LEX Magazine, Issue 2

SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS

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WHY DID THE LAW PROFESSOR CROSS THE ROAD?

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STANDARDS DEVIATION

AFTER MIRANDA: HAMILTON TAKES THE STAGE

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14

TEXT AND SUBTEXT IN LOVING V. VIRGINIA

20

FREE THE HAIR

28

2

MASTHEAD

LEX

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LEX TEXT & CONTEXT

I am very pleased to present the second edition of Lex .

We live in interesting times. It is no overstatement to say that the rule of law is under significant pressure, as legal institutions face immense challenges and social and legal norms are challenged on a regular basis. We have an important anchor in these moments, even if that anchor is an oscillating pair in constant motion. With this second issue of Lex, we take a closer look at the dynamic duo of texts and contexts. In the quarter century since the Violence Against Women Act was passed, the nation has seen a precipitous decline in domestic violence. Yet this law’s power varies greatly, according to the social and cultural context in which abuse victims live. More than 50 years after Loving v. Virginia, constitutional scholar Professor Melissa Murray tracks a persistent pattern of custody decisions reflecting the courts’ enduring disapproval of interracial relationships. Our colleague Professor Wendy Greene’s pathbreaking scholarship explores how the freedom to wear braids, cornrows, fades or Bantu knots depends on laws that recognize and protect traits associated with race, including hair texture. This issue also explores evolving standards of decency in discussions of cruel and unusual punishment, highlights the judiciary’s role as a political logjam breaker in the Boston busing case and appraises the brushfire of debate over free speech in social media. As illustrated by both a mock trial of Aaron Burr (inspired by Lin-Manual Miranda’s portrait of Alexander Hamilton) ured

and

professor

Liz to

Glazer’s stand-up

transition comedian,

from

ten-

context

in-

forms and colors our perceptions of past and present.

I hope that you will enjoy this issue. Let me know what you think. — Dean Daniel M. Filler

LEX TEXT & CONTEXT

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SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS by Sarah Greenblatt

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SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS

On Sept. 13, 1994, President Bill Clinton sat under a blazing late-summer Washington sun as 2,000 onlookers watched him sign a law that would protect untold Americans from violence, including abuse by spouses and intimate partners. The event came nine months after the U.N. adopted the Declaration on the Elimination of Violence Against Women, three months after the Organization of American States adopted the Inter-American Convention on Prevention, Punishment and Eradication of Violence Against Women and just 85 days after O.J. Simpson was arraigned for the murder of his wife, Nicole Brown Simpson, following a highway chase that commanded a television audience of 95 million viewers. An estimated 6.6 million women in the U.S. endured stalking or physical or sexual violence at the hands of intimate partners in 2015.

Yet, during the 38-minute signing ceremony, not one

2011, serious intimate partner violence against women

speaker mentioned the Violence Against Women Act

declined by 72 percent, according to a 2016 report by the

or alluded to the topic of domestic abuse. The fanfare

Department of Justice Office on Violence Against Women.

focused solely on the Violent Crime Control and Law

And between 1993 and 2010, domestic violence resulting

Enforcement Act, in which the VAWA was embedded.

in homicides of women fell 35 percent, according to a

In signing the largest crime-control effort in U.S. his-

White House fact sheet published in 2012.

tory, Clinton was imposing life sentences on violent

Nevertheless, an estimated 6.6 million women in

offenders convicted a third time, putting more police

the U.S. endured stalking or physical or sexual violence

officers on the street, expanding death-penalty eligi-

at the hands of intimate partners in 2015, according

bility, funding prison construction, banning the sale

to the National Intimate Partner and Sexual Violence

and possession of 19 assault weapons and inviting

Survey, published by the Centers for Disease Control.

mountains of criticism and praise. Winning bipartisan

VAWA has heightened awareness, experts say, and

support for those controversial measures rewarded the

there is now widespread recognition that domestic vio-

White House with a coveted tableau of unity. The press

lence crosses lines of class, race, national origin, sexual

covered Clinton’s triumph extensively but scarcely

orientation and gender—though women are victimized

mentioned VAWA.

far more often than men.

It bears acknowledging—a quarter of a century after

“I think you can no longer really claim that domestic

this watershed development—that the first federal leg-

violence is invisible,” said Professor Deborah Epstein,

islative package seeking to end violence against women,

director of the Domestic Violence Clinic at Georgetown

requiring every state to recognize orders of protection

University Law Center. “Most people in the country

issued in other states, funding prevention, data col-

know that it’s an epidemic.”

lection and victims’ services and resulting from years’ worth of advocacy, unfolded in near total eclipse.

Some of that awareness has resulted from periodic Congressional reauthorizations of VAWA, which

Still, statistics reveal that passage of VAWA has been

provide victim advocates with an opportunity to seek

a game changer in many regards. Between 1994 and

enhancements that ripple more broadly. The 2000

reauthorization expanded VAWA to include dating vio-

LEX TEXT & CONTEXT

lence, and the 2005 reauthorization added programs to train health care providers to screen patients for signs of psychological as well as physical abuse. An expan-

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sive 2013 reauthorization extended protections to immigrants, LGBT victims, Native Americans, college students and public housing residents. Yet efforts to expand VAWA’s protections are never

attention to multiple forms of oppression that impact

guaranteed. Support wanes and waxes less predict-

marginalized communities, as well as the need for more

ably than the lunar cycle, leaving victims vulnerable

comprehensive responses and different pathways for

to dictates of the political season that are as mercurial

survivors to pursue safety and well-being.”

as a mean drunk. Indeed, reauthorization in 2019 will

Hidalgo noted that Congress has declined for

likely depend on a provision that would bar those with

decades to fund prevention programs adequately—

records of stalking or other abuse in dating relationships

despite the identification of domestic violence as a

from purchasing guns. Opposition to that measure by

public health issue by policy experts—creating a “one-

the National Rifle Association may hold more sway

size-fits-all” approach whereby victims are pushed to

than research cited by the National Coalition Against

pursue orders of protection or press criminal charges.

Domestic Violence: that the presence of a gun in a

“People feel very proud of the changes,” Epstein

domestic violence situation increases the risk of homi-

said. “Now, lots of people get arrested and prose-

cide by 500 percent.

cuted. Women can be harmed by this one-size-fits-all

And while VAWA has afforded protections, an over-

500

approach. It’s quite a blunt instrument.”

reliance on criminal courts has produced unintended

Not only does racism in the justice system invite

consequences, according to Rosie Hidalgo, the deputy

abuse victims to be blamed “for sending another

director for policy with the Department of Justice’s

African American man to prison,” Epstein said, “there

Office on Violence Against Women from 2014 to 2017

is quite a bit of evidence that, in some subcommuni-

and current senior director of public policy at Casa De

ties of women, prosecution puts them at greater risk of

Esperanza National Latin@ Network.

future recidivist harm.”

In a 2015 article in the University of Miami Race

Efforts to protect domestic violence victims can

& Social Justice Law Review, Hidalgo wrote that the

vary, due to a multitude of factors colored by the social

unforeseen “consequences of VAWA have dispropor-

standing held by diverse populations and the distinct

tionately impacted communities of color, immigrants,

ways that diverse communities interact with the law

LGBT communities and others who do not fit the

and with legal systems.

mainstream paradigm. Additionally, an overempha-

Research cited by the National Coalition Against Domestic Violence: the presence of a gun in a domestic violence situation increases the risk of homicide by

A look at three specific communities illustrates just

sis on a criminal legal response has detracted from a

some of the maddening limitations of the law to protect

broader social justice analysis of gender violence and

victims of domestic abuse.

President Bill Clinton signs the Violent Crime Control and Law Enforcement Act. AP Photo/Denis Paquin

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SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS

“YOU’RE GOING BACK”

courthouse arrests by ICE between 2016 and 2018 just in New York state. ICE has stepped up its capacity to take immigrants into custody by signing 287(g) agreements with local police departments, allowing officers to act as agents of the federal agency. Nationwide, 28 state and local departments had signed 287(g) agreements prior to

The proposition of seeking protection from abuse is

Trump’s inauguration, while 52 more have signed and

often paralyzing for undocumented immigrants.

21 others have discontinued them since January 2017,

“If you are a victim of domestic violence who is

according to the Immigrant Legal Resource Center.

a resident or citizen of the U.S., there may be a lot of

Fears about enforcement helped drive a 391 percent

reasons why you decide not to call the police. But

decline in VAWA petitions by undocumented immi-

that’s always a tool in your arsenal,” said Professor

grants married to U.S. citizens and lawful residents

Natalie Nanasi, director of the Judge Elmo B. Hunter

nationwide between 2016 and 2017, according to a

Legal Center for Victims of Crimes Against Women at

study conducted by the National Immigrant Women’s

Southern Methodist University Dedman School of Law.

Advocacy Project at American University Washington

“Immigrant survivors don’t feel that they have that tool.”

College of Law and the American Civil Liberties Union.

Immigration policy in the Trump era has had a powerful effect. The Obama administration’s aggres-

But the study does not paint a consistently grim picture, NIWAP Director Leslye Orloff said, explaining

sive deportations of immigrants with serious criminal

that in communities served by savvy attorneys, where

records has morphed into a “free for all,” Nanasi said.

judges and law enforcement are informed and sympa-

“Immigrant survivors, even before Trump, were reluc-

thetic, there was an uptick in orders of protection and

tant to come forward because they were afraid that the first thing a police officer would ask would be, ‘Show me your papers.’” Testifying about abuse has become an even more perilous prospect, now that Immigration and Customs Enforcement officers make so many courthouse arrests that the administration faces lawsuits on numerous

other claims. “Where the victim advocates can say, ‘I’ve taken clients to this judge, and you don’t have to worry about being taken to ICE,’ you can smooth the way,” Orloff said. Meanwhile, the immigration status of either the abuser or the victim can bend the trajectory of a domes-

fronts, and judges across the country have lodged pro-

tic violence case this way or that, said attorney Tanishka

tests. A report released in January 2019 by the Immigrant

Cruz, ’12, owner of an immigration and family law prac-

Defense Project tallied a 1,700 percent increase in

tice in Charlottesville, Virginia.

Fears about enforcement helped drive a 391% decline in VAWA petitions by undocumented immigrants married to U.S. citizens and lawful residents.

“Many of my victim clients will hesitate to contact

LEX TEXT & CONTEXT

law enforcement, for fear that the main breadwinner will be deported,” and many are loath to let their family units disintegrate, Cruz said.

