Jurisprudence Commons^™

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

Addressing The Root Of Housing Insecurity: Washington Should Divest From “Crime-Free” Housing Programs, Sarah Cerdena

Seattle University Law Review

Crime-Free Rental Housing Properties (CFRHPs) have proven to be an ineffective and inequitable approach to public safety. Often, tenants in these properties are evicted—at times, extrajudicially—as a result of conduct that does not rise to violations of their lease provisions, much less criminal behavior. By placing extraordinary power in the hands of local law enforcement to carry out these ordinances, CFRHPs predictably pose significant harm to Black and Latinx communities, survivors of domestic violence, disabled tenants, and low-income tenants generally. Recently, the Washington State Supreme Court grappled with the tensions arising between CFRHPs and the enforcement of Washington landlord-tenant law. …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

Institutionalized Ostracism, Danieli Evans

Articles

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 …

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Invisibility And Dis-Identification Of Algerian Women: Feminist Jurisprudence Eyes On The Legal Provisions Related To Personal Status And Criminal, Sophia Lina Meziane

Theses and Dissertations

Much of the debate around women’s rights in legal systems focuses on the increase of protection as a legal mechanism for approaching and guaranteeing gender equality. Yet, what extensive or comprehensive analysis has been done on how effective such laws are when applied? This thesis discusses the extent to which a feminist legal theory, separate and distinct from the patriarchal legal system, can demonstrate how an Islamic or Napoleonic order is conceptually another male rationality. While one could possibly identify inefficiencies of laws proclaiming equality and protection for women, the context of the question is inevitably entrenched in the very …

The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh

Journal of Race, Gender, and Ethnicity

This Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.

Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, …

National Pork Producers Council V. Ross: Brief Of Professors Barry Friedman And Daniel T. Deacon As Amici Curiae In Support Of Respondents, Daniel T. Deacon

Appellate Briefs

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University Law School and is one of the country’s leading authorities on constitutional law and the federal courts. Daniel T. Deacon is a Lecturer at the University of Michigan Law School and has published extensively on topics that include constitutional and administrative law. Professors Friedman and Deacon are the authors of A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877 (2011), a leading article examining the origins of the Commerce Clause and defending the validity …

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

The Role Of Truth-Telling In Indigenous Justice, Sara L. Ochs

Journal of Race, Gender, and Ethnicity

No abstract provided.

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Critical Legal Thought: The Case For A Jurisprudence Of Distribution, Paulo Borrozo

University of Colorado Law Review

No abstract provided.

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Lgbt Discrimination As Religious Discrimination: Ruse Or Resolution?, Craig Westergard

Barry Law Review

No abstract provided.

How Actions Affirm: Reflections On The Question Of Affirmative Action, Doron Menashe

Touro Law Review

No abstract provided.

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Whiteness At Work, Lihi Yona

Michigan Journal of Race and Law

How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized …

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Aspirations Of Objectivity: Systemic Illusions Of Justice In The Biased Courtroom, Meagan B. Roderique

Scripps Senior Theses

Given the ever-growing body of evidence surrounding implicit bias in and beyond the institution of the law, there is an equally growing need for the law to respond to the accurate science of prejudice in its aspiration to objective practice and just decision-making. Examined herein are the existing legal conceptualizations of implicit bias as utilized in the courtroom; implicit bias as peripheral to law and implicit bias as effectual in law, but not without active resolution. These views and the interventional methods, materials, and procedures they inspire are widely employed to appreciably “un-bias” legal actors and civic participants; however, without …

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Speaking Law: Towards A Nuanced Analysis Of 'Cases', Susanne Baer

Articles

“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court’s decision in the conflict about female teachers wearing headscarves in German public schools may be …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.