Authors:Joubin Khazaie Abstract: This Comment will argue that the racist language enshrined in foundational Supreme Court decisions involving Native tribes continuously enacts a form of colonial violence that seeks to preserve a white racial dictatorship. The paper will use Frantz Fanon’s scholarship on colonial violence and the dehumanization of Indigenous people as a framework to understand the history of legalized racism against Indigenous people in the United States. Fanon’s analysis allows us to understand how language is used to dehumanize Native people in order to establish a system of hierarchy that informs the societal roles of the colonizer and the colonized. The paper will then trace the use of racial stereotypes and brutalizing language against Native Americans in Supreme Court decisions under Justice Marshall. Further, the paper will argue that the racist precedents and language relied upon by the Supreme Court have operated as a form of colonial violence that serve to justify the denial of property, self–governance, and cultural survival of Native Americans. PubDate: Tue, 10 May 2022 13:51:54 PDT
Authors:Michael Swistara Abstract: The carceral state has used non–human animals as tools to oppress Black, Indigenous, and People of the Global Majority (BIPGM) for centuries. From bloodhounds violently trained by settlers to aid in their genocidal colonial project through the slave dogs that enforced a racial caste system to the modern deployment of police dogs, non–consenting non–human animals have been coopted into the role of agents of oppression. Yet, the same non– human animals are themselves routinely brutalized and oppressed by the carceral state. Police kill several thousands of family’s companion dogs every year in the United States. Law enforcement agencies train animals in a violent and racist manner only to place them in the line of fire against their will. These systems of oppression share many of the same tools, from language that justifies violence to legal instruments like qualified immunity that protect officers of the state when they engage in violence. This paper charts this history, analyzes the intersectional tools and shared roots of oppression, and ultimately concludes that ending the use and abuse of non–human animals by the carceral state is a necessary part of the broader prison industrial abolition project. PubDate: Tue, 10 May 2022 13:51:54 PDT
Authors:Allison Dopazo Abstract: Children are often regarded as the most sacred beings in all of society—appealing to our collective sense of human dignity and protecting the most vulnerable. Mothers fiercely protecting their young children from perceived dangers is ostensibly a natural and moral response. This notion of the loving mother is in stark contrast to filicide, or the act of a parent murdering their child. It is a bedrock principle of the American criminal-justice system that a defendant is not responsible for their actions if the defendant was “laboring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”1 Given the bleak reality of filicide, how should American criminal law treat mothers who commit the heinous crime of killing their child when the mother was suffering from a postpartum disorder at the time of the crime' This essay will detail women’s lived experiences of postpartum disorders, describe the current American criminal law approach to defendants who are mentally ill, and propose changes to American criminal procedure to reflect postpartum disorders’ effect on a mother’s mental state. PubDate: Tue, 10 May 2022 13:51:53 PDT
Authors:Staci Campbell Abstract: For years, Black people have been forced to place extra thought into their appearance, especially in the workplace. Extra thought and extra effort all to avoid being looked down upon as unkept or unprofessional. Finally, there is a wave of legislation being introduced and passed to rectify this problem. While strides are being made, there is still much work to be done. The amount of work left to be done is illustrated by a slew of unfavorable federal cases brought in the face of discrimination against Black hair and hairstyles. This paper explores one of those cases as well as the significance of protective and natural Black hairstyles to the Black community, and why it is imperative for this significance to not only be respected but also protected. PubDate: Tue, 10 May 2022 13:51:52 PDT
Authors:Sarah Coleman Abstract: The COVID-19 pandemic has forced students around the country out of brick-and-mortar schools and into virtual classrooms. While the switch to remote learning has helped keep students and teachers safe from contracting the virus, students with disabilities have largely been deprived of a meaningful education and in person services mandated under federal law. This essay will explain how students have been denied a free appropriate public education (FAPE) under the Individuals with Disabilities Act (IDEA), how litigation has been unsuccessful in creating systemic change for these students, and how public policy by U.S. legislators can offer a solution. PubDate: Tue, 10 May 2022 13:51:52 PDT