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In mixed-status households, a spouse may use legal standing “as a weapon,” Cruz said. “‘Do what I want, or I’ll turn you in.’ That is a very real situation that a lot of people, unfortunately, are living through, almost like a hostage situation: ‘You’re going back.’” In theory, law enforcement will not base its response to a domestic violence incident on the immigration status of a victim seeking protection, will respect her confidentiality and decline “tips” from an abuser about her lack of documentation. But in practice, Nanasi said, that may not matter.

because they don’t deem domestic violence to represent a sufficiently savage crime to warrant a U visa or because they conclude that a violation like shoplifting in a victim’s distant past makes her undeserving. “Local law enforcement is making qualified decisions about whether somebody’s worthy,” Cruz said. “You’re at their mercy.” Some police fear certifying someone who will later

“I don’t know that victims know that,” she said. “I

commit a future crime, while prosecutors commonly

Immigration attorney

don’t know that victims believe that, especially if they

worry that claims of abuse by undocumented immi-

Tanishka Cruz, ’12

have an abuser speaking in their ear.”

grants will handicap their cases, said Jane Anderson, attorney advisor for Aequitas, a non-profit that develops and evaluates prosecution practices related to gender-based violence and human trafficking. “The defense will often say, ‘She’s trumping up charges to stay in the U.S.,’ trying to inflame anti-immigrant sentiment in front of a jury,” said Anderson, who previously prosecuted domestic violence and human trafficking cases in Miami-Dade County. “Many prosecutors think it will ruin their case, or if an immigrant seeks a (status) benefit, the jury won’t accept this. It’ll become a case about her U visa.” While it’s appropriate—and ethically obligatory— for a defense attorney to explore a witness’s motivation to lie, Anderson said, prosecutors should recognize that abusers may choose their victims deliberately, knowing that those in the U.S. illegally have little recourse. Anderson serves on a national faculty Orloff has assembled to educate judges and prosecutors about overlapping issues in immigration and family law and best practices for promoting public safety and protect-

Under-Utilized Tools

ing victims of domestic violence and human trafficking.

Amidst the challenges posed by immigration policy,

Anderson said, calling U visas a powerful tool, when

undocumented survivors of domestic violence—and

handled correctly, both for crime fighting and

their advocates—have access to an array of strategies

prosecution.

“We are trying to change hearts and minds,”

that previous generations of victims lacked.

But in the meantime, attitudes within the law

“We are decades beyond where we were,” Orloff

enforcement community vary tremendously by loca-

said, citing the enactment of statutes, the addition of

tion, and even a police department that sends an officer

resources and a greater awareness of family dynamics

for training may not commit to wholesale change, said

on the part of many judges, prosecutors and police.

Det. Stacey Ivie of the Alexandria, Virginia Police

Congress crafted a potent tool with the 2000 passage of the Victims of Trafficking and Violence Protection

Department, who led efforts to implement U Visa certifications on that force.

Act, which made victims of domestic violence who

“You hope they will send someone and that the chief

cooperate with criminal investigations eligible to apply

mandates that everybody reads what the person brought

for U visas and, potentially, to later seek lawful status as

back,” Ivie said. “But even if a directive is issued, who’s

permanent residents.

ensuring that there’s compliance?”

Even that tool, however, comes loaded with limitations. For starters, the U.S. issues just 10,000 U visas annually, producing a backlog of applications that puts many requests on hold for more than eight years. And, Cruz points out, law enforcement officers who must certify eligibility are seldom eager to do so, either

Increasingly, immigrant advocates find, victims are making their peace with life in a violent home. “I think the calculus that women make in that situation is that, ‘He beats me up once a month; I found a way to manage that,’” Nanasi said. “That’s the choice that people are making.”

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SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS

Rabinowitz to which her husband confessed, the 1994 killing of Cherry Hill N.J. resident Carol Neulander of which her husband, a rabbi, was convicted, the 2012 slaying of Syracuse woman Leslie Neulander, for which her obstetrician husband faces a retrial, and the 2009 strangulation death of Manhattan banker Sheli Danishefsky, of

“JEWISH MEN DON’T DO THAT”

which her husband was convicted in 2019. Abuse does not always entail violence or criminal activity; it often involves economics, said Deborah Rosenbloom, vice president of programs and new Initiatives at Jewish Women International. Women who appear to have resources might not have a credit card in their own names, might be forced

The Old Testament Book of Samuel recounts the rape

to turn over paychecks to abusers or find resources

of Tamar by her half-brother, Amnon, yet in the Jewish

withheld, Rosenbloom said.

community, domestic abuse has tended to persist in relative obscurity. Religion commonly plays a complicating factor in domestic violence, especially since faith communities may be small, insular and scattered across international borders, where civil and criminal remedies vary at least as widely as interpretations of scripture. But in traditional Jewish homes, the matriarch is usually the person in charge of the home and family, making it easy to blame the woman for discord in a household and therefore tempting for a victim to remain mum. “The mother or wife may feel that she, alone, is responsible for shalom bayit—peace in the home—and therefore does not want to call attention to the fact that ‘things aren’t so great,’” said Alyson Morse Katzman, associate director of Safe Havens Interfaith Partnership Against Domestic Violence in Boston. “There’s a lot of shame, the whole shonda effect, Katzman said, using the Yiddish term for behavior that causes embarrassment in the community. That shame can be debilitating, since tarnishing a

Indeed, researchers at the University of Wisconsin’s

Dinah, Inc. founder

Center for Financial Security found in a 2008 study that

Shana Weiner, ’13

family’s reputation can affect future generations in tra-

economic abuse factored into domestic abuse for 99

ditional Jewish communities.

percent of victims, without respect to faith.

“The shame factor is very profound,” said Rabbi

“We know that is a prevalent form of abuse in Jewish

David Rosenberg, coordinator of educational services for

relationships,” Rosenbloom said. “That’s tricky. It con-

Jewish Child and Family Services of Chicago, where he

tributes to the myth that ‘it doesn’t happen’ in these

serves as liaison to the Orthodox community. “People

families.”

don’t want to be shamed. They want the dignity of their community to be maintained. They are concerned about

Escaping the Trap

their children being able to find mates.” Jewish women who claim abuse frequently face dis-

Limited resources put many Jewish abuse victims in

belief, born in large part by stereotypes of them as loud

a bind, Tucker said, since professionals may lack the

and pushy and of Jewish men as educated and mild-man-

wherewithal to hire an attorney but have too much

nered, said Naomi Tucker, who founded Shalom Bayit, a

money to qualify for legal aid.

counseling, education and advocacy organization that serves nine counties in the Bay Area, in 1992.

“It’s a terrible trap for our clients,” Tucker said, noting that it can cost $50,000 to $100,000 to gain custody

“They are told: ‘You must be lying, because Jewish

rights that would shield a victim from an angry ex. “The

men don’t do that,’” Tucker said, recounting an incident

legal system is a way that abusers continue to abuse.

some seven years ago, when a judge uttered those very

This is why a lot of women don’t leave. You can get a

words to a domestic violence survivor seeking custody

restraining order for free, but to protect the kids—if the

rights in his courtroom. “Those beliefs are very deeply

abuser has an attorney—you’ll need one, too.”

rooted.”

Tucker contends that the emotional challenges

Those beliefs persist in the face of narratives that

of handling domestic violence—and relatively low

appear with tragic regularity in the press, including the

pay—drive many family lawyers to burn out, leaving a

1997 murder of suburban Philadelphia lawyer Stephanie

shortage of savvy advocates.

“It’s hard to find attorneys who are good and who

LEX TEXT & CONTEXT

know the difference between a nasty divorce and actual abuse,” she said. In Philadelphia, a new nonprofit founded by attor-

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ney Shana Weiner, ’13, aims to expand the pool of qualified advocates. Dinah Inc. refers domestic abuse survivors to attorneys it trains to become effective advocates for Jewish victims. The organization serves

In 1988, at a program on domestic violence Hirsh

as the client’s point of contact, from intake to court

organized for Philadelphia-area rabbis, a female cleric

accompaniment—when needed—Weiner said.

presented best practices, such as referring victims to

After conducting intake interviews, Dinah matches

counseling organizations. Hirsh recalled that older male

clients with attorneys who agree to handle the cases

rabbis in attendance had countered that it was better to

pro bono out of their offices, in exchange for receiving

counsel couples within the synagogue.

umbrella liability coverage and CLE training. When Weiner couldn’t find a curriculum for training attorneys about orders of protection and domestic

back home after counseling “can put the woman in

violence in the Jewish community, she decided to

incredible danger.”

develop one. Dinah has begun offering CLEs that combine legal

Rosenberg said that clergy are increasingly more willing to refer victims to social workers and other

training with education on the dynamics of abusive

experts. But it’s one thing to recognize the limits of

relationships and victim behavior, Weiner said, not-

one’s expertise in helping a victim, Rosenberg said, and

ing that well-intentioned but uninformed remarks can

another to disengage when an abuser steps forward to

inhibit abuse survivors from seeking help.

admit wrongdoing.

JWI, the successor to B’nai Brith Women, has been

“It’s very gratifying to the clergy to say: ‘I accept

working to educate clergy about domestic violence

you. God loves you,’” said Rosenberg, the co-chair of

since the 1990s, and numerous advocacy organizations

JWI’s clergy task force.

have provided programs in schools and Jewish youth

Reliable statistics on the number or frequency of

organizations that educate adolescents about healthy

domestic violence incidents within the Jewish com-

behavior in relationships and toxic masculinity.

munity simply don’t exist, Rosenbloom said, “because

Many victim advocates say that rabbis in various branches of Judaism have made visible strides in recent decades. “It’s spoken of more often,” said Rabbi Richard

Limited resources put many Jewish abuse victims in a bind.

Calling such an intervention “the worst thing you could do,” Hirsh said that sending a troubled couple

nobody has funding to do a real survey.” If decades of education and outreach efforts in the Jewish community have borne fruit, the harvest has not been vast.

Hirsh of Congregation M’kor Shalom in Cherry Hill,

In the 15 years since Tucker was denied space in a

N.J., a member of a national clergy task force that JWI

synagogue to lead an educational domestic violence

created. “It’s even changing, though more slowly, in

program because no one believed it was a problem,

the Orthodox and Hasidic community, where there’s a

Shalom Bayit has made inroads, building up an

practice of keeping things insular.”

85-member rabbinic advisory council. Nevertheless, 27

Much of the change reflects a shift from male to

years after embarking on community education efforts,

female clergy, Hirsh said, adding that the ordination of

Tucker said “we still get a surprised response: ‘Really? It

women has eclipsed that of men in the last 30 years.

happens in the Jewish community?’”

