18512 research outputs found
Sort by
Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson
No full textFrank Johnson's landmark opinions in the 1970s recognized prisoners as rights-holders who were entitled to safety, sanitary conditions, health care, actMies, and fair decision-making. In 2020, we take these propositions or granted, just as we also take for granted the power of prisoners to seek-and sometimes to in-judicial help in stopping the state from imposing certain forms of punishment on people convicted of crimes
Queer Sacrifice in Masterpiece Cakeshop
No full textThis Article interprets the Supreme Court's decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell's interest-convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable-such as those who participated in the marriage-equality decisions-than LGBTQ individuals who are less "mainstream" and whose exhibited queerness appear threatening to the heteronormative status quo
Freedom of Expression Within the Schoolhouse Gate
No full textIn the late 1960s, the Supreme Court began contemplating how the First Amendment's commitment to "the freedom of speech" should protect the right of students to introduce their own ideas into the schoolhouse.' This constitutional question extended well beyond the matter addressed in West Virginia State Board of Education v. Barnette, because that opinion-momentous though it was-held simply that students could refuse to recite the Pledge of Allegiance.2 But Barnette did not establish that students possessed an affirmative right to advance their own opinions, on topics of their own selection, much less in the face of school officials' objections. The right to sit out, in other words, did not necessarily confer the right to speak out.
This Article examines the history of student rights to affirmative speech, with a focus on threats facing those rights that appear
on the horizon. First, as it must, this story begins with the Supreme Court's landmark decision in Tinker v. Des Moines Independent
Community School District.3 The Article analyzes the case's background, emphasizes the majority's broad conception of citizenship, and illuminates the opinion's deep doctrinal ambiguity. Turning to the dissent, the Article highlights Justice Black's narrow conception of citizenship, examines possible motivations for his unusually strident opinion, and demonstrates that Justice Black's message resonated more with the American people than did the Court's opinion. By marshaling contemporaneous public opinion data, it becomes clear that Tinker should be understood as an opinion that successfully vindicated constitutional rights in the face of counter-majoritarian opposition.
Second, the Article assesses the strength of Tinker today, arguing that scholars have incorrectly dismissed its continuing significance. Admittedly, the Supreme Court has repeatedly rejected students' speech claims post-Tinker.4 But those decisions should not be mistaken for indicating that Tinker is now a dead letter. After recovering Tinker's contemporary vitality, the Article concludes by identifying two major areas that require renewed judicial attention in the fight to protect student speech rights. A brief conclusion follows
Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court
No full textThe Affordable Care Act (ACA) is back in the Court, but challengers' "textualist" arguments are not textualist at all. They argue a findings section in the ACA is an "inseverability clause," meaning that if the insurance mandate is eliminated, the whole ACA goes down with it. They argue this despite the fact that those findings are specific to one subsection, of one part, of one subtitle, of the ten-title law, and despite the fact that the language they seize on is boilerplate language that Congress often uses not for severability, but to justify its commerce power. Congress expressly tells us that too in the ACA's text. Challengers argue that Congress has explicitly spoken to the issue, but Congress's established drafting practices, and examples throughout the U.S. Code,
make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and uses specific language absent from the ACA. Inseverability is a nuclear bomb. Congress doesn't hide it in mouseholes. There is a burgeoning movement to better understand how Congress drafts laws, one as relevant for textualists as anyone else
Money and Punishment, Circa 2020
No full textMoney has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color. This volume surveys the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that undergird so much of state and local funding. Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color. In the spring of 2020, the stark inequalities of the pandemic’s impact and of police killings sparked uprisings against the prevalence of state-based violence and of government failures. Those protests have underscored the urgent need for profound, sustainable transformations in government systems that have become all too familiar. This volume maps the structures that generate oppressive practices, the work underway to challenge the inequalities, and the range of proposals to seek lasting alterations of expectations and practices so as to shape a social and political order that is respectful of all individuals’ dignity, generative for communities, and provides a range of services to protect safety and well-being
When Prosecution Is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions
No full textIn 1998, a half-century after the Nuremberg trials of Nazi war criminals, a diplomatic conference finalized the Rome Statute of the International Criminal Court (ICC). 1 Only four years later, that treaty entered into force following its ratification by sixty states. The creation of a permanent, global tribunal to prosecute those responsible for the worst international crimes fulfilled a dream kept alive throughout the Cold War
Inability to Pay: Court Debt Circa 2020
No full textCommitments to "access to justice" abound. So do economic barriers that undermine that premise. Fees, costs, fines, money bail, and other financial assessments-levied by courts, jails, and prisons-have become commonplace features of state and federal civil and criminal law enforcement.