Authors:Lauren Silk Abstract: In the decades-long rise of neoliberalism, venture philanthropy has emerged as a respected solution towards addressing reforms to public education. Private foundations such as the Bill and Melinda Gates Foundation have led the charge for education development in the United States. However, the infusion of private donations and adoption of business models to a public good have not improved educational outcomes. This article addresses the role of venture philanthropy in reinforcing racial and economic disparities in educational resources and attainment through the lens of Gates Foundation initiatives. Specifically, the article dissects the role of neoliberalism in crafting education policies through private funding and discusses how the Foundation’s failed ventures—such as the small school initiative, charter school expansion, and teacher evaluations based on student performance on standardized testing—have served to reinforce a status quo of “winners and losers.” The article concludes with suggested democratic solutions to achieve equitable educational reform. PubDate: Tue, 10 May 2022 13:51:51 PDT
Authors:Laura Odujinrin Abstract: Since its founding, the United States has counted democratic elections as a fundamental tenet of democracy. Redistricting ensures that elections are free, fair, and representative of the people. This process requires that every ten years, after the national census, congressional, state, and local districts are redrawn, if necessary, to reflect changes in population to ensure that district populations are equal. What should be a simple calculation, has become step one in a political party’s bid to maintain or gain power. This has led to countless legal battles and minority populations left without adequate representation. In turn, this lack of representation perpetuates the systemic racism upon which this country was founded. Gerrymandering, particularly racial gerrymandering, is a foundational step in ensuring the exclusion of underrepresented communities from voting. The 2020 election concluded with many seat flips by a slim margin of votes, along with the record voter turn-out and resulting litigation, which suggests that the battle of redistricting following the 2020 census is bound to be an intense one. This Comment defines gerrymandering, its types, and strategies as week as lays out the legal framework for racial gerrymandering litigation. It focuses past on censuses and what can be expected out of the 2020 census results. The impact of racial gerrymandering on minority and underrepresented communities including voter suppression, systematic racism, and a lack of representation in government cannot be understated. The Comment concludes with possible solutions to prevent racial gerrymandering in the future. Ultimately, the author demonstrates that the fight for fair and free access to voting is stronger than ever. PubDate: Tue, 18 Jan 2022 10:12:01 PST
Authors:Megan Schmidt Abstract: In 2020, Josh Gupta-Kagan’s article on the American Hidden Foster System challenged the welfare system to face its coercive practices that effectuate in a child being removed from the home without formal state intervention and court oversight.1 Families find themselves struggling to stay together as child protection workers utilize threats and safety plans to force the removal of a child from the home and into the custody of a family member.2 The children’s, the parents’, and the kinship caregivers’ lives are forever impacted by the welfare state, yet they receive insufficient benefits or protections afforded to families, caregivers, and children placed in licensed foster care under the jurisdiction of the court.3 This paper will explore what Gupta-Kagan coined the “American Hidden Foster system”4 during the COVID era, as well as some solutions to the injustices these families face while in the system. Lastly, this paper hopes to offer an approach to balance the inevitable tension that surfaces when child welfare agencies push for “under the table” removals while impoverished families desperately try to stay together. PubDate: Tue, 18 Jan 2022 10:12:00 PST
Authors:Erin Berhan Abstract: Our racial divide has always been a national security threat. An early observer of our American project, Alexis de Tocqueville, wrote about this threat to our future union in “Democracy in America,” learned by merely travelling the young nation thirty years before our Civil War.1 Despite generations of societal and legal evolution, our nation has not overcome the wounds and disabilities that our racial divide left behind — now ripe for modern security threats. In 2019, the United States Senate Select Committee on Intelligence released Volume II of their years long investigation into Russian Active Measures of interference with our elections and democracy, referring to the effort as an “information warfare campaign” designed to stoke “societal division in the United States.”2 Our racial divide was the fault line under attack in the Russian Active Measures campaign. The Senate’s “integrated” recommendations avoided the critical issue of proven vulnerability through our racial fault lines and mainly offered that social media companies, citizens, and the Executive Branch should simply self-regulate in face of this national security threat. More critically, the Senate recommendations mandated that any “approach” to guard against this threat “must be rooted in protecting democratic values, including the freedom of speech.” The weak Senate recommendations, coupled with the unprecedented siege on the Capitol on January 6, 2021, require an urgent review of the ways that