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SLIVER OF THE FULL MOON: WHERE THE LAW FAILS TO PROTECT ABUSE VICTIMS

International report as a human-rights violation. “That got Congress’ attention,” said Professor Melissa Tatum of the James E. Rogers College of Law at the University of Arizona, where she previously directed the Indigenous Peoples Law and Policy Program. When Congress reauthorized VAWA in 2013, Tatum said, lawmakers were willing to restore tribal authority over some crimes involving domestic violence committed by non-Indians. Though hailed as a huge victory at the time by victim advocates, it was not easily won, said Alfred Urbina, a former attorney general of the Pascua Yaqui Tribe who was appointed a tribal judge in July 2019. Washington lawmakers doubted that Indian courts possessed the will or the capacity to afford justice to non-Indians, said Urbina, who testified on behalf of the reauthorization in 2013. “They said: ‘You’re going to get a limited class of cases, because we don’t trust you to deliver due pro-

A JURISDICTIONAL PATCHWORK

cess,’” Urbina recalled. Initially, just a handful of tribes gained authority to charge or prosecute non-Indians in the Special Domestic Violence Criminal Jurisdiction program (SDVCJ). Urbina enlisted Tatum to develop a protocol for training police, prosecutors and public defenders in the Pascua Yaqui Tribe.

Domestic violence affects Native Americans in dis-

Implementing tribes gained authority to charge

proportionately high numbers. But jurisdiction over

non-Indian abusers for violating orders of protection

incidents involving abuse that occurs on Indian land

or committing domestic violence and dating violence

may fall to federal, state or tribal officials, depending

against victims on tribal lands.

on the precise location, the category and the severity of crime, the race of the perpetrator and the race of the

Going to Bed Afraid

victim, creating a patchwork of cracks through which abuse survivors can fall.

For all its ambition to protect Native American abuse vic-

More than 55 percent of American Indian and

tims, the 2013 VAWA reauthorization did not empower

Alaska Native women had experienced intimate-partner

tribal authorities to charge non-Indian abusers with

violence in their lifetimes, according to a 2016 report

crimes against children or for the crimes of stalking,

published by the U.S. Department of Justice’s National

sexual assault or sex trafficking that occur outside the

Institute of Justice.

bounds of a domestic relationship. Nor did tribal police

Some 96 percent of intimate-partner incidents involving sexual violence were committed by non-In-

gain the power to charge non-Indians who assault them when they respond to domestic emergencies.

dians against native women, the report found, showing

“It is just the first sliver of the full moon that we need

that they are much more likely to be victimized by

to protect us,” domestic violence survivor Lisa Brunner

non-Indian partners. These grim statistics are largely the legacy of a 1973 fight that erupted during an annual celebration on the

of the White Earth Ojibwe Nation said in a 2018 report published by the National Congress of American Indians assessing the first five years of the SDVCJ.

Port Madison Indian Reservation in Washington State,

The report touts the success of the program’s first

when Mark David Oliphant was arrested for assaulting

five years, in which 18 implementing tribes tallied 143

a Suquamish tribal police officer who intervened. A

arrests of non-Indian abusers that led to 74 convictions,

non-Indian, Oliphant claimed that tribal police lacked

five acquittals and 24 cases pending. Notably, the report

jurisdiction to arrest him, an argument that wended its

adds that no petitions for habeas corpus review were

way to the U.S. Supreme Court, which agreed in 1978,

brought in federal court, affirming the capacity of tribal

stripping all tribal police of authority over crimes com-

authorities to fairly prosecute non-Indian domestic vio-

mitted by non-Indians on Indian land.

lence defendants.

For 35 years, the landmark ruling provided an

Yet, as of early 2019, Urbina said, just 25 of some 150

automatic stay-out-of-jail card to non-Indians who

tribes in the U.S. that maintain active courts with the

committed crimes on Indian land, unless federal or

capacity to exercise tribal jurisdiction had opted in.

state authorities decided to prosecute.

“You’re not seeing benefits trickling out to Indian

The rates of sexual violence against native women

country,” he said. “It’s like they’re in the 1970s. It’s

swelled to extremes described in a 2006 Amnesty

almost the ‘haves and have nots.’ It’s based on a tribe’s

LEX TEXT & CONTEXT

13

Yet that outcome was hardly assured in the hyper-partisan environment on Capitol Hill, where nine Republican members of the House Judiciary Committee sought to strip all tribal jurisdiction provisions from the law. Rep. James Sensenbrenner of Wisconsin had claimed during a committee hearing that the provisions revoked “the constitutional rights of someone who happens to have crossed a reservation line and ends up being accused of domestic violence.” And the 2019 reauthorization has yet to be approved in the U.S. Senate, where Republicans are not eager to support a provision that expands the authority of law enforcement to strip the right to carry a gun from those who have records of stalking or intimate partner abuse in dating relationships. In the meantime, the enduring limitations on tribal authorities to police criminal activity by non-Indians create fertile grounds for potential abusers to establish a presence, Tatum said. At least anecdotally, some tribes believe that drug traffickers have targeted Indian

“A lot of tribes are not moving forward because of cost. That’s potentially thousands of victims that are not seeing any kind of justice.”

country as a place of refuge for activities such as cooking methamphetamines. “There’s a perception that non-Indian criminals are moving operations into Indian country to avoid detection,” Tatum said. “It has nothing to do with domestic violence, but it’s creating opportunities for criminals. We need to figure out if it’s true. The jurisdictional patchwork makes it impossible for (police) to do their job.” New dangers loom for potential victims in states such as North Dakota, where the oil industry is fueling an influx of transient, chiefly non-Indian, workers. “The increased rates of non-Indian violence perpetrated against native women in relation to extractive industries is in large part due to the presence of ‘man camps’ on or near reservation lands,” Professor Sarah Deere of the University of Kansas testified before Congress in March. The chief justice of the Prairie Island

ability to bring resources.” Over the last two years, Congress has allocated some

Indian Community Court of Appeals, Deere cited in her testimony a 2015 Marshal’s Service report that found a

$2.5 million for tribal courts that implement the program,

significant percentage of the booming workforce hired

enough for 10 or 15 tribes to each hire a prosecutor and a

for temporary oil-industry jobs near the Fort Berthold

public defender, Urbina said. “A lot of tribes are not moving forward because of cost,” he said. “That’s potentially thousands of victims that are not seeing any kind of justice. You hear the frustration of the advocacy groups. The scope is an emergency in places. You’re experiencing this in small communities. People are going to bed at night and they’re afraid.” In April 2019, the Democratic-controlled House of Representatives reauthorized VAWA again, closing

Indian Reservation in North Dakota were sex offenders who had failed to register with either tribal or federal authorities. Victim advocates know too well that vigilance is required. “We can’t go backward,” Hidalgo said. “Progress has been made, but this is still a significant crisis in terms of intimate partner violence and sexual assault. How do we keep including others?”

immense gaps that had left children, responding tribal police officers and victims of sex trafficking and sex

Sarah Greenblatt is the director of communications at

assault outside of domestic relationships vulnerable.

the Kline School of Law.

AFTER MIRANDA: LEX TEXT & CONTEXT

15

by Sarah Greenblatt

Founding father Alexander Hamilton’s historic and legal relevance came into vivid focus at events the law school hosted at the Thomas R. Kline Institute of Trial Advocacy and at Philadelphia’s National Constitution Center. A mock trial of Vice President Aaron Burr and a discussion among constitutional scholars served as reminders that Hamilton’s enduring legacy resonates from Broadway to the U.S. Supreme Court to the Trump White House.

16

AFTER MIRANDA: HAMILTON TAKES THE STAGE

Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia presided over a mock trial that was intended, finally, to determine if Burr was guilty of murdering Hamilton, whom he shot to death in an 1804 duel. Burr had never before been tried. Legal luminaries from Philadelphia and beyond joined students in trying the case.

Former Acting Solicitor General Neal Katyal and Former Solicitor General Greg Garre took part in the trial, where witnesses played by law students and attorneys in period costumes testified for the prosecution and the defense in proceedings inspired by the blockbuster Broadway phenomenon, “Hamilton.”

The prosecution was led by former U.S. Solicitor

Revolutionary War who went on to promote the U.S.

General Gregory Garre (now a partner at Latham &

Constitution and craft the nation’s financial system,

Watkins), Andy Stern, a partner at Kline & Specter

died in his 40s. Burr, who proved his mettle in battle

and leading trial lawyer in Philadelphia, and Elizabeth

before becoming a revered and influential U.S. Senator

Bertolino, a student at the Kline School of Law.

from New York and Thomas Jefferson’s vice president,

The defense was led by former acting Solicitor General Neal Katyal (now a partner at Hogan Lovells),

brought his own political trajectory to an end with the duel.

Senior Training Adviser Patricia McKinney of the

Witnesses for the prosecution included Judge

Philadelphia District Attorney’s Office and Robert

Nathaniel Pendleton, who aided Hamilton as his second

Goggin, a student.

in the duel and was played by student Robert Waeltz;

The half-day trial unfolded in the grand courtroom

Eliza Hamilton, the slain treasury secretary’s widow,

of the institute, where witnesses played by law students

played by Professor Rachel López, and pistol manufac-

and attorneys wearing period costumes testified for the

turer Robert Wogdon, played by Guy D’Andrea of the

prosecution and the defense in proceedings inspired by

Philadelphia firm Laffey, Bucci & Kent.

the blockbuster Broadway phenomenon, “Hamilton.” “Some might say that this trial is long overdue,” Tom

The three, echoing arguments made by Garre and Stern, portrayed Hamilton as a dizzyingly ambitious

Kline, founding partner of Kline & Specter and law school

and accomplished striver, a devoted if conflicted hus-

benefactor said, welcoming alumni and other attorneys

band and a heroic Revolutionary War marksman whose

who took part in the unique CLE program as “jurors.”

respect from Washington inspired the enmity of Burr,

The trial shone a spotlight on towering figures in

who envied his proximity to power. As the duel began,

American history whose bitter political rivalry altered

they said, Hamilton shot his pistol into the air, signaling

its course as well as their own fortunes. Hamilton, the

that he had no desire to harm Burr.

treasured aide of Gen. George Washington during the

Elizabeth Bertolino and David Williams prepare for the trial.

LEX TEXT & CONTEXT

Burr, played by Kline & Specter partner David

of a highly publicized affair, published critiques that

Williams, was joined in his defense by attorney and

undermined his former mentor’s presidential ambitions.

political ally William Van Ness, played by student

Hamilton’s heralded skill at marksmanship combined

Michael Wentz, and pistol manufacturer John Barton,

with signs that he’d set a hair trigger on his pistol,

played by Anthony Carissimi, judicial clerk for Judge

forced Burr to shoot in self-defense, they claimed.

Theodore McKee of the U.S. Court of Appeals for the Third Circuit. The witnesses joined Katyal and McKinney in por-

The jury returned a 25-24 verdict favoring Burr in the trial, which was organized and planned by Professor Lisa Tucker, Professor and Trial Advocacy program

traying Burr as a man betrayed when his one-time

Director Gwen Roseman Stern, Trial Advocacy program

protegé, undone by the death of his son and the taint

Assistant Director Abbie Heller and Andy Stern.

