Tuesday, June 27, 2023
Our amazing community of clinical professors continues to produce excellent scholarship. We are so thrilled to share the 2022 publications submitted to our annual scholarship round-up. Congratulations to all the authors!
Asylum & Immigration
Nermeen Arastu, Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations, 35 Harv. Hum. Rights J. 47 (2022). The empirical study discussed in this Article—the largest-of-its-kind quantitative study of over 2,500 cases in which Physicians for Human Rights (“PHR”) facilitated medical evaluations on behalf of immigrants—found that 81.6% of individuals who received a forensic medical evaluation between 2008 and 2018 experienced some form of a positive immigration outcome. In comparison, immigration adjudicators only granted relief to asylum seekers an estimated 42.4% of the time overall during this same period.
The significant impact of forensic medical evaluations in contributing to a favorable immigration outcome raises questions about whether adjudicators are holding immigrants to overly-stringent evidentiary standards by constructively creating norms that require immigrants to gain access to health professionals with the requisite training to evaluate them. To the extent such evaluations become essential to the successful outcome of the legal case, access to a medical evaluator may indeed translate into access to justice.
Matthew Boaz, Practical Abolition: Universal Representation as an Alternative to Immigration Detention, 89 Tenn. L. Rev. 199 (2021). By demonstrating that the provision of counsel and other wrap around services is significantly less costly than immigration detention, while also showing that providing counsel and wrap around services is an extremely effective way to ensure compliance, this Article hopes to demonstrate appeal for such a proposal to those who may not typically align with an abolitionist ethic.
Matthew Boaz, Speculative Immigration Policy, 37 Geo. Immigr. L.J. ___ (forthcoming 2023). This Article considers how speculative fiction was wielded by the Trump administration to implement destructive U.S. immigration policy. It proposes that the harmful outcomes are not due to the use of speculative fiction, but rather the failure to consider the speculative voices of those who have been historically marginalized within the U.S. This Article argues that alternative speculative visions could serve as a platform for radical imagination about future U.S. immigration policies.
Gillian Chadwick, The Noncitizen Parent Trap, 71 Kan. L. Rev. ___ (forthcoming 2023). This piece focuses on the legal quagmire facing many noncitizen parents who become embroiled in litigation over the custody of a child they have in common with an abusive U.S. citizen coparent. A web of immigration and family law can keep noncitizen parent victims of abuse stuck in a kind of “noncitizen parent trap.” Such individuals are unable to maintain lawful immigration status and unwilling to depart from the U.S. because doing so would mean abandonning their child and jeopardizing their parental rights. This problem highlights key gaps at the intersection of immigration and family law which leave the most vulnerable noncitizens most at risk of losing their immigration status, their children, and their rights.
Linus Chan, with Christopher Lavasque and Kimberly Horner, Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice, __ Alb. L. Rev. ___ (forthcoming 2023). This article draws from 35 semi-structured interviews conducted between August and December 2021 to understand how removal defense attorneys strategically navigate the shifting landscape of the US immigration court system. We argue that deportation proceedings represent a distinct form of punishment for non-citizens: first within the court process itself, and once again in the judge’s final decision. Critical to our study is examining how this punitive nature of the deportation process prompts removal defense attorneys to act in ways that often diverge from representation strategies in the misdemeanor criminal court system. Our findings suggest that formalized legal options in immigration proceedings are limited and put pressure on the legal process, which results in lawyers employing time-based strategies with an aim to arrive at better results for their clients. Interviews detail how and why removal defense attorneys often strategically increase exposure to the deportation process or conversely find ways to help their clients exit the legal process as quickly as possible. We also illustrate how attorneys’ time-based strategies fluctuate with the political ebb-and-flow of immigration enforcement, examining how the cultural and procedural norms of the immigration court process make it difficult for non-citizens to receive substantively just outcomes. In the article’s conclusion, we discuss our findings’ broader contribution to the argument that U.S. immigration law lacks fairness so long as it resides within the pillars of criminal justice, punishment, and exclusion.
