Civil-Rights Law
Lessons from the Suffrage Movement in Iran
The women’s suffrage movement in Iran achieved the vote in 1963, several decades after women in the United States. The challenges and opportunities in Iranian women’s fight for equal rights offer insight into the complex and often fraught politics of calling for women’s rights and participation in a non-Western context.
Reconstituting the Future: An Equality Amendment
A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.
Disparate-Impact Liability for Policing
This Note develops the first analysis of the Safe Street Act’s (SSA’s) antidiscrimination power and argues that the SSA imposes disparate-impact liability on police departments. When conventional legal tools have proven inadequate in curbing disparate policing, the SSA presents an unrecognized path toward police reform.
Bias In, Bias Out
The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment in our criminal justice system.
The Claims of Official Reason: Administrative Guidance on Social Inclusion
Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally relevant reliance interests.
Disparate Impact, Unified Law
Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems and preserve section 2.
A Response to Justice Goodwin Liu
Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
State Courts and Constitutional Structure
Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: The Making of American Constitutional Law.
The New Jim Crow Is the Old Jim Crow
A vast divide exists in the national imagination between the racial struggles of the civil rights era and those of the present. Drawing on the work of Elizabeth Gillespie McRae and Jeanne Theoharis, this Review argues that complexifying this oversimplified history is critical to contemporary racial equality work.
The Effort to Reform the Federal Criminal Justice System
This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future reforms.
Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations
This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional-approval process that informs applicants whether the bar intends to admit them before they begin law school.
What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence
Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of a just prison sentence.
Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu
This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the doctrine under a new name.
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity with Korematsu.
Masquerading Behind a Facade of National Security
What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundamental democratic liberties.
This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity
Asserting the continued usefulness of legal claims, this Essay asks a critical question: what would it really take to overturn Korematsu and end structures of subordination? It argues that a true overruling of Korematsu requires a generative interpretation of our Constitution to uphold the inherent dignity of all human beings.
Securing Public Interest Law’s Commitment to Left Politics
Through an analysis of the challenges facing the “new working class,” this Essay argues that in order to advance their clients’ interests, progressive lawyers must redefine public interest law such that it centers on a commitment to developing left political power.
Beyond the Box: Safeguarding Employment for Arrested Employees
Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.
Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.