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Witnesses await the start of the trial.

18

AFTER MIRANDA: HAMILTON TAKES THE STAGE

“No other country allows a presidential candidate who comes in second to win,” Chemerinsky said. “Alexander Hamilton deserves a lot of blame for that.”

1

2

That evening, the law school co-sponsored a panel discussion at the National Constitution Center that explored Hamilton’s lasting influence. Moderated by National Constitution Center CEO Jeffrey Rosen, the discussion featured Judge Jackson, Berkeley Law Dean Erwin Chemerinsky, University of Kentucky College of Law Professor Joshua Douglas and Vanessa Nadal, legal counsel for 5000 Broadway Productions and the wife of “Hamilton” creator Manuel Lin Miranda. Hamilton deserves tremendous credit for shaping

3

our system of government and considerable blame for permitting vulnerabilities in our electoral processes, Chemerinsky said. The constitution that was ultimately adopted largely reflected Hamilton’s vision, Chemerinsky said, noting that the federalism he promoted has enhanced interests such as national security and desegregation and that the judicial review he promoted helped ensure that laws found to violate the constitution will be struck down. On the other hand, Chemerinsky said, Hamilton’s “elitist disdain of the people” drove him to support the Electoral College,

4

which has allowed presidents to take office even though 5

they have not won the popular vote. “No other country allows a presidential candidate who comes in second to win,” Chemerinsky said. “Alexander Hamilton deserves a lot of blame for that.”

1 — Berkeley Law Dean Irwin Chemerinsky 2 — National Constitution Center CEO Jeffrey Rosen 3 — Judge Ketanji Brown Jackson 4 — 5000 Broadway Productions Legal Counsel Vanessa Nadal 5 — University of Kentucky Law Professor 6

Joshua Douglas 6 — Panelists discuss Alexander Hamilton’s enduring impact

LEX TEXT & CONTEXT

Noting that the Electoral College ensures that pres-

19

The Hamilton Education Program is helping high

idents have received support from diverse parts of the

school students around the globe to develop a keen

country, Douglas said some states are pursuing “pop-

interest in American history and government, Nadal said,

ular vote plans” that direct electors from their state

noting that 20,000 teens in New York City alone have

to support the winner of the popular election. It’s not

seen the play, while others are gaining access as the show

clear that this “workaround” is constitutional, Douglas

opens in a growing number of cities.The musical puts the

said, adding that the states that have enacted such laws

founders’ strengths and frailties on vivid display, bring-

to date are all led by Democrats.

ing them to life as real people, Nadal added.

The panelists agreed that Hamilton’s legacy has

Hamilton’s thinking as captured in the musical

gained a massive infusion of new interest, thanks to

has even found its way into the judiciary, Jackson said,

Sarah Greenblatt is

the play that has become an international phenomenon

adding that she cited lyrics from “The Room Where It

the director of

since opening on Broadway in 2015.

Happens” to expound on an issue of standing in a 2016

communications at the

ruling: “You don’t get a win unless you play in the game.”

Kline School of Law.

TEXT AND SUBTEXT

by Melissa Murray

In 1967, the U.S. Supreme Court ruled in Loving v. Virginia, the landmark U.S. Supreme Court decision that invalidated bans on miscegenation and interracial marriages. Loving is credited with dismantling the formal legal impediments to interracial marriage. This is true as a matter of text; but Loving’s subtext reveals a more complicated story. Although Loving decriminalized interracial marriages, post-Loving, law continued to actively discourage interracial love and romance, albeit through different means. In the years following Loving, white women routinely lost custody of their white children when they remarried or dated black men. Such cases were especially pronounced in the South, where bans on interracial marriage persisted until Loving made such laws unconstitutional.

Consider Ethridge v. Ethridge. There, a white

subject to her “continued good conduct.”

father successfully sought a modification of

The Supreme Court of Louisiana reversed

custody upon learning that his ex-wife had

the trial court’s judgment. Although the high

remarried and become pregnant by a black

court did not refer explicitly to race, the fact

dentist. Despite evidence that the children

of Sheila’s interracial romance haunted the

LEX TEXT & CONTEXT

21

wished to return to their mother and her

deliberations. The “embarrassment and inju-

new husband and despite evidence that “the

ries which might be sustained by the children”

mother and children were in better circum-

were likely not just those associated with a

stances than they had ever known,” with the

parent’s sexual conduct but with conduct that

decision was hardly a full-throated endorse-

mother’s new husband “desirous of support-

also transgressed racial boundaries—bound-

ment of interracial relationships. Only a

awarded Sheila custody, the trial court’s

ing the wife and her children,” the trial court

aries that persisted, even in Loving’s wake.

decade after Loving, the court noted that

agreed with the father and modified the cus-

And while a series of “infrequent indiscre-

interracial romances remained a topic of gos-

todial order accordingly.

tions may be born out of human frailty” and

sip and scandal. And even as it credited Sheila

thereby overlooked, in this case, the moth-

Schexnayder’s decision to abandon her rela-

On appeal, an Alabama intermediate appellate court upheld the lower court’s

er’s “open and public adultery in defiance of

tionship, the court made custody contingent

judgment, despite its own reservations.

generally accepted moral principles” could

upon her “continued good conduct”—that is,

Although the mother insisted that the trial

not be similarly dismissed. Such conduct

staying away from her lover and others like

court based its decision on her interra-

contravened the essential duty of parents “to

him. That a court could continue to keep

cial marriage, the intermediate appellate

demonstrate to his or her children qualities of

tabs on a litigant after making an award of

court “examined the record closely” and

good moral character.” If “a child

custody is unsurprising. A critical feature of

found “no overt evidence that the charge

divorce and child custody proceedings is that

[was] true.” Still, the appellate court mused

the court retains jurisdiction over the custody

“whether the trial court would have been

decision and thus is free to modify custo-

so persuaded if the mother were married

dial arrangements in the future to address

to a Caucasian dentist with an income of

changed circumstances and vindicate the

$56,000 per year.” But “speculat[ing] affir-

best interests of the child. Here, however,

matively” on such a provocative question,

the court’s continuing jurisdiction takes on a

the appellate court surmised, “would be

more controlling posture. Indeed, the court’s

contrary to [its] duty of review and [would]

decision might be understood as an infor-

dishonor the trial judge without sufficient

mal “ban” on any future interracial romances.

proof.” Mindful of its duty as an appellate

Obviously, an informal ban is meaningfully

tribunal and conscious of the norms of pro-

different from the criminal miscegenation

fessional courtesy, the court affirmed the

bans held unconstitutional in Loving. That

award of custody to the father. Circumstances involving interracial rela-

said, such an approach was likely to be as learns by example,” then

effective as any criminal ban. Living in a small

tionships that had not been formalized by

Sheila Schexnayder’s lax moral leadership

community, where her actions were likely to

marriage furnished courts with other osten-

would surely infect her children and lead

be closely observed, it is unlikely that Sheila

sibly race-neutral grounds on which to base

them astray.

Schexnayder felt free to resume her interra-

a custodial transfer. A mother’s unorthodox

The Louisiana Supreme Court’s decision

cial relationship—or even to engage in a new

sexual conduct shadowed the decision in

to reverse the trial court’s ruling, which had

interracial relationship at some point in the

Schexnayder v. Schexnayder. There, a trial

been affirmed by the intermediate appel-

future. The fear of losing custody of her chil-

court vested custody in Sheila Schexnayder,

late court, was highly unorthodox. Absent

dren may have been as effective a deterrent

despite evidence of her interracial, adulterous

a showing of an abuse of discretion, appel-

as an outright ban to seeking love across the

relationship transacted during her marriage. In

late courts generally defer to the trial court’s

color line.

issuing its ruling, the trial court made clear its

custodial determinations. Further, though

Cases like Ethridge and Schexnayder

views of the relationship, noting that Sheila’s

unwilling to actually name race, the high

complicate the narrative of unalloyed racial

conduct “was particularly scandalous and

court’s opinion nonetheless traded in stock

progress with which Loving is associated.

offensive to the sensibilities of the local com-

tropes that historically attended societal dis-

Although Loving removed the most intrac-

munity in that her lover was of another race.”

comfort with interracial relationships. It was

table legal punishments and impediments to

Still, the trial court was reluctant to strip

not just that Sheila Schexnayder was open

such relationships, as these cases make clear,

Sheila of custody—in part because of Loving,

and notorious and therefore unwilling to

it did not remove all legal punishments and

which seemed to put Sheila Schexnayder’s

keep her transgressive conduct under wraps.

deterrents. Through custodial awards, courts

shocking interracial romance beyond the

It was that, in conducting her relationship,

could continue to use the law to signal disap-

court’s reach. Further, Sheila had ended the

she cared little for the fact that her behavior

probation of interracial unions. In this regard,

relationship and “denie[d] having any con-

would both reflect poorly upon her children

subtext, as much as text, mattered.

tact with [her lover].” Noting that there was

and set a poor example for them.

no proof of any further misconduct and recognizing the presumption in favor of maternal

But it is the trial court’s opinion that is

Melissa Murray is a professor of law at New

perhaps most revealing about the continued

York University School of Law, where she is

custody of young children, the trial court

disapprobation of interracial romance, even

faculty co-director of the Birnbaum Women’s

awarded “provisional” custody to Sheila,

10 years after Loving. Although it ultimately

Leadership Network.

by Liz Glazer

One morning when I was a junior associate

LEX TEXT & CONTEXT

in the real estate department of a big New York law firm, I came into work after

23

going home to nap between a late night and an early morning. It was one of those weeks. I had two closings back to back. On

Law Journal. She and I got engaged and planned a 2012 civil

Monday, I had billed 21 hours out of 24, and I think this was a

union in Chicago that started to seem more traditional than I

Wednesday, but I had lost track. I got off the elevator and saw

had ever anticipated, ultimately leading to the cancellation of

a partner who always seemed extremely happy to be at work.

the event and our breakup, as well as the publication of “Civil

I heard a rumor that this guy skipped to the office every day

Union Equality” (in Cardozo Law Review de novo), in which

from his home in Greenwich Village, and based on everything

I argued that civil unions—marriage equivalents that served

I ever observed about him, that seemed correct.

as a temporary solution to the former problem of unequal

He was one of the truly happy partners. He seemed fueled

marriage rights—could remain as permanent alternatives to

by the joy of what he did and moved up the law firm ranks

marriage for people with nontraditional relationship struc-

relatively easily, in the “love-what-you-do-and-you’ll-nev-

tures. After we broke up, I had anal sex with two people at the

er-work-a-day-in-your-life” sort of way. He was genuinely

same time and published “Sodomy and Polygamy.”

upbeat (maybe because of the skipping) and not sarcastic and

Just kidding, but I did write an article with that title for the

when I shuffled off the elevator on that perhaps-Wednesday

Columbia Law Review Sidebar in 2010, in response to Professor

he greeted me by saying, “Hello Liz! Are you

Adrienne Davis’s wonderful article proposing

having fun?!”

legal structures for polygamous relationships

I didn’t know how to answer at first. The

based on corporate partnership law. During

thoughts I had were something like, “Are you

my time as a law professor, I appreciated and

kidding? Fun?! FUN??!! Maybe, MAYBE, all of

admired the writing of other law professors. I

this is FINE but I haven’t slept since…what

remember in particular admiring one professor

day is today? No. NO. I am NOT having fun.

whose office I would pass on the way to mine

I didn’t even know that FUN was on the

in the spring semester of 2013. He had written

table!” I responded something like, “Yeah”

literally hundreds of articles, his office was

and continued shuffling to my desk to open

always buzzing with activity, and he seemed

the hundred emails I had received since I left

to truly love his work. He seemed like he was

work a couple of hours earlier.

having fun.