Richard Frankel, Risk Assessment and Immigration Court, 79 Wash. & Lee L. Rev. ___ (forthcoming 2023). This article suggests that risk assessment or algorithmic tools could be used in the context of immigration bond decisions. While risk assessment tools carry risks of racial bias, inaccuracy, and questionable transparency, the article asserts that many of these flaws already exist to the same or greater degree in the current immigration detention system. At the very least, experimentation with risk assessment could enable data gathering and study for improving the currently broken bond system.
Natalie Nanasi, with Dr. Daniel Saunders, Dr. Tina Jiwatram-Negrón, and Dr. Iris Cardenas, Patriarchy’s Link to Intimate Partner Violence: Applications to Survivors’ Asylum Claims, Violence Against Women, SAGE, 2022. Eligibility for asylum for survivors of intimate partner violence (IPV) has recently been contested. This article summarizes social science evidence to show how such survivors generally meet asylum criteria. Studies consistently show a relationship between patriarchal factors and IPV, thereby establishing a key asylum criterion that women are being persecuted because of their status as women. Empirical support is also provided for other asylum criteria, specifically: patriarchal norms contribute to state actors’ unwillingness to protect survivors and survivors’ political opinions are linked to an escalation of perpetrators’ violence.
David B. Thronson, with Veronica T. Thronson, Immigration Issues—Representing Children Who Are Not United States Citizens, in Child Welfare Law And Practice: Representing Children, Parents And State Agencies In Abuse, Neglect And Dependency Cases (Josh Gupta-Kagan, LaShanda Taylor Adams, Melissa Cater, and Vivek Sankaran eds., 4th ed., National Association of Counsel for Children, 2022). This book chapter addresses immigration remedies for children, including Special Immigrant Juvenile Status and the new regulations from 2022, VAWA, U and T status, DACA, and prosecutorial discretion. It addresses issues raised in family court during custody and adoption proceedings of children who are not U.S. citizens.
Veronica T. Thronson, Affidavits are Forever: Public Charge, Domestic Violence, and the Enforceability of Immigration Law’s Affidavit of Support, 41 Yale L. & Pol’y Rev. 69 (2022). Affidavits of support were designed for the government’s benefit. They shift responsibility from the public to individual sponsors who have agreed to take responsibility for support. While this concept is not inherently objectionable, it has been implemented in a manner that fails to account for the prevalence of domestic violence and provide any ameliorative response to those subjected to violence. Litigation to enforce these affidavits is increasingly common in both state and federal courts. This article explores the federal legislation that created and implements affidavits of support and the case law that has rigidly rejected appeals for equitable adjustments in enforcement.
Alicia E. Plerhoples, ESG & Anti-Black Racism, 24 U. Pa. J. Bus. L. 909 (2022). This paper catalogs corporate efforts to navigate racial inequality, placing those efforts in the context of ESG—environmental, social, and governance—initiatives. In the wake of George Floyd’s murder, racial equity audits were the topic of numerous shareholder proposals during the 2021 proxy season, with none being successful. Rather than allow companies to set the terms of their own racial equity initiatives, I argue that the U.S. Securities Exchange Commission should step into the role of regulator of ESG accounting and auditing firms to oversee and regulate the quality, ethics, integrity, and independence of ESG audits, including racial equity audits.
Jabeen Adawi, Changing Every Wrong Door into the Right One: Reforming Legal Services Intake to Empower Clients, 29 Geo. J. on Poverty L. and Pol’y 361 (2022). It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. This paper argues that the process to find an attorney is unintentionally riddled with invisible barriers that more closely resemble red-tape bureaucracy than the client empowerment that poverty law desires. I highlight four flaws in how legal service intakes are implemented. I examine the consequences of these flaws in the context of client empowerment. I argue that the combination of these barriers in one process actually disempower clients and prevent them from accessing the services they need. Finally, I highlight one solution: a collaborative intake and triage model that was piloted in Washington, D.C. to service crime victims. I explore how this model addresses some of these barriers and how it may be a blueprint for much-needed legal services delivery reform.
