American society has come to presuppose the efficacy of the collateral legal consequences of criminal conviction. But little attention has been paid to their effects on the reintegration efforts of the formerly incarcerated and, in particular, formerly incarcerated women. An 1848 case, Sutton v. McIlhany, affirmed collateral legal consequences as constituting an important part of criminal punishment. More recent cases, such as Turner v. Glickman, in which a class of people convicted of drug crimes were subsequently denied food stamps and other government benefits, have upheld the constitutionality of imposing these legal penalties on an individual even after she has served her prison sentence.
This Article argues that the collateral legal consequences of criminal conviction represent a “modern day scarlet letter” that lingers with the formerly incarcerated woman for life and that serves to circumscribe those individuals’ economic and social opportunities. Calling upon critical legal theory and empirical social science research, this Article argues that the collateral legal consequences of conviction exact a disproportionate cost on formerly incarcerated women. Expanding upon the understanding of Professor Kimberlé Crenshaw’s critical legal theory of “intersectionality,” this Article discusses the predominant intersectional identities that formerly incarcerated women embody and examines how these identities compound the impact of collateral legal consequences. This Article finds that Black women are most negatively impacted by the collateral legal consequences of incarceration. Relying on Professor Martha Fineman’s concepts, this Article argues that the state has a “positive obligation” to abrogate collateral legal consequences that disproportionately negatively impact women and to mandate gender-sensitive policies for federally subsidized reentry organizations. This Article proposes a model of reentry that is cognizant of the increased vulnerability of formerly incarcerated women and that is better designed to accommodate the exigencies that are intrinsic to their intersectional identities.
The mainstream narrative regarding the evolution of race as an idea in the scientific community is that biological understandings of race dominated throughout the nineteenth and twentieth centuries up until World War II, after which a social constructionist approach is thought to have taken hold. Many believe that the horrific outcomes of the most notorious applications of biological race—eugenics and the Holocaust—moved scientists away from thinking that race reflects inherent differences and toward an understanding that race is a largely social, cultural, and political phenomenon. This understanding of the evolution of race as a scientific idea informed the way that many areas of law conceptualize human equality, including civil rights, human rights, and constitutional law.
This Article provides one of the first large-scale empirical assessments of publications in peer-reviewed biomedical and life science journals to examine whether biological theories of race actually lost credibility in the life sciences after World War II. We find that biological theories of race transformed yet persisted in the dominant academic discourse up through modern times—a finding that contradicts the central narrative that the life sciences became “color-blind” or “post-racial” several decades ago. The continued salience of biological race in the life sciences suggests that more attention needs to be paid to the questionable assumptions driving this research on biological race and its potential spillover effects, i.e., how persisting claims of biological race in the scientific literature might reconstitute its significance in law and society in a manner that may be harmful to racial minorities.
Twice in the past two years, the U.S. Supreme Court has approved educational diversity as a compelling state interest that justifies the use of race in higher education admissions decisions. Nevertheless, it remains on somewhat shaky ground. Over the past decade, the Court has emphasized that its acceptance of diversity stems from the expectation that a diverse student body will enhance the classroom environment, with students drawing on their diverse backgrounds during classroom conversations that ultimately bring the law to life. Yet, the Court provides no support for its assumption that admitting and enrolling diverse students actually result in these educational benefits. In fact, empirical research on law students indicates that structural diversity (i.e., diversity in numbers) does not lead automatically to interactional diversity (i.e., meaningful interaction among diverse students) or classroom diversity (i.e., meaningful diverse interaction in the classroom specifically); instead, these enhanced classroom experiences depend on adept facilitation by faculty and mutual respect among diverse students.
The Court could draw from a wide body of empirical scholarship with students to better understand the ways in which educational diversity could provide true scholastic and professional benefits. Yet, another group of classroom participants and observers offers even more astute perspectives. Law faculty members have never been asked about their perspectives on
educational diversity as part of a formal empirical study, though as the ones facilitating discussion, leading classroom conversations, and instilling a model of respect, they have unique experiences and insights into the possible benefits of educational diversity.
This Article presents findings from the Diversity in Legal Academia (DLA) project, a landmark empirical study of the law faculty experience. DLA findings suggest that law faculty members from all racial/ethnic backgrounds not only appreciate the many benefits of diversity, but they also recognize the educational and professional challenges associated with the lack of diversity currently plaguing many law schools. Courts, administrators, and others should rely on these findings to provide additional support for affirmative action through educational diversity, especially to bolster it while it is under attack.
This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as charitable settlements face growing attacks spurred by Chief Justice Roberts's comments in the 2014 Marek v. Lane appeal. Once unchained from the strictures of the cy pres doctrine, charitable settlements become a tool to promote the larger regulatory objectives underlying class action procedures, including access to justice and deterrence.
Joseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery.
But the majority did not grapple with the worldwide nature of the discovery granted. It assumed, without deciding, that worldwide discovery in aid of enforcement of a judgment is usually appropriate. This prompted Justice Ginsburg to dissent. Justice Ginsburg wrote that U.S. courts should not assume that the “sky may be the limit” for post-judgment discovery, especially given that other countries typically have far more limited document production. For Justice Ginsburg, discovery in aid of enforcement of a judgment is presumptively about U.S. courts looking to U.S. law about assets in the United States.
The split in the Court reflects deep confusion and disagreement among U.S. courts on the role of discovery in an era of worldwide hunts for assets to satisfy unpaid judgments and arbitral awards. Courts have struggled to define the limits of worldwide enforcement discovery for one overriding reason: U.S. courts—following the Supreme Court’s lead—have applied tests and concepts developed for pretrial discovery to the very different world of post-judgment enforcement discovery. Post-judgment enforcement discovery differs in its purposes, its presumptions, and its problems. This Article grapples with each and proposes new approaches to tackling two obstacles to enforcement discovery—restrictions on discovery and on execution.
Conflicting results in two recent police excessive force decisions by the U.S. Supreme Court—Tolan v. Cotton and Plumhoff v. Rickard—have sown confusion about the standards for summary judgment. This Note shows how the two decisions are consistent with each other and with longstanding summary judgment precedents. The key insight is that since the Second Circuit’s iconic 1946 decision in Arnstein v. Porter, appellate judges, including Supreme Court Justices, have listened to audio recordings, scrutinized artwork, and—as in the case of Plumhoff—watched video footage in order to decide for themselves whether there is a genuine issue of material fact for trial. These “objective” components of the record are considered vitally important to the decisions. When no objective evidence is available, appellate judges are left with “he said, she said” testimonial evidence in which demeanor evidence looms larger and are therefore more likely to allow the cases to proceed to trial. The presumed propriety of appellate judicial review of audiovisual evidence not only explains the different results in Tolan (no audiovisual evidence of police shooting and vacating the lower court’s finding for the defendant officer) and Plumhoff (video evidence of a police car chase resulting in the Court finding for the officer), but it also will have greater significance in current police excessive force cases given the omnipresence of smartphones and police recordings. At the same time, it is worth questioning whether appellate judges should continue to exercise limitless, de novo review of present-day audiovisual evidence, which may require as much understanding of context as traditional demeanor evidence.
The Antiterrorism Act of 1990 (ATA) explicitly authorizes a private cause of action for U.S. nationals who suffer an injury “by reason of an act of international terrorism.” ATA civil litigation has increased dramatically following September 11, 2001—and banks, because of their deep pockets, have emerged as an increasingly popular target. Courts are divided concerning the scope of liability under the statute, specifically over whether the ATA authorizes a cause of action premised on secondary liability. Under a secondary liability theory, a plaintiff could argue that a bank, through providing financial services to a terrorist client, aided and abetted an act of international terrorism.
This Note examines the conflict over secondary liability under the ATA, applies this conflict to banks specifically, and concludes that the legislative history of the ATA civil provision is not enough to support such a cause of action. This Note ultimately finds, however, that the absence of any kind of secondary liability route for plaintiffs diminishes the ATA's power as a deterrent against terrorism financing and also has interesting repercussions for primary liability cases. As a result, this Note argues that Congress should amend the ATA to explicitly permit secondary liability. However, in order to guard against excessive suits against innocent banks, courts should only permit claims premised upon secondary liability in extreme cases where the bank manifested intent or extreme recklessness in their dealings with terrorist clients.
The tort of intrusion upon seclusion protects individuals from unwanted invasions into their personal space and personal affairs. While courts differ as to the precise definition and scope of this tort, at the most basic level, a claim for intrusion upon seclusion alleges that the defendant has unreasonably interfered with the plaintiff’s legitimate interest in maintaining some degree of privacy in his or her personal affairs. This Note analyzes an interesting issue that has emerged concerning the application of this tort: Should a defendant be held liable when he or she has attempted to observe the plaintiff in a private setting but is ultimately unsuccessful?
Some courts have held that the mere placement of surveillance equipment that is capable of transforming a private space into a public one constitutes an intrusion, even if the defendant never uses the device to view or hear the plaintiff. Other courts, however, have held that the plaintiff must prove that the defendant overheard, viewed, or otherwise observed the plaintiff using the device. This Note analyzes the underlying basis and purpose of the intrusion tort and argues that a plaintiff should not need to prove that the defendant actually used the device to see or hear the plaintiff—in other words, the placement alone of surveillance equipment is an invasion of the plaintiff’s privacy and should be sufficient to state a claim for intrusion upon seclusion.