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The Character of Jury Exclusion
Get PDFEncounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury trial. In practice, however, conclusory judgment of jurors’ presumed partiality in these cases does not reduce bias but instead reproduces it. Dismissing jurors with previous contact with—and negative experiences with—the legal system diminishes the diversity of our juries and contributes to the entrenchment of structural bias skewed along racial and socio- economic lines. This Article elucidates this problem and outlines reform. It proposes the application of an evidentiary objection to the jury selection context, drawing on the principles of Federal Rule of Evidence 404(a)’s character propensity prohibition. By introducing a character propensity trial objection to voir dire, lawyers would gain a tool—one that complements but goes beyond the Batson challenge—to prevent the imputing of unfounded yet disqualifying character traits to otherwise eligible prospective jurors. In making the case for this reform, the Article demonstrates how targeting judicial discretion, rather than juror bias, can curtail the use of seemingly innocuous juror challenges—and with them, a source of perhaps unintended but no less pernicious exclusion from the jury system
The Banality of Evil (?): The Strange(ly Quiet) Careers of Korematsu and Hirabayashi in the Federal Circuit Courts, 1943‐2016
Get PDFKorematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme Court cases associated with the tragic internment of Japanese Americans during World War II, now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the worst constitutional law train-wrecks of American legal history. Ironically, American courts and judges also used the two towering internment cases for their resounding language supporting racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over America’s legal landscape. Thus, it may be somewhat surprising to discover that these two cases long led rather mundane and limited precedential lives in the federal circuit courts, serving repeatedly as precedents in ordinary cases concerning everyday applications of criminal procedure doctrines and displaying little of the brightly hopeful or darkly ominous power for which they would later be known. Whatever greater potential the two cases held, a careful tracking of all uses of the cases in court opinions shows that federal circuit courts mostly did not explore that potential until after it was “safe” to do so. In particular, although the Japanese Internment was fundamentally a legal and constitutional problem, federal courts proved to be largely unable to confront that problem meaningfully until after some sort of political “solution” was offered by Congress through formal apology and reparations to internment survivors in 1988. Only later did federal circuit judges use the two cases more aggressively, with Korematsu suddenly serving as a dire warning of the dangers of judicial reticence in resisting constitutional overreaching by the legislative or executive branches, while Hirabayashi was brandished to support strict, color-blind racial equality—long after civil rights progress was already waning
What Does a Corporation Owe?: The Scope of Obligations in International Investment Counterclaims
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Crowded at the Top: An Empirical Description of the Oligopolistic Market for International Arbitration Institutions
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Killing the Motivation of the Minority Law Professor
Get PDFThis Essay hypothesizes that a significant number of minority junior scholars with radical or non-normative ideas forego those projects or mute them to fit their work within the dominant paradigm of legal scholarship. Even those who move forward and publish their radical or non-normative proposals spend significant time attempting to overcome internal and external resistance, negotiating with mentors, and finding ways to make the radical seem palatable. This disproportionately harms the productivity of minority law professors, not only through inefficiency, but also through the long-term destruction of intrinsic motivation that is vital and overlaps with successful, fulfilling, and productive careers. To counteract some of these stifling effects, this Essay proposes several ways in which universities and the legal academy can support radical and non-normative scholarship
Unprotected but Not Forgotten: A Call to Action to Help Federal Judiciary Employees Address Workplace Sexual Misconduct
Get PDFFederal judiciary employees are not currently protected by Title VII of the Civil Rights Act of 1964—the federal statute that prohibits workplace discrimination, retaliation, and harassment based on, among other things, a person’s sex. In effect, this means federal judiciary employees are not adequately protected from sexual misconduct. Like any workplace, however, sexual harassment is a persistent issue within the federal judiciary, and the current mechanisms to address the abuse are inadequate. This Note explores the federal judiciary’s sexual misconduct problem and critiques the only two mechanisms through which a federal judiciary employee can address workplace sexual harassment: the Judicial Conduct and Disability Act, and the Employment Dispute Resolution program. In demonstrating the deficiencies of both mechanisms, this Note exhibits how federal judiciary employees are extremely vulnerable to a systemic sexual abuse of power by judges and other judiciary officials. The prevalence of sexual misconduct in the federal judiciary, lack of Title VII protections, and failures of current working avenues to address the misconduct necessitate finding a better solution. Finally, this Note proposes two solutions that should be pursued together, given their deficiencies on their own: (1) to expand Title VII’s protections to federal judiciary employees; and (2) to permit federal judiciary employees to bring implied causes of action through Bivens under the Fifth Amendment to assert their right to be free from sexual misconduct. Both proposals would not only provide federal judiciary employees with workplace protections available to employees in other employment contexts, but they would—more importantly—also ensure that no one in the federal judiciary is treated as above the law