Civil Rights and Discrimination Commons^™

Whatcha Gonna Do When They Come For You? Assessing The Damage Associated With The Rise Of Reality Tv Policing And Proposing Avenues For Accountability And Reform, Danielle Taylor

Chicago-Kent Law Review

No abstract provided.

Plausibly Illiberal: Sua Sponte Dismissals Of Pro Se Complaints Under The Prison Litigation Reform Act, Pierce Edlich

Fordham Law Review

Over a quarter of civil litigants file suit in federal court without an attorney. Most unrepresented litigants are in prison, and many of their cases raise complex, delicate constitutional questions. The number of unrepresented litigants in federal courts rose steadily until the 1990s, when Congress passed the Prison Litigation Reform Act (PLRA) of 1995 to limit the burden of frivolous inmate litigation on federal courts. Since 1996, the PLRA has defined courts’ procedural obligations for inmate and in forma pauperis (IFP) suits, often filed pro se. The PLRA requires that courts screen and dismiss sua sponte cases that are frivolous, …

A Broken Shield: Ineffective Assistance Of Counsel Claims In Cases Of Racist Defense Attorneys, Sophia Sabet

Fordham Law Review

Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received. Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense. The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan P. Feingold

Connecticut Law Review

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural …

Food Identity, Mathilde Cohen

Journal of Food Law & Policy

Food identities are typically ascribed either based on medical or social definitions or chosen by individuals. But they can also be expressive dimensions of other identity traits such as race, ethnicity, religion, national origin, gender, age, body size, disability, and socio-economic status, among others. What role does the law play in supporting or undermining certain food identities? This Article makes two central contributions. First, it highlights that though U.S. law recognizes food identity as an interest to be protected in certain contexts, it does so in an unsystematized way, contributing to systemic deprivation and discrimination in relation to foodways. The …

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

Outlier On Lgbtq Rights: Japanese Ban On Same-Sex Marriage And Its Contradiction In The Age Of Globalization, Yumi Higashi

Brooklyn Journal of International Law

Japan is the only Group of Seven country yet to recognize same-sex marriage. Despite strong public support for marriage equality, the conservative dominance of the Japanese legislature and the Japanese courts’ deferential approach have stalled the change. This Note will analyze the legal issues and implications of Japan’s failure to recognize same-sex marriage and Japan’s worldwide inheritance tax regime, with an emphasis on cross-border succession and estate planning. Specifically, the Note argues that the United States, as the only country with which Japan has a treaty in estate, inheritance, and gift tax, should renegotiate the treaty as it could have …

Silent Suffering: Demanding Individual Accountability For Sexual Assault Against Disabled Children In School Environments, Stephanie Flores

Journal of Law and Policy

Disabled children are among the most vulnerable in society, particularly in school environments where they depend on the actions and care of others for their safety. These children face significantly higher risks of sexual abuse than their non-disabled peers, and school officials' negligence can exacerbate this danger. Despite the prevalence of such cases, the Fifth Circuit's refusal to recognize school officials’ liability under the state-created danger doctrine, as seen in Fisher v. Moore, deprives disabled children of adequate legal recourse under 42 U.S.C. § 1983. The decision holds that school officials cannot be held personally liable for the peer-inflicted sexual …

Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy

Journal of Law and Policy

Mass incarceration is a uniquely American phenomenon. With roots in chattel slavery, modern mass incarceration truly exploded in the latter half of the 20th Century. As Reagan-era politicians advocated for fiscal conservatism on the one hand and heavy-handed responses to crime on the other, private prison pioneers saw an opportunity to derive profit from society’s most vulnerable. Today, private prisons house as much as half of some states’ total prison population, and private prison corporations have demonstrated an insatiable desire to expand their reach. This Note explores the unique social vulnerability of privately incarcerated people through a statutory and judicial …

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

Articles

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 …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

“Split My Award With Whom?” A Case For Plaintiff Incentive Awards And Plaintiff-Attorney Fee Splitting In Class Action Lawsuits, Ilana Kruchenetskaya

Cardozo Law Review

Named plaintiffs are the heart of class action lawsuits—without them, there is no class action. To motivate these individuals to be the face of the class and compensate them for their role in the litigation process, courts typically approve named plaintiff incentive awards when such awards are included in settlement offers. Recently, however, the Eleventh Circuit held that these awards are prohibited under purported Supreme Court precedent from the late 1800s. This decision undermines the future of class actions by removing any incentive individuals may have in taking on the extra work and scrutiny of bringing a class action lawsuit. …

The Equal Right To Exclude: Religious Speech And The Road To 303 Creative Llc V. Elenis, Kate Redburn

Faculty Scholarship

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

Not "Indian" Enough: Freedmen, Jurisdiction, And Equal Protection, Ted Shepherd

Pepperdine Law Review

Beginning in the 17th century, many American Indians owned enslaved African workers. They stopped only at the end of the Civil War, when several Tribal Nations signed treaties with the federal government requiring them to emancipate their enslaved workers. The treaties also required the Nations to enroll these “Freedmen” and their descendants as full Tribal members. The Nations complied for a time, but then withdrew membership from the descendants in the 1970s. In 2017, however, a federal court required the Cherokee Nation to honor its treaty and grant the descendants of Cherokee Freedmen full Tribal membership, which it did. Despite …

Balancing Freedom Of Expression And Equality On College Campuses In The Wake Of Intensified Antisemitism, Andrea Jane Martin

Brooklyn Law Review

The long-standing debate about free speech on college campuses was reignited by the attack on Israel by Hamas on October 7, 2023. Since then, anti-Israel advocacy at universities has drastically escalated. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and the destruction of Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort is …

Dejoyful Noise: Reimagining Title Vii Religious Accommodations In The Wake Of Groff V. Dejoy, Mikko Biana

Brooklyn Law Review

The prominence of religion in everyday life has dwindled in recent decades. The number of Americans who attend weekly religious services continues to decline, and wide swaths of the population now profess irreligion altogether. Despite this trend, constitutional mandates such as the Free Exercise and Establishment Clauses remind society that throughout history and into the present day, the relationship between religion and state has been and always will be ripe for discussion. The 2023 Supreme Court decision Groff v. DeJoy exemplifies this characterization. Prior to Groff, the Court primarily relied on a 1977 case, Trans World Airlines, Inc. v. Hardison, …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

Law School News: Disrupting Legal Education For Equity 11-19-2024, Danna Lorch

Life of the Law School (1993- )

No abstract provided.

Integrating Doctrine And Diversity Speaker Series: Echoes Of Slavery: A Deep Dive Into The Citing Slavery Project 11-6-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.