Madalyn K. Wasilczuk, The Racialized Violence of Police Canine Force, 111 Geo. L. J. ___ (forthcoming 2023). This Article argues that canine policing descends from United States settler colonialism, chattel slavery, and militarism and lays out how courts have interpreted the Fourth Amendment to give police dogs as weapons too long a leash.
Clinical Education and Legal Education
Claudia Angelos, with Mary Lu Bilek and Joan Howarth, The Deborah Jones Merritt Center for the Advancement of Justice, 82 Ohio St. L.J. 211 (2022). In this article we engage in and invite a radical reimagination of legal education. Our vision is grounded in community, social justice, antiracism, and the lived experiences of students. We reject divisions among teachers of doctrine, theory, and practice and embrace the participation of community social justice lawyers. Doctrine is taught in problem-based modules. From the beginning students engage in clinical work in law school and community partner practices with increasing responsibility for clients. We imagine a law school in which there is no longer a subcategory of clinical professor because there is no longer anything else.
Jeffrey R. Baker, The Community Justice Clinic at Pepperdine Caruso School of Law, 17 Cal. Legal Hist. 7 (2022). This article is a contribution to the California Legal History journal in its volume devoted to law school clinics in California. The journal invited articles to commemorate the progress of innovative experiential and clinical education in California law schools. This article shares the story and work of the Community Justice Clinic in context of the longer history of the legal clinics at Pepperdine Caruso Law, including brief histories of each clinic at the law school.
Andrew C. Budzinski, Clinics, the Cloud, and Protecting Client Data in the Age of Remote Lawyering, Clinical L. Rev. 1 (2023). Clinic supervisors have an ethical obligation to understand how legal technology works, how it can facilitate client representation, and the risks it poses to the confidentiality of clients’ electronically-stored data. This article outlines the potential ethical pitfalls relating to client data in law school clinics, raises ways that clinics may be falling short of their ethical obligations, and outlines the practical steps needed to come into compliance.
Julia Hernandez, with Tarek Z. Ismail, Radical Early Defense Against Family Policing, 132 Yale L.J. 659 (2022). What possibilities arise when law-school clinics experiment in challenging a well-oiled system at its untouched margins, within a collective, community-based movement whose lodestar is abolition? This Essay examines this question in the family-policing context and articulates a radical vision of family defense in subjudicial venues.
Ascanio Piomelli, Toward A Broader Vision of Lawyering - Community Group Advocacy & Social-Change Lawyering Clinic, 17 Cal. Legal Hist. 179 (2022). Discussion of UC Hastings (now UC Law SF) Community Group Advocacy & Social-Change Lawyering Clinic in issue on "Legal History in the Making: Innovative Experiential Learning Programs in California Law Schools." Explores student take-aways from course on rebellious/democratic/movement lawyering.
Jeffrey R. Baker, Legal Foundations for the Business of Incarceration, in The Business of Incarceration: Theological and Ethical Reflections on the Prison-Industrial Complex (Justin Bronson Barringer, Sarah Farmer, James McCarty, eds., Cascade, forthcoming 2023). This is a draft of a chapter in the forthcoming book, The Business of Incarceration: Theological and Ethical Reflections on the Prison-Industrial Complex. This chapter will be one of three in a larger section, Theological and Ethical Foundations, that will frame issues of mass incarceration and the prison-industrial complex in the United States. This is a descriptive chapter to explain and explore the laws and legal systems in which mass incarceration and the business of incarceration exist.
Amber Baylor, Unexceptional Protest, 70 UCLA L. Rev. ___ (forthcoming 2023). Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large-scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as anti-protest expansions of public order legislation. This Article examines the construction of mass protest law exceptionalism and advocates for using resistance frameworks, such as joyful protest, to better understand the burdens and consequences borne by communities. This analysis incorporates text of recent mass anti-protest legislation, proponents’ arguments in media, and debate in legislative sessions. This framing exposes the lack of exceptionalism, surfaces the thin line between mass protest and everyday public order regulation in targeted communities, and demonstrates the high stakes of ignoring this blurred line when considering mass anti-protest criminal laws.
