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School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans
Get PDFIn 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the country, and nearly twenty state legislatures have considered or enacted bans on teaching CRT in K–12 public schools. The problem is, CRT—a legal academic theory contending that American laws and institutions are systemically racist—is not actually being taught in K–12 schools. Anti-CRT crusaders, nevertheless, have primed the American public to equate CRT with perceived anti-white bias. CRT, these activists allege, is being used to indoctrinate school children into hating the United States and feeling discomfort over their own race. The state-level CRT bans, accordingly, prohibit teaching that an individual can be “unconsciously” or “inherently” racist, that an individual “bears responsibility” for racist acts committed in the past, or that an individual should feel “discomfort” on account of their race. Although the CRT bans’ language is facially neutral, it has caused widespread confusion over what subjects can and cannot be taught. Educators allege that CRT bans’ true purpose is to create a “chilling effect” designed to discourage all classroom conversations about systemic racism. Political reporting further suggests that CRT bans were enacted primarily to drum up grassroots support for conservative politicians, rather than to protect schoolchildren. This Note argues that, to the extent that CRT bans further politicians’ careers at the expense of students learning about systemic racism throughout American history, they can and should be challenged in court. Drawing on comparisons to analogous caselaw concerning bans on ethnic studies curricula, this Note advances a novel three-part First Amendment argument to defeat CRT bans. First, a long line of Supreme Court precedent establishes that while local governments have broad discretion to set public school curricula, students’ “right to receive information” cannot be infringed without a “legitimate pedagogical concern.” Second, this Note resolves a longstanding Circuit split in favor of requiring public school teachers to remain viewpoint neutral, and demonstrates that CRT bans clearly discriminate based on viewpoint by adopting a whitewashed view of American history. Third, because CRT bans prevent teachers from leading viewpoint-neutral classroom conversations about systemic racism that might cause “discomfort,” all for a political instead of a pedagogical purpose, students have standing to challenge the CRT bans as a violation of the First Amendment. Although ultimately pessimistic about judges’ willingness to invalidate the democratically-enacted CRT bans, this Note concludes that the bans do deprive students of their First Amendment rights, and therefore must be challenged in federal court
In Defense of (Mental) Hearth and Home: Challenges to § 922(g)(4) in the Wake of New York State Rifle & Pistol Ass’n v. Bruen
No full textIndividually, discussions about mental illness and firearm possession are at the forefront of American discourse. Intriguingly, the intersection of the two issues produces provocative social and legal questions. 18 U.S.C. § 922(g)(4) bans those who have been involuntarily committed to a mental institution from owning a firearm. This ban is an indefinite one. Such indefiniteness supports a conclusion that “once mentally ill, always so.” But the “once mentally ill, always so” mantra is falling out of acceptance today. Therefore, it is logical to conclude that § 922(g)(4) does not best serve its intended function. Congress provided a route for those banned under § 922(g)(4) to restore their rights. But the route comes in the form of an optional program only some states have elected to participate in. Thus, disparities exist based on where § 922(g)(4) citizens live. There is currently a three-way circuit split analyzing Second Amendment arguments against § 922(g)(4). However, the precedent of those circuits is likely no longer good law. On June 23, 2022, the Supreme Court released its New York State Rifle & Pistol Ass’n v. Bruen opinion. The opinion expressly rejected the Second Amendment test used by the circuits and instructed the lower courts to focus on a historical analysis. This Note analyzes the circuit split and what the analysis will likely look like post-Bruen by offering historical evidence of the Founding generation’s view towards those with mental illness. Further, it addresses an equal protection argument (which has not been asserted at the circuit court level yet). It concludes the current system will likely be found unconstitutional post-Bruen. But it offers solutions to create a system that is both constitutional and better serving of societal interests
The Law Enforcement Lobby
Get PDFThe law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby sometimes operates without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that can institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the periphery of contemporary scholarly conversations about the democratization and design of criminal justice institutions. This Article describes and evaluates the influence of the law enforcement lobby on criminal justice policy. It argues that the law enforcement lobby raises unique problems that extend beyond traditional lobbying concerns, including the ability to influence life and liberty, the power to perpetuate racial subordination, and a pervasive power over the operation of democratic institutions. Drawing on the growing calls for democratization and power-shifting in the criminal justice system, this Article offers a range of recommendations to curtail the strength of the law enforcement lobby. First, the Article argues for reforms that “level up” of the power of competing interests that can counter the power of the law enforcement lobby in criminal justice policymaking. In doing so, the Article focuses specifically on reforms that imbed contestation in policymaking by communities most impacted by the criminal justice system. Second, the Article concurrently proposes mechanisms to “level down” the power of the law enforcement lobby, including realistic restrictions on the lobbying capacity of law enforcement interest groups that draws on First Amendment Speech Clause doctrine that permits restriction of public employee speech. Taken together, these reforms could facilitate broader transformation of the American criminal justice system
Bringing Courts into Global Governance in a Climate-Disrupted World Order
Get PDFClimate-driven geophysical and geopolitical shifts are putting increasing pressure on international law and global governance. One window into the challenges and opportunities presented by these ongoing disruptions is provided by a surge of “climate-accountability” cases, which argue that governments and corporations are responsible for addressing climate risks or repairing climate harms. This Article fills a gap in the literature by providing the first theoretical account of the structural role of courts in global governance in these cases and a typology of their functions. The panoramic perspective that I take shows that two extraordinary worldwide shifts are underway: historic applications of many existing, non-climate laws to the facts of our cli- mate-disrupted reality and the emergence of a decentralized yet coherent transnational judicial component of global climate governance, which heretofore had been largely confined to the United Nations Framework Convention on Climate Change regime.
