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W&L Law Library Newsletter, Vol. 2, Iss. 2 (Apr. 2023)
Get PDFW&L Law Library Newsletter, Volume 2, Issue 2 (April 2023).https://scholarlycommons.law.wlu.edu/llnewsletter/1003/thumbnail.jp
From Natchitoches to Nuremberg: The Life of Legal Pioneer Lyria Dickason
Get PDFLyria was one of a small handful of women who graduated from a Louisiana law school in the 1930’s. Despite the employment barriers facing female attorneys, she went on to become one of the first female law clerks in both the federal and state judiciary. To date, Lyria’s story has not been told. I have recently discovered, however, that Lyria’s children and grandchildren preserved her letters to her family. They are a treasure trove of information about a woman whose career took her from rural Louisiana to Louisiana’s highest court as well as the post-war ruins of Nazi Germany. The letters provide a rare glimpse into long-past moments in history, including the career of a woman who worked to establish herself in the male-dominated legal profession. And the correspondence introduces us to a woman whose humor, sense of adventure, and love of family are evident on every page
Speculative Immigration Policy
Get PDFThis Article considers how speculative fiction was wielded by the Trump administration to implement destructive U.S. immigration policy. It analyzes the thematic elements from a particular apocalyptic novel, traces those themes through actual policy implemented by the president, and considers the harm effected by such policies. This Article proposes that the harmful outcomes are not due to the use of speculative fiction, but rather the failure to consider the speculative voices of those who have been historically marginalized within the United States. This Article argues that alternative speculative visions could serve as a platform for radical imagination about future U.S. immigration policies. In doing so, it offers a safe space for policymakers and others to consider ideas that might be far outside their normal political or social circles. For instance, speculative fiction creates an opportunity to engage with ideas that might otherwise be third rails such as the abolition of various policing forces, critiques of sovereignty, and open borders. Speculative fiction can, therefore, provide a secure realm within which one can be free to explore ideas that they might otherwise feel prohibited from considering. Here, this Article proposes that engaging with speculative fiction written by authors from marginalized backgrounds can help to shift both individual and institutional perceptions about what bold reconstructive policy changes might be possible.
First, this Article analyzes the use of Jean Raspail\u27s The Camp of the Saints by the Trump administration as an ideological foundation for its harmful immigration policies. This xenophobic, speculative fiction novel envisions the demise of Western civilization at the hands of mass migration. Second, this Article promotes the idea that speculative fiction can be useful and generative for imagining new immigration policies in the United States. Specifically, this Article claims that the experience of the COVID-19 pandemic created a nationwide (if not worldwide) sense of apocalypse. Such a collective experience provides an opportunity for universal reconsideration of historical policy norms, particularly those involving immigration. Finally, this Article notes that it is essential that these alternative visions be sourced from oppositional storytellers, to use Richard Delgado\u27s phrase. Examples abound: W.E.B. DuBois\u27 The Comet and legal scholar Derrick Bell\u27s The Space Traders. This Article offers additional visions: Waubgeshig Rice\u27s Moon of the Crusted Snow, Omar El Akkad\u27s American War, and Octavia Butler\u27s Parable of the Sower as examples for reframing conceptions of \u27apocalypse\u27 from the viewpoint of the marginalized in Western culture. This Article concludes that, while notions of abolition and other taboo progressive policy proposals may seem apocalyptic to some, this apprehension is based in fear of the unknown. By crafting specific speculative visions, these authors, as well as others, can make clear that such radical imagination in crafting humane policies can produce a knowable future that is both manifest and necessary
Allow Me to Transform: A Black Guy’s Guide to a New Constitution
Get PDFElie Mystal’s Allow Me to Retort: A Black Guy’s Guide to the Constitution works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, while others have provided an introduction to constitutional law as a field. Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The result is a guidebook to recognizing, applying, and navigating the Constitution in its intersections with our daily lives
Taking the Knee No More: Police Accountability and the Structure of Racism
Get PDFFrom before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through recognition that the current system achieves the objectives for which it was designed. These objectives must change
Higher Education Redress Statutes: A Critical Analysis of States’ Reparations in Higher Education
Get PDFThis Article introduces a novel concept, higher education redress statutes (“HERS”), to illustrate efforts that acknowledge and amend past wrongs towards African Americans. More proximally, the Article shines a probing light on the escalation of HERS in southeastern states that serve as a site for state regulation and monitoring. The Author exposes how higher education redress statutes, designed to provide relief or remedy to Black people for states’ higher education’s harm, categorically ignore groups of Black people who rightfully should also be members of the statutorily protected class. This Article queries whether legislators can expand the scope of such statutes and reveals the myriad ways in which higher education redress statutes now serve as tools for aiding in the erasure of the higher education industry’s culpability and complicity in slavery, degradation, and discrimination toward Black people. As such, this Article shows the growing hostility toward Black people’s contribution to the higher education industry and states’ unwillingness to offer redress efforts inclusively, broadly, and robustly. This Article serves as a platform for recognizing Black people’s harm and hurt and the degree to which that recognition has been undermined by the states’ disparate treatment of their humanity. Lastly, this Article proffers recommendations to activists, legislators, and other relevant stakeholders regarding the enforcement and promulgation of more comprehensive and inclusive higher education redress statutes
Editor\u27s Note
Get PDFTo commemorate the accomplishment of abolition and to look back at Virginia’s long and complicated history with the death penalty, the Journal of Civil Rights and Social Justice’s 2021–2022 Symposium titled Revoking Irrevocable Punishment centered around Virginia’s long, complex, and sorrowful path toward abolition. From February 10 to February 11 of 2021, the Journal organized and moderated seven panels that addressed various components of the death penalty discourse in Virginia, past and present
The Court and Capital Punishment on Different Paths: Abolition in Waiting
Get PDFThe American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s. The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction.
This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment is withering in practice, the prospects for constitutional abolition via judicial decree have also decreased substantially, as the U.S. Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive regulation – even judicial abolition – of American capital punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual” punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced “abolition in waiting” – a marginalized practice that will remain on the books until changes in the composition of the Court permit reassessment of the death penalty’s constitutionality
Federal Common Law, Climate Torts, and Preclusion
Get PDFMunicipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all the Courts of Appeals have rejected this theory, finding that removal on federal common law grounds is improper and remanding to state courts. But herein lies the problem. On remand, nothing stops the state courts from adopting the defendants’ theory. Essentially, the defendants are permitted to relitigate their preemption argument after a federal court holds that federal law does not apply.
This Note argues for the adoption of a new rule of preclusion that would apply in these cases. Where a federal court determines that federal law does not cover the claims, that judgment should have issue preclusive effect in a subsequent state court proceeding on an ordinary preemption defense. This is because a finding of no jurisdiction by a federal court necessarily entails a finding that federal law does not cover, and thus preempt, the state law claims. This rule would serve to simultaneously preserve the balance of federalism, keeping state claims in state courts and allowing only federal claims in federal courts, as well as preventing dismissals on inconsistent judgments. This rule would also preserve a fundamental notion of justice in the American legal system; it would allow the climate tort plaintiffs to finally have their day in court