I kept thinking about the interaction.

That same semester, someone I had a crush

I believe it made an impression on me because

on told me I should do standup comedy. She

it seemed like he wanted to connect about

told me I could do it for 10 minutes on a show

how much fun our job was. I mean, this was

she was producing, which meant I would see

someone who’s been quoted about the job

her, so I did it. I had been speaking in front of

that we shared saying, “The fun of it, the

classes at that point for seven years but in the

excitement of starting with a bare piece of ground and see-

absence of a looming final exam, I wasn’t sure what qualified as

ing something actually built” is thrilling. It was like he had

material. On my way out the door to the show, I noticed a pack-

a crush on someone and couldn’t help talking about her to

age I hadn’t expected, decided to open it on stage, and it turned

everyone he knew, except his crush was our job and he was

out to be 18 vinyl shoulder covers my mother had sent to me

talking to tired junior associates.

because she noticed my fluffy white-furred cat Mona perched in

I was jealous and inspired and a few months later, left that

my closet on top of the dark suits I would wear to school.

job for a tenure-track teaching job. There were fewer emails,

Thankfully, moms, cats, vinyl shoulder protectors and

except right before finals, and for the most part I could sleep

the element of surprise when they all come together on stage

rather than just nap. I liked writing articles to prove thesis

struck an audience as funny on March 5, 2013.

statements I had thought of myself and designing lectures

That night, I felt like I had a professional orgasm, which

that I got to develop over years. I’ve always loved explaining

was kind of like a regular orgasm, but I was a hundred percent

things to people and connecting with someone the moment

sure it happened. Eventually, I quit law to do standup com-

they understand something I’ve just explained. That’s been

edy because of that night, but I believe that night happened

fun for me ever since I would play school with friends and

the way that it did because of the lawyers and law professors

family members, and I liked that my job had become what I

I had met who showed me that the point was to find fun in

played for fun when I was a kid.

my work.

The articles I wrote during the nine years I taught law were for the most part about my own life. I dated a woman who had

Liz Glazer is a standup comedian, actor and writer living

only dated men before me when I wrote “Sexual Reorientation

in Los Angeles, California. She is working on a standup

and Optimizing Orientation,” about the legal implications of

album called “(Very) Early Retirement,” which she aims to

bisexual erasure, which was published in The Georgetown

bring to law schools around the country in 2019-2020.

24

STANDARDS DEVIATION

Title

STANDARDS DEVIATION by John Cannan

Throughout the nation’s history, three words in the Eighth Amendment have proved particularly slippery, eluding definition. A fundamental question underlies the ongoing debate about evolving standards of decency: What does “cruel and unusual punishment” mean?

“What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous—torture and the like,” Justice Joseph McKenna, Weems v. United States, 1910

Scale model of the Euthanasia Coaster Julijonas Urbonas, 2010 “Euthanasia Coaster” is a hypothetic euthanasia machine in the form of a roller coaster, engineered to humanely—with elegance and euphoria—take the life of a human being. Riding the coaster’s track, the rider is subjected to a series of intensive motion elements that induce various unique experiences: euphoria, thrill, tunnel vision, loss of consciousness, and, eventually, death.

LEX TEXT & CONTEXT

“The experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias,” Thomas Jefferson, A Bill for Proportioning Crimes and Punishments, 1779

25

“What was ‘cruel and unusual’ under the Eighth Amendment was to be determined without reference to the particular offense is confirmed by all available evidence of contemporary understanding,” Justice Antonin Scalia, Harmelin v. Michigan, 1991

Textualists, intentionalists, pragmatists and natural law theorists have all mulled what the Framers had in mind when they adopted the Bill of Rights.

“The Clause only outlawed certain modes of punishment,” Justice Antonin Scalia, Harmelin v. Michigan, 1991

“The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes, which you say you have heard insisted on by some, I assure you was never mine. It is only the sanguinary hue of our penal laws which I meant to object to,” Thomas Jefferson, letter to Edmund Pendleton, 1776

“We know that the Framers’ concern was directed specifically at the exercise of legislative power. They included in the Bill of Rights a prohibition upon ‘cruel and unusual punishments’ precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought ‘cruel and unusual punishments’ were,” Justice William J. Brennan, Furman v. Georgia, 1972

“Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse…Power might be tempted to cruelty. This was the motive of the clause. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked. We say ‘coercive cruelty,’ because there was more to be considered than the ordinary criminal laws. Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister,” Justice Joseph McKenna, Weems v. United States, 1910

26

STANDARDS DEVIATION

Should standards of decency evolve, or must they remain static, proportional?

“The clause of the Constitution… may be…progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice,” Justice Joseph McKenna, Weems v. United States, 1910

“The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Justice Earl Warren, Trop v. Dulles, 1958

“The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions,” Justice Antonin Scalia, Harmelin v. Michigan, 1991

“Punishments I know are necessary, and I would provide them, strict and inflexible, but proportioned to the crime,” Thomas Jefferson, letter to Edmund Pendleton, 1776… “If the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed,” Thomas Jefferson, A Bill for Proportioning Crimes and Punishments, 1779

“Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know ‘that the words of the (Clause) are not precise, and that their scope is not static,” Justice William J. Brennan, Furman v. Georgia, 1972

“…Crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal,” Justice Joseph McKenna, Weems v. United States, 1910

LEX TEXT & CONTEXT

“If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes,” Justice William J. Brennan, Furman v. Georgia, 1972

Debate focusing on capital punishment began with the Founders, though little has been resolved in succeeding centuries.

“Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment… The punishment of death is therefore ‘cruel and unusual,’” Justice William J. Brennan, Furman v. Georgia, 1972

27

“While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are “cruel and unusual,” proportionality does not lend itself to such analysis…The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate—and to say that it is not. For that realworld enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values,” Justice Antonin Scalia, Harmelin v. Michigan, 1991

“The punishment of death should be abolished, except for treason and murder,” Thomas Jefferson, autobiography draft, 1821

“The Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes...The dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the painfree use of lethal injections in mine-run cases. But that’s just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has rejected time and time again,” Justice Neil Gorsuch, Bucklew v. Precythe, 2019

“Proportionality review is one of several respects in which we have held that ‘death is different,’ and have imposed protections that the Constitution nowhere else provides,” Justice Antonin Scalia, Harmelin v. Michigan, 1991

John Cannan, a research and instructional services librarian at the Kline School of Law, wrote “A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History” in the Law Library Journal, which was cited by Chief Justice John Roberts in the Supreme Court’s 2015 ruling.

28

PERSPECTIVES

FREE THE HAIR by Caren Chesler and Sarah Greenblatt

LEX TEXT & CONTEXT

29

Professor Wendy Greene is both a prolific legal scholar whose work has shaped numerous court rulings and a committed activist who has set her sights on nothing less than re-engineering Title VII of the 1964 Civil Rights Act. Greene, who joins the Kline School of Law faculty in

Most recently, Greene’s work was reflected in

2019-20, has produced a large and influential body

California’s Creating a Respectful and Open Workplace

of scholarship that explores the hyper-regulation of

for Natural Hair (CROWN) Act, which treats discrimina-

African descendants and others of color, from Muslim

tion based on natural hairstyles as race discrimination

women wearing hijabs, to black men, women and girls

and prohibits employers and schools from enforc-

donning natural hairstyles like braids, locs and Bantu

ing grooming policies that ban natural and protective

knots, or even dying their hair blonde.

hairstyles African descendants commonly wear. After

Focusing, initially, on workplace discrimination

receiving unanimous votes in the California Senate and

by employers who enforce grooming policies that dis-

Assembly, the Crown Act was signed into law by Gov.

proportionately affect individuals of color, Greene has

Gavin Newsom on July 3, 2019.

expanded her view to include educational institutions

“Natural hair bans put African descended women

and more deeply to conceive of race as a social con-

and girls in a precarious Catch 22,” Greene testified

struct—an argument that is gaining traction in the

during a state Senate Judiciary Committee hearing

courts.

in March. “Either don your natural hair, at the risk

As an activist, she has woven different strategies,

of lawfully being deprived of employment and/or an

seeking to influence the opinions of courts, legisla-

educational opportunity, or don straight hair, at the

tors, policy makers and the public—all with the aim

risk of enduring consequential harm to your psycho-

of affording the protections that Congress intended in

logical physical and physiological well-being.”

passing Title VII.

Greene cites studies showing that women who use

“There’s a long history of marking individuals

heated straightening irons are subject to permanent

racially, based upon the texture of one’s hair, and

hair loss and traction alopecia, while those exposed

thinking that curly, or ‘kinky’ or ‘wooly’ hair texture

to the harsh chemicals deployed to conform to white

is only going to be possessed by those that are African

standards of beauty may face a heightened risk of

descended. It was the basis of enslavement,” Greene

breast and uterine cancer, fibroids and hormone-re-

said in an interview. “Today, it continues to be the

lated infertility.

basis of racial discrimination, exclusion and segregation in workplaces and other spaces.”

Adverse physical and emotional effects of processing natural hair are among a range of topics Greene

Greene’s scholarship has gained a high profile of

will explore in her forthcoming book, “#FreetheHair:

late, with work that previously shaped court rulings

Locking Black Hair to Civil Rights Movements,” slated

now exerting influence on municipal regulations and

for publication in 2020 by University of California-

state laws that have garnered extensive media coverage.

Berkeley Press. The book will also explore natural hair

30

PERSPECTIVES

discrimination on a global scale and its connections to

sought to overturn nearly 40 years of legal precedent

broader civil rights activism and discourse around the

declaring Title VII’s prohibitions against race discrim-

policing of black bodies, body shaming, bullying and

ination did not cover natural hair discrimination that

racial disparities in school discipline.

