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Challenging Race-Based Health Care Discrimination: A New Private Right of Action
Full text linkThe 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 mechanism remains. Section 1557 of the Patient Protection and Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs and activities receiving federal financial assistance. In applying this provision, this Note offers a path forward for civil rights plaintiffs who have been affected by inadequate medical treatment on the basis of race
Smile for the Camera: Balancing Parental Rights and Children’s Privacy in the Age of Family Influencers
Full text linkMinimal Rationality and The Law of Evidence
Full text linkFor more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, rationality, and leaves it to the adversarial process to produce accurate (or inaccurate) results. Our primary aim is to describe the law of evidence and the rationality norm that best explains the evidentiary proof process. Although we largely put aside normative debates about whether the law of evidence should be constructed differently, our analysis generates normative implications. First, it generates implications for evidence scholarship, both positive and normative, that mismodels or misdescribes the law of evidence as pursuing maximal rationality (or other strong conceptions of rationality). Second, because the adversarial process—rather than the law of evidence—is primarily responsible for furthering accurate fact-finding, our analysis provides further support for increasing access to evidence and resources for criminal defendants. The various mechanisms and procedural devices that are designed to protect criminal defendants from wrongful convictions—the burden of persuasion, the right to counsel, and confrontation and compulsory process rights, for example—only work effectively with access to information. This Article, while primarily contributing to the ongoing reconceptualization of the field of evidence, has potentially radical implications for the criminal process
Constitutional Futurisms
Full text linkHow 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\u27n 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 States. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court instead relies on an ahistorical framing of equal protection as colorblindness. This selective history ignores both the social context of cases such as Plessy v. Ferguson and Brown v. Board of Education, and the conceptual origins of affirmative action itself. This results in a vision of a colorblind present and future that is silently constrained and controlled by racisms of the past. Building on Professor Bennett Capers’s work on Afrofuturism and Professor Paul Gowder’s Constitutional Sankofa, I advance a new, futurist methodology of constitutional interpretation—one that incorporates a plurality of histories and traditions, and imagines alternative futures of race and the law
Infrastructure Equality
Full text linkThe United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should be conceptualized as foundational to racial equality. The Essay then examines the legal system’s role in advancing this effort and considers the complex legal landscape that infrastructure equality advocates face following the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which restricted race-conscious admissions policies in higher education and may serve as a cornerstone for further retrenchment on racial justice. As traditional legal approaches to identifying and challenging racial exclusion face new obstacles, this Essay argues for a renewed focus on the structural inequities that necessitate such interventions. Indeed, efforts to revive and reimagine race-conscious admissions policies will see limited success if communities of color continue to face the infrastructural inequalities that makes such programs necessary
Military Justice: The Forgotten Jurisdiction in Capital Punishment
Full text linkThe military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. This is particularly concerning for the military because the demographics of its jury pool are predominantly white male. The purported need for deviations from the Sixth Amendment right to trial by jury and deference to the military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country’s history. These concerns of non-representative courts-martial, coupled with the need for heightened reliability in capital cases, warrant a change to Article 118 (the crime of murder) to only allow capital courts-martial for murder if there is a nexus to war or armed conflict