Jill C. Engle, Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies, 79 Wash. & Lee L. Rev. 1045 (2022). This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused harm. Although transformative justice has developed outside the legal system, its principles and methods are targeted toward the unique, often intangible harms experienced by sexual violence survivors. Therefore, transformative justice remedies should be available alongside and inside the legal system so survivors, their impacted communities, and those who cause harm can benefit from them.
Vida Johnson, White Supremacy’s Police Siege on the United States Capitol, 87 Brook. L. Rev. 557 (2022). On January 6, 2021, law enforcement failed the people and the institutions it was supposed to protect. This article explores how white supremacy and far-right extremism in policing contributed to the insurrection at the Capitol. Police officers enabled the siege of the Capitol, participated in the attack, and failed to take seriously the threat posed by white supremacists and other far-right groups. The debacle is emblematic of the myriad problems in law enforcement that people of color, scholars, and those in the defund and abolitionist movements have been warning about for years. Police complicity in the attack on the Capitol has shown that the infiltration of police departments by white supremacists and far-right extremists has made the country less safe. This article illustrates how these problems in policing, exposed on January 6, harm people of color, and proposes solutions to reform policing in the United States.
Eleanor Morales, with John Brooker, Restoring Faith in Military Justice, 55 Conn. L. Rev. 77 (2022). The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system and in response, enacted sweeping legislative reform. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military leaders also broaden the underlying criteria upon which their recommendations and decisions are made. This Article proposes an innovative framework to assist military leaders in implementing a holistic approach to decision-making.
Anna VanCleave, The Myth of Heightened Standards in Capital Cases, ___ U. Ill. L. Rev. ___ (forthcoming 2023). This article examines courts’ application of the mandate of “heightened standards” in capital cases and the disconnect between the language used by courts and the substance of the legal analyses. This review shows that (1) courts routinely use the language of “heightened” standards while applying the same legal tests that are used in non-capital cases; and (2) some courts use the “heightened reliability” requirement to justify lesser procedural protections than those applied in noncapital cases.
Madalyn K. Wasilczuk, Developing Police, 70 Buff. L. Rev. 271 (2022). This article argues that the minimum age for police officer hiring should be increased due to emerging adult officers' developmental capacities.
Madalyn K. Wasilczuk, For Their Own Good: Girls, Sexuality, and State Violence in the Name of Safety, 59 Cal. W. L. Rev. ___ (forthcoming 2023). This article applies a critical lens to status offenses as raced and gendered exercises of state violence best understood as interwoven with the history of civilly committing and incarcerating women for promiscuity and other deviations from social norms.
Madalyn K. Wasilczuk, South Carolina Deaths Behind Bars, (Incarceration Transparency) (2023). A report documenting deaths in carceral facilities in South Carolina.
Disability & Health Law
Genevieve Mann, It’s Not OK, Boomer: Preventing Financial Power-of-Attorney Abuse of Elders, 82 Md L. Rev. 181 (forthcoming 2023). This Article posits that the rise in elder financial exploitation due to power-of-attorney abuse demands a more robust and creative framework. The federal legislative response has been anemic; despite passage of the Elder Justice Act, which established a collaborative approach to protective services, the mandate has remained woefully underfunded. To prevent elder financial exploitation, a multi-disciplinary infrastructure should be bolstered with necessary oversight and protection measures. In particular, the model should be enhanced with agent supervision and a centralized power-of-attorney registry to increase detection and prevention, while not overburdening agents or elders. It is no longer adequate to allow unregulated power-of-attorney use while a growing number of elders remain at risk.