African descendants routinely suffer—with the excep-

Greene began teasing out a new analysis of Title

tion of bans against afros. The government challenged

VII with her 2008 article, “Title VII: What’s Hair

an employer’s revocation of a job offer as intentional

(and Other-Race-Based Characteristics) Got to Do

race discrimination because the African American

with It?” in the University of Colorado Law Review.

Wendy Greene, seated

applicant refused to cut off her locs. After the 11th

The article stretched the boundaries of Title VII pro-

at head of table at far

Circuit’s first dismissal of the case, Greene partnered

hibitions against workplace discrimination, arguing

right, confers with team

with the NAACP-Legal Defense Fund to file an amicus

that the courts must abandon the notion that race is

drafting guidelines for

brief in support of the EEOC’s petition for a rehearing

an immutable, biological characteristic and extend

New York City.

en-banc.

protections to discrimination on the basis of char-

Greene’s role in EEOC v. Catastrophe Management

acteristics that are mutable or changeable, such as

Solutions prompted an invitation from the University

hairstyles.

of Miami Law Review, which published her “Splitting

Within three years, the article had an impact. In

Hairs: The Eleventh Circuit’s Take on Workplace

2011, the Chicago Commission on Human Relations

Bans against Black Women’s Natural Hair in EEOC v.

cited Greene’s work when it issued a unprecedented

Catastrophe Management Solutions.” With the 11th

ruling that a nightclub engaged in unlawful race

Circuit still deliberating on the EEOC’s petition for a

discrimination by barring the entry of two African

rehearing, the article provided Greene with a platform

American men because they wore braided hairstyles.

to describe the immutability doctrine as a “legal fic-

A few years later, both the Colorado article and Greene’s “Black Women Can’t Have Blonde Hair…in

tion,” based upon the judges’ own ideas that race is a biological construct and genetic in nature.

the Workplace”—in the Iowa Journal of Gender, Race

In ruling on the appeal, the 11th Circuit discussed

& Justice—shaped the legal arguments of the Equal

race as a social construct, citing Greene as an authority

Employment Opportunity Commission in a pivotal

on the topic.

Title VII race discrimination case, EEOC v. Catastrophe

“This is one of the few times a federal court

Management Solutions. With this case, the EEOC

engages in the conversation about the definition of

race,” Greene said. “They didn’t have to. However,

LEX TEXT & CONTEXT

they engaged these competing notions of race: is it biological, social or is it cultural?” While the 11th Circuit Court of Appeals ultimately

31

dismissed the EEOC’s case, a dissenting opinion echoed Greene by referring to the immutability doctrine as “a fiction” and acknowledging for the first time that discrimination based upon natural hairstyles

its efforts to move Congress to enact the Equality Act

other than afros can constitute unlawful race discrimi-

and state legislatures to address loopholes in state and

nation under Title VII.

local non-discrimination protections that leave some

Greene’s examination of the ways in which notions of identity inform anti-discrimination law extends

individuals vulnerable to workplace discrimination resulting from employers’ misperceptions.

beyond her work on grooming and appearance dis-

In March 2019, the U.S. House of Representatives

crimination. Borrowing concepts in the Americans

passed the Equality Act, amending Title VII and other

with Disability Act that bar discrimination

federal civil rights statutes to prohibit

based on perceived disabilities, Greene

discrimination based on sexual orienta-

has also explored a common phenomenon

tion and gender identity, while a lesser

that she has dubbed “misperception dis-

known part of the Act would provide

crimination”— discrimination arising from

explicit coverage for individuals who suf-

an employer’s erroneous perception of

fer “misperception discrimination.”

a plaintiff’s racial, religious or ethnic

If enacted by the Senate, Greene said,

identity.

the statutory protections the Equality Act

While some courts contend that a

would provide “would be huge.”

plaintiff lacks a Title VII claim unless he

Greene has also seen her work influ-

identifies exactly how the employer per-

ence municipal regulations. In February,

ceives him, Greene has nudged jurists

the New York City Commission on Human

into recognizing that adverse employ-

Rights cited her legal scholarship when

ment decisions resulting from incorrect

it issued groundbreaking guidelines that

characterizations of an employee or appli-

ban natural hair discrimination in public

cant’s racial, ethnic or religious identity are unlawful. The U.S. District Court for the District of Maryland in 2015 allowed a plaintiff to proceed with her misperception discrimination case based on national origin, citing a seminal article Greene published in 2013 in the University of Michigan Journal of Law Reform, “Categorically Black, White or Wrong: ‘Misperception Discrimination’ and the State of Title VII Protection.” The article critiques a movement

“It is quite amazing to see the kind of impact that it’s having within the legal circles but most importantly, in people’s daily lives.”

among federal courts that impose what

and charter schools, workplaces and public accommodations. Observing that lawyers and civil rights advocates tend to focus on the courts, Greene contended that reformers have more tools in their arsenal. “It’s important for us to focus on legislative bodies and administrative agencies as places for real progressive change,” she said. “It may take a long time to move the ball within the federal judiciary, but there can be more immediate success on the municipal and state level.” In the meantime, Greene’s influence

Greene describes as an “actuality requirement” on

on New York’s guidelines has triggered media atten-

Title VII plaintiffs whose identities are contested. To

tion. In February 2019, Teen Vogue—a forum where

enforce their statutory rights against unlawful discrim-

legal scholars typically do not appear—showcased

ination, these plaintiffs must first prove their “actual”

Greene, and a few months later, NowThis News in

racial, ethnic or religious identity. Greene argues that

conjunction with TIME’S UP released a feature story

this trend obscures the chief question in discrimi-

on her cutting-edge advocacy.

nation cases: Did the individual suffer invidious and

“My goal was to shape the opinions of courts

differential treatment on the basis of an impermissible

and later legislators and policy makers, but it’s been

characteristic?

really great to shape public opinion through legal

While some federal courts have followed the

scholarship,” Greene said. “It is quite amazing to

Maryland ruling, they remain divided as to whether

see the kind of impact that it’s having within the legal

individuals facing this brand of discrimination are cov-

circles but most importantly, in people’s daily lives.”

ered under Title VII. So Greene has turned to other levers of power.

Caren Chesler is a freelance journalist. Sarah

In 2018, Greene assisted the Human Rights

Greenblatt is director of communications at the

Campaign Foundation, the educational arm of the nation’s largest LGBTQ civil rights organization, in

Kline School of Law.

CONTENT PATROL: THE PERMEABLE BARRIER BETWEEN GOVERNMENT AND THE PRIVATE SECTOR by Caren Chesler

Rules about free speech are spelled out clearly

who joined the Kline School of Law faculty in

in the First Amendment. Governments can-

2018, in an interview. “I don’t have a constitu-

not infringe on one’s right to free speech. But

tional right to use Twitter. If Twitter wants to

the rules governing free speech in the private

kick me off, that’s their prerogative. But if the

domain are murkier. Bloch-Wehba is explor-

government wants to censor what I say, that’s

ing the ways that governmental entities—in

a constitutional problem.”

Europe and the U.S.—are nudging search

But as governments grow increasingly

engines, social media platforms and e-com-

concerned about toxic speech on online

merce businesses to decide what is appropriate

platforms—hate speech, racism, terrorist propa-

with the government’s approach

content. Governments hope that if these issues

ganda, fake news—the once-bright line between

to social media—which seems

get hammered out in the private sector, they

government censorship and private censorship

won’t set off alarms about free speech viola-

is fading, Bloch-Wehba said. European gov-

apropos, given that the wrong

tions. Her exploration of the topic in “Global

ernments in particular are taking steps to tell

she sees involves an infringement

Platform Governance” was published this year

private enterprise what kinds of content they

in Southern Methodist University Law Review.

want censored, while allowing platforms to

Professor Hannah Bloch-Wehba speaks freely about what’s wrong

on free speech.

“In American law, we distinguish between

make the ultimate decision on how to do it. This

when government censors individuals and when

process creates a permeable boundary between

private enterprise does it,” said Bloch-Wehba,

what’s public and what’s private.

“What we learn from the European example

But the new breed of European content

is that the relationship between the government

regulations is different, because they don’t so

and these platforms is much more complicated”

much force platforms to stop bad behavior as

than a stark divide between public and private

to assume new responsibilities. In this way,

censorship, Bloch-Wehba said. “The government

Bloch-Wehba said, the new kinds of content

is relying on private platforms and instructing pri-

regulations actually magnify private power

vate platforms to take certain steps.”

LEX TEXT & CONTEXT

33

to make decisions that would previously

raises concerns of its own, which Bloch-Wehba

Some of those steps involve requiring a

be made by government bodies. Yet plat-

is exploring in a forthcoming symposium issue

private entity to make legal decisions about

forms don’t have the same transparency and

of the Cornell Journal of International Law.

content, while others are technical, forcing the

accountability obligations as governments.

company to build tools that address the govern-

Nor are they elected.

“The government is saying we want you to build the tool to flag content that is illegal.

ment’s request. These tools allow platforms to

As a result, governments can force com-

And we want it to be accurate. But we don’t

proactively monitor and filter user-generated

panies to change their practices or deploy new

care exactly how you do it,” Bloch-Wehba

content—at the government’s behest.

ones on the state’s behalf. Governments can

said, noting that the platforms are also asked to

As the European governments impose

then hide behind the idea that these actions

build mechanisms for hearing challenges about

obligations to police user speech, new ques-

are being taken by a private actor, that this is

whether that content was actually unlawful.

tions are emerging about the immunity that

a business decision they made, that there’s no

Online platforms also need to be more

has historically shielded intermediaries from

government action here, and that’s clearly not

thoughtful about the technological tools they

liability for user-generated content.

true, Bloch-Wehba said.

are building to flag content they deem unac-

In Europe, Bloch-Wehba noted, there’s a

The media platforms “are really between

ceptable. But because these tools are likely to

willingness to erode the protections media plat-

a rock and a hard place here. I don’t think

be protected as trade secrets, Bloch-Wehba

forms have historically enjoyed, but that impulse

they’re cavalier about user rights, and I think

said, it’s hard to tell if companies are following

is also starting to take hold in the U.S., nibbling

they’re resistant to this idea of being deployed

the law when they root out violators.

at the Communications Decency Act, Section

like an arm of the state. But they don’t really

And unfortunately, the technology for

230, which has largely made platforms immune

have much of a choice anymore,” Bloch-

vetting content may not be accurate enough

from liability for content that users post.

Wehba said.

to safeguard free speech, Bloch-Wehba said.