our laws have disabled us from properly analyzing the impact of race as a legal matter. Three landmark cases, Brandenburg v. Ohio, Washington v. Davis, and McCleskey v. Kemp, are all post-Civil Rights Movement cases that opened America up to assaultive speech, attempting to usher in race-neutrality and a “law and economics” framework. These cases made our racial lines a bit deeper, leaving us with scar tissue exposed to the world, rather than sound and protective case law. Indeed, the landmark Brandenburg opinion supports this argument.4 Clarence Brandenburg, who spoke his works a few days after the Civil Rights Bill of 1964 was passed in the Senate, threatened to march the Klan to Mississippi and St. Augustine, Florida. There was nothing random about those locations. Brandenburg spoke a few days after three young Civil Rights workers were murdered by the Ku Klux Klan in the infamous Mississippi Burning case, their bodies were still missing when he spoke. Then-President Lyndon B. Johnson sent the F.B.I. and troops to Mississippi as a response — the murders gripped the nation and our government. Clarence Brandenburg also spoke while widespread violence engulfed St. Augustine, Florida as Dr. Martin Luther King, Jr. was spending the month in St. Augustine to desegregate the city — violence was ongoing and rampant. Yet this context was sanitized in a hastily written per curium opinion originally authored by Abe Fortas as he was forced to resign over financial improprieties. Adding to this uniquely odd circumstance, no opinions were released on Brandenburg in the state courts below. This acontextual, ahistorical opinion, stripped of the power of judicial speech, is ironically our landmark Free Speech decision. The Davis and McCleskey opinions warrant review as the Senate was not short on data, facts, or intent in the Russian Active Measures campaign report, yet somehow the data on race was not acted upon nor appeared in the recommendations. These cases frame why when our racial division is at the forefront of an issue factually, it is disabled as a legal matter. Demanding attention to where the law has failed us on matters of race is fiercely important now as the relevant matters of national security uncovered by the Senate remained unanswered legally. Indeed, the January 6, 2021 “Save America” rally is eerily reminiscent of Clarence Brandenburg’s exhortation to “Save America” in his Klan speech in 1964. The studied blindness of racism and racial harms in law has not solved our problems, rather, it has left us more vulnerable than ever. PubDate: Tue, 18 Jan 2022 10:11:59 PST
Authors:Daniel Robinson Abstract: The novel threats posed to our criminal justice system by the COVID-19 pandemic and attendant shutdowns of courts beg the question of whether our must fundamental pillars of law can withstand the ultimate test of time. And inherent in the ultimate test of time is the ultimate test of technology—this is, will there come a time that technology outgrows the confines of our legal landscape' Consider this: The United States Constitution guarantees every criminal defendant the right to confront their accuser in court; yet, for a substantial period of time in 2020, court, as we knew it, was nothing more than a live, two-way, video-telecommunications stream. Is confrontation via live, two-way video-telecommunication sufficient to comport with the fundamental rights guaranteed to criminal defendants under the Constitution' Fortunately, the era of the Coronavirus Court has largely come to an end with courts re-opening and the mass-dissemination of vaccines and booster shots worldwide; however, the question remains whether we, as a society, are prepared to recognize that the legal landscape of the criminal justice system is changing. And moreover, whether the law, as it is understood and applied today, contemplates this idea that traditional notions of fair play and substantial justice are ever-developing in light of technological and societal advancements. PubDate: Tue, 18 Jan 2022 10:11:59 PST
Authors:Michael Conklin Abstract: In “Officer-Involved Shootings”: How the Exonerative Tense of Media Accounts Distorts Reality, the author examines how the use of passive language absolves officers from public and media accountability after a shooting. This Article reports the findings of a first-of-its-kind study designed to measure how the use of the phrase “officer-involved shooting” affects public perceptions of police behavior justifications. PubDate: Tue, 18 Jan 2022 10:11:58 PST
Authors:Kristen Calzadilla Abstract: Free public-school education is fundamental aspect to many citizens life, liberty, and pursuit of happiness in the United States. As states add constitutional provisions guaranteeing a public education, there are still great disproportionalities in the adequacy pf education provided to underrepresented students. Such are the issues at the heart of the recent Florida Supreme Court case, Citizens for Strong Schools, Inc., et al. v. Florida State Board of Education, et al. Citizens for Strong Schools throws its hat into the contentious debate over equitable educational standards. However, despite other state supreme courts’ rulings that similar provisions in the state constitutions are justiciable, thereby giving the injured parties a way to force legislative change, the Florida Supreme Court refused to get involved, declaring the provision a nonjusticiable political issue that does not allow for judicial intervention to remedy the inequitable policies. PubDate: Tue, 18 Jan 2022 10:11:57 PST