Medha D. Makhlouf, Charity Care for All: State Efforts to Ensure Equitable Access to Financial Assistance for Noncitizen Patients, 23 Houston J. Health L. & Pol’y ___ (forthcoming 2023). Non-profit hospitals have long been required to provide certain benefits to the community in which they reside in order to maintain tax-exempt status. The nature of these community benefits has evolved since the mid-twentieth century, but “charity care”—free or discounted care for patients who are unable to pay for it—is the quintessential hospital community benefit. Although the Patient Protection and Affordable Care Act of 2010 (ACA) extended eligibility for subsidized health coverage to many more people living in the United States, some noncitizens—including those without a valid immigration status—were excluded. This Article explores the development of prohibitions against discrimination on the basis of immigration status in hospital charity care programs in certain states and the relative inaction by the majority of the states and the federal government. When non-profit hospitals exclude patients from charity care on the basis of immigration status, they contribute to health care inequity among noncitizens—the population in the United States least likely to have access to health care. These actions contravene the longstanding tradition of non-profit, tax-exempt hospitals providing benefits to the community of people living in the geographic areas from which the hospitals draw their patients. Congress, state legislatures, and hospitals themselves are in a position to prohibit discrimination in charity care programs; failure to act further entrenches the exclusion of noncitizens from the threadbare health care “safety net” and perpetuates inequity in access to health care for noncitizens.
Medha D. Makhlouf, Gendered Effects of U.S. Pandemic Border Policy on Migrants from Central America, in Routledge Gender Companion to Gender And COVID-19 (Linda C. McClain & Aziza Ahmed eds., forthcoming 2023). The journeys of women and girl migrants traveling over land to the United States are made more precarious because of their gender. They are more vulnerable than men and boys to many risks, among them sexual violence, sex trafficking, and labor trafficking. At the start of the COVID-19 outbreak in the United States in March 2020, public health authorities invoked an obscure statute to virtually halt asylum processing at its southern border, a policy known as “Title 42.” Hundreds of thousands of asylum seekers have been expelled under this policy and now face longer journeys and new challenges. Title 42 purports to address a global public health issue but exacerbates another: violence against migrant women and girls from the Global South, primarily Central America. It is an example of how public health policy can reinforce preexisting advantage and disadvantage, compounding negative consequences for subordinated groups.
Medha D. Makhlouf, Interagency Dynamics in Matters of Health and Immigration, 103 B.U. L. Rev. ___ (forthcoming 2023). When Congress delegates authority to an executive agency, it tells us something important about the expertise that Congress wishes to harness in policymaking on an issue. In the legal literature on interagency dynamics and cooperation, issues at the nexus of health and immigration are largely understudied. This Article extends that literature by examining how delegations of authority on issues at the intersection of health and immigration influence policymaking. In an analysis of how administrative law models apply to three topics in the shared regulatory space of the Department of Health and Human Services (HHS) and the Department of Homeland Security (DHS), I demonstrate that health-related expertise is frequently marginalized rather than leveraged. Specifically, health policy expertise and priorities are subordinated to an administration’s immigration policy preferences, contravening Congress’s purpose in establishing related or overlapping jurisdictional assignments to HHS and DHS. Administrative law theories of shared regulatory space inadequately account for the predictable subordination of certain policy areas to others—as illustrated in the Article’s case studies on issues at the intersection of health and immigration. The routine capitulation of health policy actors to immigration enforcement actors reveals a need to extend the theory to accommodate this evidence. Although structural solutions may address some sources of health policy marginalization, effective dissemination of health-related expertise in matters of health and immigration may require changing the way that political leaders prioritize health issues and broadening their perspectives on the collateral consequences of immigration enforcement.
Medha D. Makhlouf, Stemming the Shadow Pandemic: Integrating Sociolegal Services in Contact Tracing and Beyond, __ J.L. Med. & Ethics __ (forthcoming 2023). The COVID-19 pandemic has shed light on the challenges of complying with public health guidance to isolate or quarantine without access to adequate income, housing, food, and other resources. When people cannot safely isolate or quarantine during an outbreak of infectious disease, a critical public health strategy fails. This article proposes integrating sociolegal needs screening and services into contact tracing as a way to mitigate public health harms and pandemic-related health inequities.