“In both the United States and Europe,

Right now, the companies under scru-

Tumblr’s stumble is a case in point. The

there is increasingly a political appetite to

tiny in Europe are the big guns, like Twitter,

micro-blogging and social networking site

rethink: Is that a good idea? Do we want plat-

Google and Facebook, but new regulations

announced it would stop hosting adult con-

forms to be immune? Or do we want them, in

such as the European Copyright Directive

tent, after child pornography slipped through

fact, to be liable?” That political discussion is

will hold small ones to account as well. The

the company’s content filters. Tumblr CEO Jeff

further underway in Europe than it is in the

problem is, smaller companies are going to be

D’Onofrio announced the company’s decision

United States, she said,

less able to comply with these governmental

in 2018 and then rolled out a tool that automat-

demands, she said.

ically flagged “adult” content, but it was so

Bloch-Wehba believes the zeal with which governmental entities overseas are getting

“It’s already a burden on a company like

involved reflects a long history of European

Facebook to hire lots and lots of moderators to

efforts to regulate the online sector, which is

make these decisions about content,” she said.

“Obviously, Tumblr isn’t going to make

dominated by U.S. companies. Those efforts

As new regulations demand that companies

that tool open for public inspection,” Bloch-

have included antitrust issues, privacy regula-

use new proactive monitoring technologies

Wehba said. “So we can see a sort of future

tions and now speech regulation.

in addition to human content moderators,

where companies have these technological

“I think there is definitely a political

the cost may well put small companies out of

methods for deleting content that just can’t

dynamic of these big American companies who

business. Automated content moderation also

really be overseen by the users or by govern-

come from a Silicon Valley ethos of moving fast

over-inclusive, Bloch-Wehba said, that photos of jeans or shoes were removed.

ment or by the public.” Governments and platforms both need

and breaking things, entering into European

to be much more transparent about the steps

markets that are not as welcoming,” she said. Public entities of all kinds often try to

they are taking, Bloch-Wehba said. Platforms

strongarm platforms into deleting content

need to be more public about the rules they

they object to. Recently, the New York City

are applying to take down content—given that

Police Department demanded that the traffic app, Waze, stop allowing its users to alert each other to police DWI checkpoints up the road. “There’s only one problem: Publishing the location of a DWI checkpoint is not a crime,” Bloch-Wehba wrote in Slate. “Police searches are matters of public record.” She noted that reporting or publishing information about government conduct is First Amendment–protected activity and that any attempt by the NYPD to stop to that publication would be unconstitutional.

“The government is saying we want you to build the tool to flag content that is illegal. And we want it to be accurate. But we don’t care exactly how you do it.”

these rules are often responses to government demands, she said. As it now stands, private platforms lack the accuracy, the safeguards and the mechanisms for appealing free speech violations that apply to the government. By outsourcing this decision-making to platforms, Bloch-Wehba warns, we are setting ourselves up for a world where nothing meets the standards that we recognize as essential to protect free speech. Caren Chesler is a freelance journalist.

34

PERSPECTIVES

What does the nearly 45-year-old Boston school desegregation case have to do with politics and the courts today? Although that case is now history, analyzing the ways in which political leadership, populist sentiment and the court’s role interacted in it reveals a process that catalyzed changes to social structures and politics that resonate today.

by Terry Jean Seligmann

LEX TEXT & CONTEXT

35

36

Within our constitutional structure, the courts are charged with deter-

PERSPECTIVES

mining when a policy embodied in statute or implemented through executive action violates the constitution and the rights it safeguards. This role of courts as enforcers of minority rights in a political system where the majority may have no interest in safeguarding them has long been recognized as one of the critical functions of the courts in our constitutional democracy. At the same time, scholars have consistently questioned the image, often publicly subscribed to, of the courts as neutral bodies enforcing immutable law, an image partially driven by the importance we place on acceptance of judicial decisions by the citizenry, and the government, in a system based on the rule of law. More recently, voices on both the political left and right have characterized courts as merely acting out the ideology of the judge or of the administration responsible for appointing the judge. Another aspect of the relationship between the federal court and the political structure has received less scholarly attention, though it has often played itself out at the level of lower district courts that are faced both with ruling on issues of law and enforcing the implications of those rulings. This less-examined feature pertains to the court’s role as a “by-default” breaker of political logjams, a role that can propel, or at least permit and contribute to, political changes. Students leave Boston’s Hyde Park

When political leaders perceive that it is unpopular or threatening

High School on Jan. 14, 1975.

to their continued political survival to lead on issues that nonetheless

(AP Photo/Peter Bregg)

implicate fundamental constitutional values, political expediency can push them to leave it to the court to take the heat. Politicians thereby preserve their popularity and power, while the court acts as a stopgap for the consequences of this abdication of governance by the legislative or executive branches. There are significant risks to such an approach— human costs and institutional ones. There are also significant effects on future policy and politics that are perhaps less commonly noted. When Judge W. Arthur Garrity made his 1974 ruling finding that the Boston school committee had intentionally segregated Boston’s public schools, almost no one was surprised. School Committee members, led by Louise Day Hicks, had built political careers by fighting efforts at the local and state levels to redraw district lines to decrease the racial isolation of the city’s schools. Twenty years had passed since the Brown v. Board of Education decision had rejected the legitimacy of “separate but equal” to justify separation by race in public education. Later, the Supreme Court moved from calling in Brown II, for remedial action “with all deliberate speed,” to issuing decisions that burdened school boards to “come forward with a plan that promises realistically to work, and promises realistically to work now,” (in Green, 1968) and later approving judicial power to order remedies that used redistricting and busing to eliminate a dual system, (in Swann, 1971). But when the court ordered that a plan already drawn up under state laws and approved by the state’s high court be implemented in

One can view the court’s involvement in fashioning and implementing remedial orders as provoking changes to the governance and focus of Boston’s school system.

the fall of 1974 as an interim “Phase I” step, the reaction was anything but calm. School committee members continued the tactics of delay and appeal that had fended off change and characterized the judge as a tyrant. Mayor Kevin White, who had been building his political career towards a potential Democratic national candidacy, saw his popularity beginning to erode and called for calm while requesting that the court call in federal troops. President Ford, riding a national trend that framed the issue as one of “forced busing,” announced that he “respectfully disagree[d] with the judge’s order.” A turbulent year followed. That school year is infamous for images of angry crowds of white citizens in South Boston throwing rocks at school buses carrying black students into that neighborhood’s high school, demonstrating that the South had no monopoly on racial

LEX TEXT & CONTEXT

37

Buses arrive at South Boston High School. (AP Photo)

violence. School officials placed themselves in contempt of court by

In other cities, with awareness of the violence that plagued the

refusing to propose any remedial plan for future years. The district

Boston schools during desegregation, leaders faced with desegrega-

court utilized court-appointed experts, masters and extensive hear-

tion challenges called on their communities to avoid “another Boston.”

ings, leading to orders for a wide-ranging Phase II plan for future years.

Simply by making that call, they altered the dynamics between the

Throughout, the court’s legal rulings and orders were consistently

court, the political leadership and the affected citizens. They thereby

upheld, while public opinion viewed the court’s role as anywhere from

reduced the default role of the court, and increased that of the political

misguided to dictatorial.

leadership, in shaping the community’s response.

The Boston case has been extensively written about in human

Looking at a case that unfolded more than 40 years ago is not just an

and social terms. Many have viewed the case as a failure—a decision

exercise in nostalgia. One can describe the current landscape in similar

and ensuing remedial orders that were met with violence rather than

terms—a citizenry that is distrustful of government and feels forgot-

acceptance, and which have not produced an integrated school system,

ten and unprotected by political leaders and systems; populist leaders

but one which, like school systems in many large cities, still has many

who inflame anger and explicitly undermine the legitimacy of the judi-

majority-minority schools.

ciary; politicians who base their pronouncements and behavior solely

However, one can also view the court’s reluctant involvement

on their impact on the prospects of re-election; and a judiciary whose

in the fashioning and implementation of remedial orders, where the

obligations to safeguard rights and uphold law ultimately depend on

school committee’s politically driven position led it to completely

societal acceptance for success.

refuse to fashion or propose its own remedy for segregating its schools,

The judiciary in such times does not have the luxury to defer hard

as provoking changes to the governance and focus of Boston’s school

decisions, to refuse to remedy violations of the law or to let someone

system by eliminating the force of what had become an entrenched,

else do the unpopular thing. It can therefore wind up targeted as the

single-issue political hold on the school system. The court’s resulting orders allowed for the replacement of “no

source of the problem and of the undesired consequences of political dysfunction. But in filling the roles left to it by political default, it can

forced busing” as a single-issue litmus test for political power by other

also change the political future through its effect on the political agenda

education-oriented concerns. They opened the door to participation in

of both citizens and leaders.

school governance and activities by different actors. Within a few years, the first black school committee member was elected. In the wake of

Terry Jean Seligmann, the Arlin M. Adams Professor of Legal Writing

the court’s involvement, the politics of the governance of the schools

Emerita at the Kline School of Law, served as the law clerk to the

and of the city changed in ways which, without the court’s forced role

Hon. W. Arthur Garrity Jr. of the U.S. District Court for the District

in filling the vacuum of defaults in political leadership, might have

of Massachusetts during the 1974-75 school year.

merely continued without change.

38

PERSPECTIVES

BOOK REVIEW

“We the Corporations: How American Businesses Won Their Civil Liberties” by Lauren Katz Smith, ’09

In divided times that threaten to unravel any notion we ever had of a shared legacy, I am fascinated by the notion that there may be certain things baked into our democratic systems that could help explain who we are as a People, for better or for worse. To me, a public interest lawyer, America’s corporate legacy feels unfortunate, if not tragic, in light of the effect that corporations now have on our political processes through unfettered political donations.

LEX TEXT & CONTEXT

39

Ordinance.” Their aim was to protect water for

In “We the Corporations: How American

“citizens” was changed to “persons” in order

Businesses Won Their Civil Liberties,” UCLA

to embrace artificial persons (companies) as

use in local agriculture and other endeavors;

Law Professor Adam Winkler connects the

well as natural persons. Due in large part to

in short, guaranteeing that the rights of nature

dots between the history of corporations and

Conkling’s credibility and experience—he

and people supersede that of corporations.

the court decisions that have defined who is

was a drafter of the 14th Amendment—the

The ordinance was a response to a proposal by Royal Dutch Shell to start hydraulic fracturing,

entitled to the protections guaranteed by the

Supreme Court bought it. And before long,

Constitution. Winkler takes the reader on an

the 14th Amendment was used much more

or fracking. The company’s response was to

eye-opening journey through U.S. history,

to protect the rights of business corporations

take the county to court, claiming the com-

demystifying the Supreme Court’s bewilder-

than the rights of African-Americans, even

missioners were robbing it of its “corporate

ing decisions in Citizens United and Hobby

though African-Americans were the intended

personhood.”

