AuthorTitleCitationSummaryYear
Christian Powell Sundquist PANDEMIC SURVEILLANCE DISCRIMINATION 51 Seton Hall Law Review 1535 (2021) I. Introduction. 1535 II. The Racialization of Public Health Crises. 1536 III. Surveillance Discrimination. 1537 IV. Conclusion. 1545 2021
D. Anthony PERILS OF THE REVERSE SILVER PLATTER UNDER U.S. BORDER PATROL OPERATIONS 16 University of Massachusetts Law Review 232 (Spring, 2021) In the face of expanding U.S. Border Patrol operations across the country, that agency often acquires evidence during its searches that is unrelated to immigration or other federal crimes but may involve state crimes. States are then faced with the question of whether to accept such evidence for state prosecutions when it was lawfully obtained by... 2021
Rachel F. Moran PERSISTENT INEQUALITIES, THE PANDEMIC, AND THE OPPORTUNITY TO COMPETE 27 Washington and Lee Journal of Civil Rights and Social Justice 589 (Spring, 2021) C1-2Table of Contents I. Introduction. 590 II. Persistent Inequalities: Race, Ethnicity, Class, Language, and Immigration. 592 A. Race, Ethnicity, and the Intransigence of Segregation in the Schools. 593 B. The Intersection of Race, Ethnicity, and Poverty. 596 C. Additional Dimensions of Difference: Language and Immigration Status. 599 D. Greater... 2021
Tania N. Valdez PLEADING THE FIFTH IN IMMIGRATION COURT: A REGULATORY PROPOSAL 98 Washington University Law Review 1343 (2021) Protections of noncitizens' rights in immigration removal proceedings have remained minimal even as immigration enforcement has exponentially increased. An overlooked, but commonplace, problem in immigration court is the treatment of the constitutional right against self-incrimination. Two routine scenarios occur where noncitizens are asked to... 2021
Aya Gruber POLICING AND "BLUELINING" 58 Houston Law Review 867 (Symposium, 2021) In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, Don't get it twisted--the criminal justice system ain't broke. It's working just the way it's supposed... 2021
  PROSECUTORIAL DISCRETION 50 Georgetown Law Journal Annual Review of Criminal Procedure 269 (2021) The government has broad discretion to initiate and conduct criminal prosecutions because of the separation of powers doctrine and because prosecutorial decisions are particularly ill-suited to judicial review. As long as there is probable cause to believe that the accused has committed an offense, the decision to prosecute is within the... 2021
Jennifer Bennett Shinall PROTECTING PREGNANCY 106 Cornell Law Review 987 (May, 2021) Laws to assist pregnant women in the workplace are gaining legislative momentum, both at the state and federal levels. Last year alone, four such laws went into effect at the state level, and federal legislation advanced farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently... 2021
Andrew T. Hayashi , Richard M. Hynes PROTECTIONIST PROPERTY TAXES 106 Iowa Law Review 1091 (March, 2021) National restrictions on trade and immigration are the most salient illustrations of the current protectionist moment, but cities have played their part too, taxing foreign investors in local real estate and imposing second or vacant home taxes that indirectly burden foreign investment. We call these taxes protectionist property taxes.... 2021
Jeremiah A. Ho QUEERING BOSTOCK 29 American University Journal of Gender, Social Policy and the Law 283 (2021) I. Introduction. 284 II. Conceptualizations of Anti-Queer Stereotypes. 289 A. Modern Historical Origins. 289 B. Anti-Queer Stereotyping Effects in Law. 295 III. Anti-Stereotyping Strategies. 301 A. Gender Discrimination. 303 B. LGBTQ Discrimination. 315 1. Animus in Romer. 316 2. Dignity in Lawrence. 321 3. Anti-Stereotyping in Windsor &... 2021
Ric Simmons RACE AND REASONABLE SUSPICION 73 Florida Law Review 413 (March, 2021) The current political moment requires society to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect's race when conducting criminal investigations. The civil rights movement and the progressive... 2021
Jack M. Balkin RACE AND THE CYCLES OF CONSTITUTIONAL TIME 86 Missouri Law Review 443 (Spring, 2021) C1-2Table of Contents Table of Contents. 443 I. Introduction. 444 II. The Cycle of Regimes. 445 A. Political Regimes in the Antebellum Era. 446 B. The Republican Regime. 449 D. The New Deal/Civil Rights Regime. 454 E. The Reagan Regime and the Culture Wars. 456 III. The Cycle of Polarization and Depolarization. 463 A. Racial Polarization in... 2021
Michelle Foster , Timnah Rachel Baker RACIAL DISCRIMINATION IN NATIONALITY LAWS: A DOCTRINAL BLIND SPOT OF INTERNATIONAL LAW? 11 Columbia Journal of Race and Law 83 (January, 2021) Statelessness has historically been overlooked by the international community, but it is now a significant focus of the work of academics, advocates, and international institutions. The United Nations High Commissioner for Refugees' campaign to end statelessness by 2024 is now past its half-way point. Yet, while it is understood that statelessness... 2021
Vinay Harpalani RACIAL TRIANGULATION, INTEREST-CONVERGENCE, AND THE DOUBLE-CONSCIOUSNESS OF ASIAN AMERICANS 37 Georgia State University Law Review 1361 (Summer, 2021) This Essay integrates Professor Claire Jean Kim's racial triangulation framework, Professor Derrick Bell's interest-convergence theory, and W.E.B. Du Bois's notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, this Essay considers the history of Asian immigration to... 2021