Medha D. Makhlouf, Towards Racial Justice: The Role of Medical-Legal Partnerships, 50 J.L. Med. & Ethics 117 (2022). Medical-legal partnerships (MLPs) integrate knowledge and practices from law and health care in pursuit of health equity. However, the MLP movement has not reached its full potential to address racial health inequities, in part because its original framing was not explicitly race conscious. This article aims to stimulate discussion of the role of MLPs in racial justice. It calls for MLPs to name racism as a social determinant of health and to examine how racism may operate in the field. This work sets the stage for the next step: operationalizing racial justice in the MLP model, research, and practice.
Medha D. Makhlouf, with Patrick J. Glen, Immigration Reforms as Health Policy, 15 St. Louis U. J. Health L. & Pol’y 275 (2022). The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions on noncitizen eligibility for Medicaid and other public benefits contribute to inequitable access to health care. Moreover, visa restrictions for noncitizen health care professionals run counter to health policies promoting access to health care during a time of severe shortages in the health care professional workforce. It is time that health policy be incorporated into the immigration-reform debate, with Congress considering whether and how such reforms are helping to achieve health policy goals relating to improving individual and population health.
Deborah Epstein, with Lisa Goodman, Informal Help-Seeking in Moments of Acute Danger: Intimate Partner Violence Survivors’ Emergency Outreach Efforts and the Forces That Shape Them, 38 Journal of Interpersonal Violence 4742 (2022). Heightened attention to police brutality has created momentum for alternative, community-based responses to violence. To help build effective alternatives, this study explored what survivors currently do when facing acute danger other than call police. We interviewed a diverse sample of IPV survivors about who they reached out to, why, outcomes, and individual, interpersonal, and psychosocial influences on the process. In the face of severe violence, participants most wanted someone who would listen without judgment.
Leigh Goodmark, Assessing the Impact of the Violence Against Women Act, 5 Annual Rev. Criminology 115 (2022). VAWA has been hailed as the federal government's signature legislation responding to gender-based violence. VAWA is primarily a funding bill and what it primarily funds is the criminal legal system. But the criminal legal response to gender-based violence has not been effective in decreasing rates of gender-based violence or deterring violence. A noncarceral VAWA could better meet the needs of victims of gender-based violence and target the underlying causes of violence.
Jeffrey R. Baker, with Profs. Luz Herrera, Davida Finger, JoNel Newman, and Christine Cerniglia, Creating Blueprints for Law School Responses to Natural Disasters, The Cambridge Handbook Of Disaster Law: Risk, Recovery, And Redevelopment (Susan Kuo, John Travis Marshall, and Ryan M. Rowberry eds.) (Cambridge University Press 2022). This chapter is an adaptation of our article, In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters, 80 Louisiana Law Review 421 (2020). This century's major disasters from Hurricane Katrina and the Fukushima nuclear meltdown to devastating Nepalese earthquakes and the recent crippling volcanic eruptions and tsunamis in Tonga have repeatedly taught that government institutions are ill-prepared for major disaster events, leaving the most vulnerable among us unprotected. These tragedies represent just the beginning of a new era of disaster – an era of floods, heatwaves, droughts, and pandemics fueled by climate change. Laws and government institutions have struggled to adapt to the scope of the challenge; old models of risk no longer apply. This Handbook provides timely guidance, taking stock of the field of disaster law and policy as it has developed since Hurricane Katrina. Experts from a wide range of academic and practical backgrounds address the root causes of disaster vulnerability and offer solutions to build more resilient communities to ensure that no one is left behind.
