CategoryPrint

March 1, 2021

The (Un)Holy Shield: Rethinking the Ministerial Exception

By Jeremy Weese
In Print
March 1, 2021
2 Min read
01March

Abstract Does the First Amendment’s protection of religious expression mean religious organizations are free to discriminate on the basis of sex, disability, or race in hiring and firing employees? In 2012, the Supreme Court answered this question with a unanimous yes, finding that religious organizations are immune from liability for discriminating against their employees, as long as those...

March 1, 2021

Bad Characters and Desperados: Latinxs and Causal Explanations for Legal System Bias

By Cynthia Willis-Esqueda, Ph.D.
In Print
March 1, 2021
2 Min read

Abstract Although there is a long history of prejudice and discrimination against Latinxs within the U.S. legal system, there is a dearth of research seeking to understand the causal underpinnings of the biased decisionmaking that works against them. While this Article discusses the experience of those who identify as Latinx broadly, in several areas it pays special attention to the experience of...

March 1, 2021

The Last Resort: Tourism Development on Garífuna Territories in Honduras Through the Lens of Structural-Dynamic Intersectionality

By Astghik Hairapetian
In Print
March 1, 2021
3 Min read

Abstract This Comment analyzes the gaps in protection the Garífuna have experienced both in the Inter-American Court of Human Rights (IACHR) and the U.S. asylum system, taking two cases as case studies. It argues that, in the face of increasing tourism development, the Afroindigenous Garífuna community is positioned at an intersection between the structures of a neoliberal economic model on one...

March 1, 2021

Supremacy, Inc.!

By David Rubenstein
In Print
March 1, 2021
2 Min read

This Article opens a new area of study at the intersection of federalism and privatization. The Supremacy Clause was designed to resolve inevitable conflicts between two sovereign powers. It was not designed for the triangulated clashes amassing in our privatized era—between states and private actors doing federal work.

December 13, 2020

Deploying Race, Employing Force: ‘African Mercenaries’ and the 2011 NATO Intervention in Libya

By Katherine Fallah & Ntina Tzouvala
In Print
December 13, 2020
1 Min read
13December

This Article reflects on the ongoing synergies between international law, race, and empire, as they are articulated in the regulation of mercenarism. It does so by examining the role of the racialized and gendered narratives about “African mercenaries” in the context of the UN Security Council authorization of the 2011 NATO intervention in Libya.

December 13, 2020

The Civil Rights of Health: A New Approach to Challenging Structural Inequality

By Angela P. Harris and Aysha Pamukcu
In Print
December 13, 2020
1 Min read

An emerging literature on the social determinants of health reveals that subordination is a major driver of public health disparities. This body of research makes possible a powerful new alliance between public health and civil rights advocates: an initiative to promote the “civil rights of health.” Understanding health as a matter of justice, and civil rights law as a health intervention, has...

November 19, 2020

“Blurred Lines” to “Stairway to Heaven”: Applicability of Selection and Arrangement Infringement Actions in Musical Compositions

By Emily Ranger-Murdock
In Print
November 19, 2020
2 Min read
19November

In 2015, the “Blurred Lines” verdict catapulted the issue of music copyright infringement into the news. The Ninth Circuit upheld the jury verdict in favor of the Marvin Gaye estate in 2018, shocking the legal and music communities who worry that songwriters can now copyright a vibe. Typically, copyright infringement occurs if someone copies a “substantial” amount of original and protected...

November 3, 2020

“You Write in Cursive, I Write in Graffiti”: How #BlackLivesMatter Reorients Social Movement Legal Theory

By Sean Flores
In Print
November 3, 2020
2 Min read
03November

This Comment compares and contrasts: (1) analyses and recommendations posited by longstanding Constitutional scholars discussing social movements, with (2) the efforts and achievements by the Black Lives Matter movement. Using the scholarship of Jack Balkin and Reva Siegel as examples, this Comment argues that their prescriptions for social movements that seek to affect changes in constitutional...

November 2, 2020

How Not to Lie About Affirmative Action

By Sherod Thaxton
In Print
November 2, 2020
2 Min read
02November

This Article empirically examines the six primary deficiencies impacting extant research on affirmative action in law schools and highlights how inattention to—and sometimes outright disregard for—these issues continues to muddy the debate over affirmative action.

September 28, 2020

The Law & Politics of Cyberattack Attribution

By Kristen E. Eichensehr
In Print
September 28, 2020
2 Min read
28September

Attribution of cyberattacks requires identifying those responsible for bad acts, prominently including states. To guard against baseless or false attributions, this Article argues that states should establish an international law requirement that public attributions of state-sponsored cyberattacks must include sufficient evidence to enable cross-checking or corroboration of the accusations.

September 28, 2020

The Hollowed Out Common Law

By Florencia Marotta-Wurgler & Samuel Issacharoff
In Print
September 28, 2020
3 Min read

We measure the evolution of the common law using a comprehensive data set of cases regarding the enforceability of online consumer contracts. We find a steady decline in the number of cases adjudicated in state courts relative to federal courts, and a parallel rise in class actions migrating to federal courts. Erie notwithstanding, the common law is driven by federal court decisions, building...

September 28, 2020

Codification and the Hidden Work of Congress

By Jarrod Shobe
In Print
September 28, 2020
2 Min read

This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and even fails to make it into textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to...

September 28, 2020

"Sociological Gobbledygook”: Gill v. Whitford, Wal-Mart v. Dukes, and the Court’s Selective Distrust of “Soft Science"

By Kyle Reinhard
In Print
September 28, 2020
2 Min read

Abstract In the last decade, the Supreme Court has heard a number of high-profile cases holding potential for major progressive reform which hinge crucially on the Justices accepting, or at least not rejecting, the findings of social science experts. Time and again, however, the Court has found ways to ignore, minimize, or misconstrue the work of highly-qualified social scientists, with Chief...

July 26, 2020

Racist Stereotype Threat in Civil Rights Law

By Kim Shayo Buchanan and Phillip Atiba Goff
In Print
July 26, 2020
2 Min read
26July

Abstract Racist stereotype threat (RST) describes a concern experienced by many people in interactions which are racially fraught: It arises when a person anticipates being evaluated, or sees an ingroup member being evaluated, in light of a stereotype that their group is racist. Because white people are more likely to anticipate being stereotyped as racist, RST is particularly common for white...