crime: Racialized Police Communication And Existing While Black, Chan Tov Mcnamarah

Michigan Journal of Race and Law

Over the past year, reports to the police about Black persons engaged in innocuous behaviors have bombarded the American consciousness. What do we make of them? And, equally important, what are the consequences of such reports?

This Article is the first to argue that the recent spike in calls to the police against Black persons who are simply existing must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices. First, racially motivated police reporting—calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read …

Harassment: A Separate Claim?, Sandra F. Sperino

Faculty Publications

In 2017, media attention focused on sexual harassment as victims reported harassment and assault as part of the #MeToo movement. Although many of the accounts focused on sexualized treatment, this treatment often occurred within a broader context of unequal treatment, such as pay inequality and the disproportionately low promotion rate of women into leadership positions. For decades, legal scholars have noted the interplay between broader work constructs and harassment.

This Article argues that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court's jurisprudence surrounding harassment. Unfortunately, this error represents the dominant view among federal …

Digital Accessibility And Disability Accommodations In Online Dispute Resolution: Odr For Everyone, David Larson

Faculty Scholarship

Court systems are exploring and beginning to adopt online dispute resolution (ODR) systems, and it is critical that they make digital accessibility a priority. Even though we need to pay close attention to ODR developments in court systems, we cannot overlook the fact that there are ODR providers in the private sector whose systems also must be accessible for persons with disabilities. Plaintiffs filed more ADA Title III website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017. There were at least 1053 such lawsuits in the first six months of 2018, …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

The Quasi-Parent Conundrum, Michael J. Higdon

University of Colorado Law Review

Although family law is very much concerned with legal parentage and its attendant rights, children are much more concerned with maintaining relationships with those who care for them, regardless of whether that person is a legal parent or someone functioning as one. What happens though if the child's legal parent attempts to banish the quasi-parent from the child's life? Doing so can be extremely damaging to the child. Nonetheless, parents do possess a constitutional right to make decisions about how to rear their children, including who may have access to the child.

Trying to strike a balance between protecting the …

Marijuana Legalization, Racial Disparity, And The Hope For Reform, Michael Vitiello

Lewis & Clark Law Review

The criminalization of marijuana is rooted in a deeply racist history and has devastated minority communities. Studies show that usage of the drug is consistent across racial groups, but arrests of minorities are nevertheless higher than arrests of white offenders. Indeed, those kinds of disparities have persuaded some voters and policy makers to support legalization of marijuana.

California’s initiative, Proposition 64, passed in November 2016 and is now being implemented statewide. Drafters of Proposition 64 were aware of the racial disparity in enforcement of marijuana laws and attempted to offer a remedy. This Article asks whether Proposition 64 can achieve …

Zoning, Race, And Marijuana: The Unintended Consequences Of Proposition 64, Alexis Holmes

Lewis & Clark Law Review

This Article revisits the campaign to legalize cannabis in California with Proposition 64. It then dissects the localism within the new California regulations and how it conflicts with the social justice goals central to the spirit of Proposition 64’s passage. With local governments retaining control over marijuana in their jurisdictions, land use takes on new importance with respect to how marijuana will be controlled. The problem is that the land use system, like the criminal law apparatus, has yet to overcome systemic racism that is inherently part of its design. Proposition 64 wrongly relied on local control to regulate marijuana …

Kkk In The Pd: White Supremacist Police And What To Do About It, Vida B. Johnson

Lewis & Clark Law Review

There is an epidemic of white supremacists in police departments. Police officers have been identified as members of white supremacist groups in Florida, Alabama and Louisiana. There have been scandals in over 100 different police departments, in over forty different states, in which individual police officers have sent overtly racist emails, texts, or made racist comments via social media. This is a nation-wide problem. It is one that is not limited to just beat officers; some of these shocking occurrences have even involved high-ranking members of their respective police forces. Although the F.B.I. warned of white supremacists infiltrating police departments …

Don't Call Me Sweetheart! Why The Aba's New Rule Addressing Harassment And Discrimination Is So Important For Women Working In The Legal Profession Today, Kristy D'Angelo-Corker

Lewis & Clark Law Review

Popular culture has recently shone a spotlight on the inequality and discrimination faced by women in many professions. With the “Me Too” and “Time’s Up” campaigns in full swing, it is clear that women are ready to fight to be respected and receive equal treatment. Although there are a plethora of news stories highlighting the issues that women are facing today, this Article will focus specifically on the effect of bias, prejudice, harassment, and discrimination against women in the legal profession. This discrimination and marginalization of women finds its way into law firms, courtrooms, and the corporate arena generally, and …

Reflections On Representing Incarcerated People With Disabilities: Ableism In Prison Reform Litigation, Jamelia Morgan

Faculty Articles and Papers

Over the last five decades, advocates have fought for and secured constitutional prohibitions challenging solitary confinement, including ending the placement and prolonged isolation of individuals with psychiatric disabilities in solitary confinement. Yet, despite the valiant efforts of this courageous movement to protect the rights of incarcerated people with disabilities through litigation, the legal regime protecting these rights reflects a troubling paradigm: ableism.

Ableism is a complex system of cultural, political, economic, and social practices that facilitate, construct, or reinforce the subordination of people with disabilities in a given society. In this Essay I argue that current Eighth Amendment jurisprudence in …

The Birth Of A Nation: A Study Of Slavery In Seventeenth-Century Virginia, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

Race based slavery in North America had its origins in seventeenth-century Virginia. Initially, the position of the African worker was similar to that of the indentured servants from England. During the early to mid-seventeenth century, both African and English indentured servants served for a period of years and received the protections to which a servant was entitled. However, during the 1640s there appeared examples of Africans also being held as slaves. Thus, during the seventeenth century there existed a dual system of servitude or bondage for the African worker. One basis for this duality was the common law practice that …

#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in five parts. Part I reviews the history of the legal and social movement from gender-specific to gender-neutral statutory rape laws. This Part includes an exploration of critical scholarship responding to the Supreme Court's Michael M. decision. Part II explains the limitations of gender-specific legislation. This Part illustrates that there are two categories of gender-neutral statutory rape jurisdictions: age-differential statutes and arbitrary prosecution statutes. This Part also explores challenges to these statutes, particularly arbitrary prosecution statutes, on equal protection grounds. Part III provides empirical data that men are prosecuted at a rate four times greater than females …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Indiana Law Journal

In “Opioid Policing,”1 Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times2 and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this Response …

Beyond The Numbers: Substantive Gender Diversity In Boardrooms, Yaron G. Nili

Indiana Law Journal

The push for gender diversity on public companies’ boards has been gaining traction. Advocacy groups, institutional investors, regulators, and companies themselves have all recognized the need for more diverse boards. However, gender parity is still absent from most public companies’ boards, and a significant number of companies still have no women on their boards.

Current public and academic discourse has focused on the number of women serving on the board and their percentage compared to men as the litmus test for gender diversity. However, academic studies and the public push for more diversity have mostly failed to account for another …