Lobby and offering keen insights into how

beneficiaries. By the way, Conkling lied.

One of the movement’s leaders, John

we’ve reached our current state of affairs.

History shows that not a single framer of the

Olivas, who is described as a man of hardy

14th Amendment other than Roscoe Conkling

stock who hunts 700-pound elk with only a

corporations have had on the birth of democ-

ever said or implied that business corporations

bow and arrow, said, “for well over a century

racy and on the shape of the Constitution itself.

were protected, too.

now, corporations have used th[eir] rights to

Winkler reveals the profound influence

Centuries before Citizens United, the corpora-

Corporations have also been constitu-

stop efforts, like ours, which seek to use local

tion in many ways had been “bred into the very

tional “first movers,” creatively pursuing

lawmaking to protect our communities from harmful corporate activities.” Citing cases

genes of American democracy.” In the begin-

risky and novel claims stirred by the desire to

ning, America was a corporation (the Virginia

increase profits and evade regulation. Since

brought by business to challenge local regu-

Company of London founded England’s first

the early days of the Republic, corporations

lations he said, “our lawmaking authority as

New World Colony in Jamestown)—and the

have invested substantial capital in some of

‘we the people’ has been largely eliminated.”

demands of business have shaped the nation

the country’s most talented and charismatic

Although unsuccessful due to the weight

and its government from the start. Since the

lawyers, pushed risky lawsuits and been on

of resources and precedent that they were up against, the Mora County Commission was

earliest days of the Republic, corporations

the cutting edge in the development of rights.

“have pursued a longstanding, strategic effort

The earliest Supreme Court cases to strike

carrying on a tradition that traces back to the

to establish and expand” their rights under

down laws for violating the First Amendment

very first legislative assembly in Jamestown.

American constitutional law. Winkler proves

as well as the earliest search and seizure cases

The effort reflects the often mythologized,

his thesis by recounting critical moments

under the Fourth Amendment were won by

yet true, legacy of the American battle for

when corporations pushed the limits of exist-

corporations.

ing law and (usually) won new rights.

Fueling this history with anecdote and

self-governance. Both the colonists and the Mora County commissioners were small, des-

Winkler illustrates how corporations have

memoir, positioning all the giants of American

perate communities seeking to assert control

been “constitutional leveragers,” creatively

history in their respective places, Winkler

over their environment and claim what they

exploiting constitutional reforms originally

serves as an engaging narrator. He portrays

saw as their last vestiges of self-determination.

designed for progressive causes. One of the

the characters of this 400-year HIStory and

Winkler’s book certainly reveals all of

most outrageous examples of the efforts to

illustrates how egos and personalities had as

the obstacles and barriers before those who

do this comes in a series of cases brought by

much an effect on outcomes as the risky legal

attempt to challenge a corporation; however,

the Southern Pacific Railroad in the 1880s. An

claims pursued. He showcases the strategies

the story of Mora County feels like a small

extraordinarily powerful corporation at the

and the absurdities of the past, leaving readers

light at the end of the tunnel. Mora County

time, Southern Pacific hired an all-star team

to imagine the ways in which the future might

is a reminder that there is always going to

of lawyers to file a series of what the company

open.

be American appetite to defend popular sov-

called “test cases” seeking new rights for corporations under the 14th Amendment, which

The book ends with the story of Mora County, New Mexico.

was adopted after the Civil War to protect

In May 2013, Mora County, population

the rights of the newly freed slaves. Roscoe

4,881, was the first to enact a countywide ban

Conkling, one of the lawyers for Southern

on oil explorations and extraction, naming

ereignty and the (actual) People’s right to self-determination. Perhaps that instinct is just as strong as our corporate legacy. We hold both truths.

Pacific, claimed it was also written to pro-

the restriction the “Mora County Community

Lauren Katz Smith is an assistant teaching

tect business corporations. He argued that

Water Rights and Local Self-Government

professor at the Kline School of Law.

Like the rest of Drexel University, the Kline School of Law engages deeply with the community, from its main campus in University City to adjoining neighborhoods and into the bustling heart of Center City Philadelphia. Through its clinics, pro bono program and co-op placements, the law school serves the needs of growing numbers of Philadelphians, contributing mightily to University President John Fry’s mission to make Drexel “the most civically engaged university in the U.S.” Law school faculty, students and alumni continue to engage the community and promote the public interest in new and innovative ways. 42

Symposium Explores Contexts and Methods in Transitional Justice

Richard Goldstone, Justice

Thelma Aldana , Former Guatemalan Supreme Court Justice Attorney General

Global leaders and academics in transitional justice gathered for “Times of Reckoning: Confronting the Legacies of Mass Abuse,” the 2018-19 symposium sponsored by the Drexel Law

Review. Justice Richard Goldstone, who played a key role in transitioning South Africa from apartheid to democracy, noted the need for compromise on the part of victims, who may have to settle for simple acknowledgement, and the political will on the part of successor regimes. Former Guatemalan Supreme Court Justice and Attorney General Thelma Aldana described the transitional justice process that unfolded after the nation’s civil war and the creation of a Court of Conscience that handled the cases of thousands of disappeared and murdered activists, journalists and civilians. A panel exploring the contexts in which transitional justice occurs, moderated by Roger Duthie, senior research expert at the International Center for Transitional Justice, featured commentary by Professor Roland Adjovi, a member of the UN Working Group on Arbitrary Detention and faculty member at Arcadia University, Noha Aboueldahab, a visiting fellow at Brookings Doha Center, UVA School of Law Professor Nelson Camilo Sánchez León and former UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment Juan Méndez, now faculty director of the Anti-Torture Initiative at American University Washington College of Law. A panel focusing on past injustices moderated by New York Law School Professor Ruti Teitel provided perspectives by University of Oxford lecturer Julia Viebach, Northern Kentucky University Law Professor Ursula Doyle, International Coalition of Sites of Conscience senior program director Ereshnee Naidu-Silverman and Sri Lanka’s Community Memorialization Project team leader Rakhika Hettiararchchi. Finally, UC Hastings Law Professor Naomi Roht-Arriza, University of Massachusetts-Amherst Professor Jamie Rowen, UCLA Professor Maximo Langer and U.S. State Department senior policy adviser David Mandel-Anthony offered insights on the role of foreign courts in a panel moderated by Federica Tronchin, the head of the Justice Rapid Response USA Office. The symposium was organized by Professor Rachel López, who studied transitional justice mechanisms in Guatemala and Spain, focusing on the genocide of indigenous Mayans, as a Fulbright Scholar and a Schell Fellow at Yale Law School. 43

School Launches Center for Law, Policy, and Social Action

The school’s new Center for Law, Policy, and

described her insurgent 2018 campaign for

Social Action gathers scholars, practitioners

lieutenant governor.

and activists from diverse disciplines to pro-

In September, the center will partner

mote engagement that advances justice and

with Professor Hannah Bloch-Wehba to host

policy innovation.

a conference on the use of algorithms, big

Under the direction of Professor Rose Corrigan, the center hosts academic activities

data and risk assessment in criminal justice policy-making.

including talks, interdisciplinary working

Alumni are invited to informal gath-

groups and academic conferences. The first

erings with faculty to engage in collegial

public event was held in March, when attor-

discussions of ethical issues related to legal

ney Nicole Ramos, the director of the Border

practice and the impact of changing policies

Rights Project of Al Otro Lado, discussed her

on public interest law.

work with asylum seekers in Tijuana, Mexico.

The center is also engaging with commu-

In April, political scientist Sayu Bhojwani dis-

nity organizations, including a partnership

cussed her book, “People Like Us: The New

with the Philadelphia Education Fund that

Wave of Candidates Knocking at Democracy’s

will

Door,” during a panel in which former

low-income, first-generation college-bound

Philadelphia Deputy Mayor Nina Ahmad

students in the city’s public high schools.

44

provide

pre-law

programming

to

Growing Clinical Program Notches Victories for Clients

The newly renamed Andy and Gwen Stern Community Lawyering Clinic and the Federal

and renovated over a period of 25 years. Students with the Federal Litigation and

Litigation and Appeals Clinic won life-chang- Appeals Clinic succeed in gaining asylum for ing victories on behalf of clients in the past year. clients who faced harrowing prospects in their The Community Lawyering Clinic—fueled

homelands. In February, students won asylum

by a $1.65 million gift and pro bono advocacy

for a Guinean woman who had been subjected

from Philadelphia trial lawyer Andy Stern and

to female genital mutilation and faced the

Professor Gwen Stern—won a generous set- prospect of further injury, as did her young tlement for a woman whose home had been

daughter, had they been deported. In April, a

stolen out from under her through deed forg- different set of students gained asylum for a ery. The gift is also enabling Professor Rachel

gay Muslim man for whom death threats had

López, the clinic director, to hire a staff attor- been issued in Ghana. ney, creating capacity to serve even more residents of low-income neighborhoods that adjoin the Drexel campus. In the meantime, a student in the clinic fulfilled the dreams of a once-homeless man when a judge granted his motion, allowing his client to acquire the deed to an abandoned property he had occupied

Dean Dan Filler, Professor Rachel López, Professor Gwen Stern, attorney Andy Stern and Drexel President John Fry celebrate gift to clinic.

45

School Joins Penn and Temple to Offer Pathbreaking Course

Philadelphia’s district attorney and chief

participatory defense models and sentencing

public defender teamed up to teach a course

philosophies.

through an innovative partnership between

Eight class sessions were held at the Kline

the Kline School of Law, the University

Institute of Trial Advocacy, two were held at

of Pennsylvania Law School and Temple

Penn and one was held at Temple.

University’s Beasley School of Law.

Krasner, a longtime criminal defense attor-

Philadelphia

District

Attorney

Larry

ney who specialized in civil rights, was

Krasner and Chief Public Defender Keir

elected district attorney of Philadelphia in

Bradford-Grey taught 21st Century Prose-

2017. He received his JD from Stanford Law

cution & Defense to students from all three

School.

law schools during the spring 2019 term.

Bradford-Grey, who was named chief

The two-credit course explored efforts to

defender in 2015, previously served as

reverse adverse impacts of criminal justice as

chief defender for the Montgomery County

it has been practiced in the past and to envi-

Public Defender’s Office and as a trial law-

sion components of the system of the future.

yer with the Defender Association and

Classes covered a range of topics, including

Delaware Federal Public Defender’s Office.

mass incarceration, charging decisions and

She received her JD from the Ohio Northern

bail, interviewing victims and defendants,

University Claude W. Pettit College of Law.

Larry Krasner, Philadelphia District Attorney

46

Keir Bradford-Grey, Chief Public Defender