When foreign labor recruiters, acting on foreign soil as agents of domestic growers, intentionally prefer young, non-disabled men as temporary agricultural workers in the United States, federal antidiscrimination law traditionally has offered no recourse because of the presumption against extraterritorial application of domestic statutes. Accordingly, prospective migrant workers face discrimination abroad by American employers’ agents […]
The Original Meaning of “Full and Equal Enjoyment” of Public Accommodations
This article is a reply to Professor Suja Thomas’s article The Customer Caste: Legal Discrimination by Public Businesses. This reply adds another compelling piece of evidence to Professor Thomas’s thesis by arguing that the federal courts have defied the original meaning of Title II’s central guarantee of “full and equal enjoyment” of public accommodations. That […]
Brown’s Lost Promise: New York City Specialized High Schools as a Case Study in the Illusory Support for Class-Based Affirmative Action
Using the case study of Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, a lawsuit challenging New York City’s class-based policies to diversify its elite Specialized High Schools, this Essay explains that purported support for class-based affirmative action serves as a rhetorical smokescreen for eliminating Brown v. Board of Education’s promise of a racially […]
Sex Discrimination in Healthcare: Section 1557 and LGBTQ Rights After Bostock
HHS under the Trump administration finalized a new rule in June 2020 that officially stripped sexual orientation and gender identity from Section 1557’s safeguards. Whether the position taken by the Trump administration can stand is now the subject of several legal challenges, particularly in light of the recent Supreme Court decision Bostock v. Clayton Co., which held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination. The Biden administration is likely to propose its own Section 1557 rule that again protects LGBTQ people, prompting further legal challenges. The stage is set for an eventual Supreme Court review of the question of whether Section 1557, and Title IX, necessarily ban LGBTQ discrimination after Bostock. The stakes could not be higher for LGBTQ people. […]
Unjustified Punishment: The Eighth Amendment and Death Sentences in States that Fail to Execute
Individuals incarcerated in states that have enacted death penalty moratoria do not have their death sentences carried out in a timely and expeditious manner; instead, these incarcerated individuals sit on death row until they are either exonerated or die of natural causes. Individuals on death row in these states sit on death row for over two decades on average. This Article argues that capital sentencing in states that fail to execute individuals on death row, particularly in states with moratoria on the death penalty, violates the Eighth Amendment to the U.S. Constitution.
Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans
Anti-mask laws ban the wearing of masks in public. Popularly understood to prevent Klan activity, these laws are often vague, with a history of selective enforcement. They also clash with the exhortations to wear personal protective equipment to prevent the spread of COVID-19, which by summer of 2020 was encouraged by all states and required by many. […]
Textualism and the Duck-Rabbit Illusion
But in other cases, textualists proceed as if legal texts have an ordinary meaning even when they do not. Judges see a rabbit, or a duck, when other reasonable readers see a duck, or a rabbit. Such judges are “seeing as.” Nonetheless, they insist that they are “seeing that.” They do not think, do not know, and might not even believe, that “someone else could have said of [them]: ‘He is seeing the figure as a picture-rabbit.’” […]
Heroizing Restorative Justice: Steven Universe and Rewriting Justice Narratives through Superhero Cartoons
Steven Universe, a children’s cartoon that follows the lives and adventures of the half-human, half-alien boy Steven Universe and his family of intergalactic space aliens, “the Crystal Gems,” upends these narratives, instead modeling restorative justice principles—empathetic, dialogue-based communication, non-punitive conflict resolution, and communal healing—for children. […]
Sitting One Out: Strategic Recusal on the Supreme Court
In a time of constitutional hardball, the Supreme Court’s quorum requirement raises the questions of how and whether a tactic of strategic recusal—or “sitting out”—can be effectively employed by a four-Justice minority and whether utilizing such a tactic would be appropriate. […]
The Quasi-Army: Law Enforcement, Value Judgments, & the Posse Comitatus Act
By unleashing military tactics and weapons onto American streets, police departments around the country are violating a value that traces its intellectual roots to the very founding of our country and which has been crystallized in statute for well over a century. […]