Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.
Abstract Jailhouse lawyering is a form of resistance against the prison industrial complex that seeks to silence and disappear prisoners. This Essay describes the author’s acts of resistance, or growth as a jailhouse lawyer, from arrest to imprisonment using critical race theory and abolition theory. While it tells one person’s stories, it is both shaped by those who taught him and the...
Abstract Overt gender discrimination, and the combined failure of Louisiana’s Department of Public Safety and Corrections (DPSC) and Louisiana Correctional Institute for Women (LCIW) prison officials to provide offender counsel substitutes in prisons for women (OCS-W) the same quality legal education and training as provided for those incarcerated in prisons for men, are violations of the...
Abstract In this reflection, James Bottomley shares his experience as a formerly barred attorney who is now incarcerated in a California state prison. Bottomley has practiced as a jailhouse lawyer for himself and other incarcerated people in recent years but is now retired from the practice of law. Introduction When I was in jail, depressed that my next destination was the California state...
“The way to right wrongs is to turn the light of truth upon them.”[1] –Ida B. Wells Abstract It is in the spirit of Ida B. Wells that we seek to turn the light upon the systemic racism of hiring practices.[2] We believe these practices are indicators of the systemic failures on campuses and in workplaces that prevent them from being antiracist. We seek to use this Essay as a “tool for exposing...
Abstract Upon assuming the presidency, Joe Biden is likely to enjoy limited congressional support for his legislative agenda. Democrats believe they have a good playbook for this situation: “presidential administration.” Coined by now–Justice Kagan, presidential administration endorses the use of unilateral executive action to advance the president’s policy priorities. We argue that...
Abstract This Essay responds to the execution of Lezmond Mitchell, the only American Indian on federal death row. The execution was carried out on August 26, 2020 over the objection of both members of the victims’ family and the Navajo Nation. This Essay takes the clear position that because the Federal Death Penalty Act of 1994 requires tribal consent to seek the death penalty for murder, or...
Abstract Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The...
Abstract This Essay retells the Dred Scott story as a set of intersecting stories about judicial racism and judicial antiracism. Part I defines racism and antiracism, then discusses how racist and antiracist ideas are realized through government power. Next, this Essay visits one of the most prominent moments of judicial racial history: the story of Dred Scott. Part II walks through the...
Abstract Laws enacting victim impact statements flourished in the 1980s and 90s, a period defined by draconian crime control measures and mass incarceration. During an emerging era of decarceration, the effect of victim impact statements on excessive prison sentences has been largely overlooked. Reshaping retributive laws governing victim impact statements is essential to comprehensive...
Abstract This Article examines the tension between a prospective college student’s First Amendment freedom of speech and a public university’s unenumerated, inchoate right of institutional academic freedom. The friction between these interests was cast in high relief in 2020 when several schools confronted dual issues: (1) whether to rescind offers of admission to individuals who later were...
Abstract During the global pandemic, people around the world are at risk of serious illness and death from contact and proximity to other people. But Indigenous peoples, particularly those in voluntary isolation, have always faced that risk. International organizations have relied on the right to self-determination as the primary legal grounds to justify the principle of no-contact for...
Abstract As with so much else in American life, the COVID-19 crisis delivered a gut punch to our justice system. And the worst is yet to come, as federal and state courts alike are soon to fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. But in truth, our courts were already at a crossroads: chronically underfunded, increasingly...
Abstract The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion...
Introduction Much has been written on how the COVID-19 pandemic has brought longstanding structural inequities into sharp relief. Like in all crises, the effects of the pandemic have not been evenly distributed. Black, Brown, and Indigenous communities have been disproportionately harmed by the virus. Low-wage workers—largely workers of color and immigrant workers—are deemed essential yet...