Authors:Ilias Bantekas Abstract: English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Quranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into without the wife’s unequivocal consent or under duress from family members then, as a contract, it may be declared voidable by the courts; the wife, however, would retain the right to seek redress from such a voidable contract. Moreover, besides comity and reciprocity, there is no other legal impediment as to why English courts cannot employ the Human Rights Act to counter foreign talaq obtained in violation of the wife’s fundamental human rights. This is particularly so where the wife repudiates the application of her personal law in favour of English family law, provided that this is done in a manner that does not expose her to accusations of apostasy PubDate: Tue, 18 Jan 2022 10:11:56 PST
Authors:Leanne Fuith et al. Abstract: On March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children and pets make daily appearances in our virtual meetings. In many ways, the Covid-19 pandemic has been a leveling experience. Everyone has struggled during the pandemic in some way—even the most privileged. And, yet, in many ways the pandemic has also been incredibly stratifying. The United States is now in an “unequal recession.” One of the most crucial inequalities is the impact on those who hold caregiving roles in our society. Working caregivers and women absorbed most of the unanticipated work throughout the Covid-19 pandemic—childcare, remote teaching, and care for aging parents and family members with special needs. Additionally, those same working caregivers—primarily women—are quitting their jobs in record numbers in order to manage the workload. Loss of employment is not the only impact. Working caregivers quickly became society’s fallback plan in the United States. The Covid-19 pandemic shone a bright light on the value that the United States assigns to the work of caregiving and the inequities that exist in American culture and workplaces toward the individuals who perform those roles. The ripple effects of the Covid-19 pandemic on women will be felt for years to come—by the women, their families, and our workplaces which have lost and are losing daily the important and diverse perspectives those women bring to their work This article explores the role of caregivers during the Covid-19 pandemic, both the immediate and long-term impacts on those in caregiving roles, including the disproportionate impact of caregiving responsibilities on women, and the need for long-term reform to better support and value caregivers in the United States. PubDate: Thu, 20 May 2021 11:03:14 PDT
Authors:Madeleine M. Plasencia Abstract: This article focuses on disability law in the context of COVID-19. In dealing with this pandemic, businesses, schools and other covered entities have to navigate and manage (at least) three different categories of people congregating. First are those who act as if there were no pandemic at all; they simply do not care if they are contagious and insist upon not complying with safety precautions, such as mask-wearing and social distancing; second are people who have medical conditions that make them especially vulnerable and at high-risk for severe symptoms associated with the infection; third are people who have already contracted COVID-19, and are currently experiencing symptoms, or have recovered from COVID. The point of this article is to discuss law that protects the second and third groups, especially against the first group. In part I, I identify the special pandemic-focused problems that arise when these groups interact. In part II, I discuss the global and local statistics related to the spread of the virus, especially as they relate to the housing needs and demographics in Miami-Dade County, Florida. Miami, Florida is exemplary because it is the fourth-largest urban area in the United States (U.S.), with a population of approximately 5.5 million, and a density of nearly 4,500 persons per square mile. With daily nonstop flights between Miami International Airport and Paris, Warsaw, Morocco and London, Miami -Dade County is a world-class hot spot for coronavirus, ranking fourth in the U.S. for highest number of confirmed coronavirus cases. Thus, Miami is a site where we see the three categories of people—mask-less individuals, those who are medically vulnerable to COVID-19, and those who have currently or previously tested positive for COVID—have come unwittingly together, explosively challenging the legal frameworks. In part III, I revisit significant pre-COVID-19 contagion cases for a discussion of historical and recurring problems of discrimination and containment. In part IV, I discuss the role of the state in protecting vulnerable persons against the mask-less. Part V addresses the emerging U.S. Supreme Court COVID-19 jurisprudence in the context of religious freedom, which I argue are arguably contagion non-containment cases. Part VI concludes that state “contagion law” and federal disability law can be understood to work together to keep everyone safe, especially during a pandemic. PubDate: Thu, 20 May 2021 11:03:13 PDT
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