Education & Schools
Janel George, The Myth of Merit: The Fight of the Fairfax County School Board and the New Front of Massive Resistance, 49 Fordham Urb. L.J. 1091 (2022). This Essay analyzes recent litigation challenging racially neutral school diversity efforts at Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. As the status of diversity efforts at the higher education level are in limbo pending the outcomes of recent U.S. Supreme Court cases, litigation being waged against racially neutral diversity programs at the k-12 level is indicative of a "new front" of Massive Resistance. This new front is characterized by challenges to diversity programs backed by conservative organizations with Asian American plaintiffs challenging diversity efforts that promote access to quality education by historically marginalized Black and Latiné students. Many of these claims are predicated on the myth of "merit" undergirded by racist tropes of "underserving" Black and Latiné students. Is public education for everyone? This Essay explores the myth of merit and what the challenge against the Fairfax County School Board signals about the future of access to quality public education.
Seema Kakade, Environmental Enforceability, 30 NYU Envtl. L.J. 65 (2022). There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement.
Sarah Lorr, Unaccommodated: How the ADA Fails Parents, 110 Calif. L. Rev. 1315 (forthcoming). This Article assesses the treatment of ADA claims in family and federal courts since the promulgation of federal technical assistance in 2015. Despite promising federal intervention, courts fail to vindicate the rights of parents with disabilities by sidestepping responsibility for parents’ ADA claims. The Article shows how ostensibly neutral principles of federalism have the effect of preventing any forum from applying federal anti-discrimination law to parents with disabilities, harming parents in the family regulation system.
Sarah Lorr, with L. Frunel, Lived Experience and Disability Justice in the Family Regulation System, 1 Colum. J. Race L. 478 (2022). Despite the premise of equitable treatment of parents and families involved in the family regulation system, parents with disabilities are often mislabeled, mistreated, and untrusted by actors within the system. This Article explores how ableism operates in the family regulation system to create the ongoing pathology of parents who have, or perceived to have, disabilities.
Gender Justice, Women & The Law
Gillian Chadwick, Time's Up for Attorney-Client Sexual Violence, 22 U. Md. L.J. Race Relig. Gender & Class. 76 (2022). This article sheds light on the egregious issue of sexual violence by attorneys against their clients and the minimal professional discipline those attorneys face. The article argues for the need to take bold action to address attorney-client sexual violence and impose true accountability as well as survivor-centered values on the attorney discipline system.
Julie A. Dahlstrom, The New Pornography Wars, 43 Fla. L. Rev. ___ (forthcoming 2023). The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti-trafficking lawsuits against MindGeek and third parties, like payment processing company, Visa. These lawsuits seek not only to achieve legal accountability for online sex trafficking but also to reframe a broader array of online harms as sex trafficking. This Article explores what these new trafficking lawsuits mean for the future regulation of the online pornography industry and the fight against sex trafficking.
Leigh Goodmark, Law Enforcement Experience Report: Domestic Violence Survivors' Survey Regarding Interaction with Law Enforcement, (National Domestic Violence Hotline 2022). From March to May 2021, the National Domestic Violence Hotline surveyed callers on their experiences with law enforcement. The report demonstrates the ambivalence many survivors feel about calling police and the desire for other options.
Leigh Goodmark, The Anti-Rape and Battered Women's Movements of the 1970s and 80s, in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds., forthcoming 2023). The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement of the late 1960s and early 1970s. Some anti-violence pushed for greater state intervention via the criminal legal system, but the movement was not united in embracing such strategies. Feminist organizing reflected the tensions between competing visions of the role of the state in addressing gender-based violence, visions shaped by race, class, and professional status.
Natalie Nanasi, New Approaches to Disarming Domestic Abusers, 67 Vill. L. Rev. 561 (2022). Failure to enforce laws prohibiting perpetrators of intimate partner violence from possessing firearms has led to deadly consequences. Criminal justice-based efforts to disarm domestic abusers have yielded minimal success. This Article, drawing from the fields of public health, international human rights, and anti-carceral feminism, explores alternative approaches. It analyzes these theoretical areas to draw out commonalities— including a move away from carceral approaches, a focus on prevention, and an emphasis on community-based solutions—that can inform efforts to remove guns from the hands of domestic violence offenders.