Yet the challenges of funding courts and the harms of debt generated through interactions with the legal system have not yet become staples of law school teaching and scholarship. This mini-symposium is one of many efforts to bring to the fore the failures of law to make good on its promises of open courts and equal treatment of civil disputants and criminal defendants. The
Essays that follow contribute to a growing literature mapping the impact of court and prison debt. This mini-symposium, in turn, offers law teachers and students a window into the breadth of research, litigation, legislation, and legal analyses aiming to understand and to stop what have become regressive tax systems that are produced by virtue of court-based fees, fines, assessments, and money bail.
Before detailing more about the Essays that follow, context is needed to show the links between the academy-focused on teaching about courts, procedure, bankruptcy, and criminal law enforcement-and the problems of courts and of the people using them. During the second half of the twentieth century, political and social movements brought into sharp relief inequalities and subordination based on race, class, gender, and many other status markers. Activism and scholarship pushed courts and legislatures to recognize a host of rights and entitlements, ranging from protections of criminal defendants and prisoners to habitable housing, government benefits, and fair treatment in interactions with the state
Beyond the Law: An Agenda for Policing Reform
No full textLegal discussions about how best to manage the use of force by the police have focused on possible changes in the legal standards through which the police are held accountable for their actions-standards established in Graham v. Connor. We argue that such changes are unlikely to change police conduct in desirable ways. The police are currently trained and equipped to manage all the problems they face through the threat or use of coercion even though this approach is a poor fit to most of the issues the police actually deal with in their everyday work. The consequence of this mismatch is that police actions provoke
and intensify conflict in many settings, leading inevitably to instances of the overuse of force. A better solution to the problem of the police use of force is to focus beyond the law on the organization of policing. We propose four approaches for possible reorganizations of the police. The goal of the first two approaches--exiting the social welfare field and collaboration with nonpolicing agencies-is to limit police actions to those situations in which their willingness and ability to compel obedience via force is appropriate. The other two approaches-specialization and civilianization-aim to diversfy the skill set of police so that some members of the department are trained, equipped, and able to be deployed to deal with the variety of problems that can be better handled through a "social welfare" skill set
Health Justice Strategies to Eradicate Lead Poisoning: An Urgent Call to Action to Safeguard Future Generations
No full textDespite over a century of evidence that lead is a neurotoxin that causes irreparable harm, today, lead continues to pervade children’s environments and remains a constant threat to health and wellbeing. One in three homes across the United States housing children under the age of six has significant lead-based paint hazards that place occupants at risk of permanent neurological harm and lifelong poor health risks. Federal, state, and local governments must use a range of primary prevention strategies in order to fully eradicate the risks and protect children from lead poisoning. This Article provides a comprehensive examination of best practices for addressing lead poisoning and proposes urgent reform measures at the local and state levels. Successful interventions ultimately prioritize health justice strategies and rely on community ownership and cross-sector participation; dedicate significant resources and funding to completely eliminate lead in the environment; and prioritize primary prevention practices that identify lead-based paint hazards before children are exposed
Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies
No full textIn Trump v. Pennsylvania,1the Supreme Court faces the question whether the Administrative Procedure Act’s provision governing scope of judicial review instructs courts to give universal injunctions—injunctions telling the government not to apply a challenged agency action to anyone, not just the plaintiff. That provision, section 706 of title 5 of the United States Code, does not direct courts to give universal remedies. It does not address remedies at all. When it says that the reviewing court shall “hold unlawful and set aside” agency action that fails the tests it sets out, section 706 means that courts are not to follow the agency ac-tion in deciding the case.2The APA addresses remedies, not in section 706, but in section 703. Section 703in turn points to the remedies law as-sociated with the forms of proceeding for judicial review that it identifies