On one hand, the literature on climate cases has yet to pro- vide a theoretical account of their role in global governance structures, instead taking more narrow views by assessing trends, analyzing decisions, developing new arguments, and evaluating the effect of the litigation on governmental and corporate actors. On the other hand, the international law literature on courts’ roles in international governance has yet to engage with climate cases, which, I argue, have distinctive aspects that can be accounted for only with a new theory.
My theoretical account serves two main purposes. First, it provides a conceptual framework for examining the litigation from a global governance perspective. To do that, I start, in contrast to current writing on the litigation, by focusing courts rather than climate. Drawing on decades of scholarship on international and domestic courts’ roles in international law and governance, as well as on international relations and political science, I show that climate litigation has made courts a part of global climate governance and develop both a theory of their governance role—which I call “responsibility-differentiation”—and a typology of its functions. As a result, I build on and provide a bridge between two strands of scholarship—that on courts in international law and governance broadly and that on climate litigation.
Second, I use my theoretical account to offer recommendations for how the litigation should be approached in light of the pathological geopolitical dynamics that have thus far dominated international climate governance. It can—and should—be used to name and help correct, rather than further entrench, the historical injustices of the climate crisis
Labor Relations at the Woke Corporation
Get PDFThis symposium contribution will consider the role of labor relations within the so-called “woke” corporation. Part I will explore the turn in corporate behavior and corporate law theory towards an attention to stakeholders and a larger corporate purpose. Part II examines how this shift in corporate sentiment has not changed the traditional hostility towards the choice of a company’s own workers to unionize. Part III considers how to address this disjunction, both through pressure from the workers themselves and through changes in corporate law, corporate theory, and labor and employment law
Theorizing International Business in Africa: A Roadmap
Get PDFInternational business in Africa is complicated by colonial history, late internationalization, and the growing interest of various foreign powers in Africa and its resources. We share key indicators about African countries and offer a conceptual map to help make sense of this complex scholarly terrain. We distinguish between three types of multinational enterprises (MNEs) operating in sub-Saharan Africa: Advanced MNEs (from high-income previous colonial and non-colonial countries), Emerging MNEs (from middle-income countries both inside and outside the region) and Nascent MNEs (from low-income African countries). We show how these distinct types of MNEs provide different development opportunities, how they engage differently with local, national, regional, and supra-national institutions, and why this matters for international business policy. We show how the papers showcased in this special issue contribute to a deeper understanding of international business in Africa and propose future research directions
An Empirical Constitutional Crisis: When Magistrate Judges Exercise De Facto Article III Power
Get PDFMagistrate judges within the United States district court system have historically been viewed as a means to alleviate the large caseloads faced by district court judges. Magistrate judges issue Reports and Recommendations (R&Rs), wherein they detail the underlying facts, analyze relevant legal issues, and outline a proposed order for district court judges to follow. While district court judges may reject or modify R&Rs submitted to them, district court judges overwhelmingly adopt R&Rs, even after a purportedly de novo determination. In doing so, this Article posits that constitutionally-appointed district court judges are abrogating their Article III constitutionally required role to magistrate judges with little or no oversight. Analyzing R&Rs considered by United States district court judges for the District of Minnesota from 2017 to 2019, this Article finds that magistrate judge R&Rs are affirmed at abnormally high levels, calling into question the constitutionality of the appointment of magistrate judges and their exercise of Article III judicial power. Based on this empirical data, this Article offers a critical assessment of the merits of the present role of magistrate judges and ultimately argues for the existing system’s elimination