Jeffrey R. Baker, A Sermon on the Law: The Jurisprudence of Love, 15 Wash. U. Jur. Rev. ___ (forthcoming 2023). This essay, in the form of a sermon to lawyers and lawmakers, articulates a liberating, progressive, theological jurisprudence of love. This jurisprudence seeks the empowerment of all people and advances a strong policy preference for the poor and disenfranchised. Rooted in scripture, this critical rule measures law and policy in the United States against fundamental human dignity. This is an ancient, radical message for contemporary law and policy.
Lauren E. Bartlett, Human Rights and Lawyer's Oaths, 36 Geo. J. Legal Ethics ___ (forthcoming 2023). Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer’s oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer’s oaths in the United States, this article argues that it is past time to update lawyer’s oaths in the United States and suggests drawing on human rights to make lawyer’s oaths more accessible and impactful.
Tamar Ezer, Localizing Human Rights, 31 S. Cal. Rev. L. & SOC. Just. 68 (2022).
Over the last two decades, cities throughout the world have espoused international human rights in various forms. This development has caught on in the United States with close to a dozen self-designated human rights cities and a vibrant “Cities for CEDAW” movement, focused on protection of women’s rights. This paper probes this growing phenomenon and argues that local human rights implementation is a critical frontier, enabling a human rights approach to governance, strengthening participation and equality. Closer to communities, human rights cities can democratize rights and move beyond the citizen construct at national level to embrace all inhabitants. Cities also provide a critical vehicle to negotiate the inherent tension between the universality of human rights and respect for cultural and regional diversity. Moreover, cities are particularly important as human rights actors in the US context, where federalism limits the reach of international treaties to address issues touching on criminal law, social welfare, and family relations, critical to women’s rights. Cities can thus play a crucial role in realizing women’s equality, addressing cultural norms, jurisdictional barriers, and disparate impacts. The paper further provides recommendations for better engagement with cities as human rights actors, currently in its infancy, at international, national, and local levels.
Anita Sinha, A Lineage of Family Separation, 87 Brook. L. Rev. 445 (2022).
Anita Sinha, Transnational Migration Deterrence, 63 B.C. L.Rev. 1295 (2022).
Richard J Wilson, War Crimes: History, Basic Concepts, and Structures, 37 ABA Crim. Just. 3 (Fall 2022). A primer for criminal justice practitioners on war crimes.
Labor & Employment
Angela Cornell, Labor's Obstacles and Democracy's Demise, in Cambridge Handbook of Labor and Democracy, Cambridge University Press, 2022. This article denounces the barriers that workers face in the U.S. when they are trying to organize collectively. It links the declining union density rate, the lowest of rich industrialized nations, to inequality and weakening democracy. It builds on research that finds that the working class have played a supportive and often crucial role in forging and defending democracies.
Angela Cornell, Why Organized Labor is a Democratic Catalyst, National Endowment for Democracy: Democracy Digest (August 8, 2022). Blogpost about the new coedited volume.
Angela Cornell, coedited with Mark Barenberg, Cambridge Handbook of Labor and Democracy, (Cambridge University Press 2022). The chapters build on and update an extensive body of literature that explores the role of organized labor and the working class in the historical construction of democracy, examining a range of more recent cases in non-Western parts of the world. The contributors also explore the efforts of labor unions to construct novel forms of social citizenship by deepening or extending democratic practices to broader spheres of social and economic relationships. The volume breaks new ground in the analysis of recent patterns of democratic erosion, examining its relationship to the political weakening of organized labor and, in several cases, the political alliances forged by workers in contexts of nationalist or populist political mobilization.
Race & Law, Critical Race Theory
Danielle Pelfrey Duryea, with Peggy Maisel, Un-Erasing Race in a Medical-Legal Partnership: Antiracist Health Justice Advocacy by Design, 70 Wash. U. J. L. & Pol'y 1 (2023).