Charlie Martel RACISM AND BIGOTRY AS GROUNDS FOR IMPEACHMENT 45 New York University Review of Law and Social Change 197 (2021) Building on years of anti-racist organizing and advocacy, millions of Americans took to the streets to protest racism and demand racial justice in mid-2020. Much of the protest was directed at President Donald Trump--a president whose words and actions were racially polarizing and who deliberately incited racist hostility. This president was also... 2021
Charlene Galarneau , Ruqaiijah Yearby RACISM, HEALTH EQUITY, AND CRISIS STANDARDS OF CARE IN THE COVID-19 PANDEMIC 14 Saint Louis University Journal of Health Law & Policy 211 (2021) Long-standing and deeply embedded institutional racism, notably anti-Black racism in U.S. health care, has provided a solid footing for the health inequities by race evident in the COVID-19 pandemic. Inequities in susceptibility, exposure, infection, hospitalization, and treatment reflect and reinforce this racism and cause incalculable and... 2021
Jelani Jefferson Exum RECONSTRUCTION SENTENCING: REIMAGINING DRUG SENTENCING IN THE AFTERMATH OF THE WAR ON DRUGS 58 American Criminal Law Review 1685 (Fall, 2021) L1-2Introduction . L31685 I. The Need for Reconstruction: Then and Now. 1687 II. Understanding the War on Drugs: The Weapons, The Tactics, and the Casualties. 1691 III. Why Interpretation Matters: A Lesson from the Thirteenth Amendment. 1698 A. The Thirteenth Amendment: Original Interpretation. 1698 B. Reinterpreting the Thirteenth Amendment: An... 2021
Sahar F. Aziz REFLECTIONS ON SECURITY, RACE, AND RIGHTS TWENTY-YEARS AFTER 9/11 12 Journal of National Security Law & Policy 135 (2021) L1-2Introduction . L3135 I. Race and Counterterrorism. 137 A. FBI Voluntary Interviews. 139 B. Terrorist Watch Lists. 140 C. Public Scrutiny and Government Surveillance. 141 II. Manufacturing Muslim Terrorism Through Predatory Sting Operations. 144 III. Insights for Future Policy Makers. 146 A. Be a Professional, Not a Politician. 147 B. Improve... 2021
Beth Caldwell REFLECTIONS ON THE RIGHT TO MOVE FREELY ACROSS BORDERS 50 Southwestern Law Review 359 (2021) The essays in this symposium highlight the depth and breadth of the injustice and inhumanity of U.S. immigration law. While injustice in immigration law is nothing new, the hateful rhetoric that has been routinely directed toward immigrants from the highest levels of government, and the extreme policies that accompany this rhetoric, have elevated... 2021
Gabriel J. Chin RELIEF AND STATUTES OF LIMITATION FOR DEPORTABLE NONCITIZENS UNDER ASIAN EXCLUSION, 1882-1948 50 Southwestern Law Review 218 (2021) Reading Deported Americans is like watching a horror movie; it is all too easy to anticipate the terror coming. But it is no fantasy; this nightmare is real life. The book is the story of good people, many with close connections to the United States, deported without mercy or individual consideration. Sometimes, although not always, they are... 2021
Stéphanie Hennette-Vauchez RELIGIOUS NEUTRALITY, LAÏCITÉ AND COLORBLINDNESS: A COMPARATIVE ANALYSIS 42 Cardozo Law Review 539 (May, 2021) C1-3Table of Contents L1-2Introduction . L3540 I. A Caveat to Comparability. 549 II. Modes of Reasoning. 552 A. Formalistic Legal Reasoning, Anti-Classification as Symmetry, and the Limited Reach of Anti-Discrimination Law. 552 B. Shielding Discrimination from Equality and Anti-Discrimination Law. 568 1. The Public/Private Divide as a Limit on... 2021
Erica D. Rosenbaum RELYING ON THE UNRELIABLE: CHALLENGING USCIS'S USE OF POLICE REPORTS AND ARREST RECORDS IN AFFIRMATIVE IMMIGRATION PROCEEDINGS 96 New York University Law Review 256 (April, 2021) Although many scholars have recognized the need for increased procedural protections for immigrants in removal proceedings, very little attention has been paid to the process afforded to immigrants applying affirmatively to acquire lawful status. However, due to the collection of important interests implicated by affirmative immigration... 2021
Miranda Sasinovic REMOVING ROADBLOCKS: ALTERNATIVES TO LAWFUL STATUS AND SOCIAL SECURITY NUMBER REQUIREMENTS FOR PENNSYLVANIA DRIVER'S LICENSES 126 Dickinson Law Review 305 (Fall, 2021) As part of their traditional state police powers, states determine the eligibility requirements for their driver's licenses. Standard eligibility requirements include proof of age, residency, identity, and knowledge. In the 1990s, some states amended their vehicle codes to require proof of lawful status, effectively barring undocumented immigrants... 2021
Cynthia Soohoo REPRODUCTIVE JUSTICE AND TRANSFORMATIVE CONSTITUTIONALISM 42 Cardozo Law Review 819 (June, 2021) C1-2Table of Contents Introduction. 820 I. Reproductive Justice. 823 A. Universal Demands, Different Forms of Oppression. 823 B. Tensions between Reproductive Rights and Reproductive Justice. 825 II. History of Reproductive Oppression in the United States. 826 A. Setting the Stage: The Founding. 826 B. Founding to the Civil War: Private... 2021
Peter L. Markowitz RETHINKING IMMIGRATION ENFORCEMENT 73 Florida Law Review 1033 (September, 2021) As the nation turns the page away from the dark chapter of President Trump's relentless assault on immigrants, it is time to take stock of the nation's unprecedented immigration enforcement regime. During its relatively short existence, the Immigration and Customs Enforcement agency (ICE) has deported more than twice as many people as were deported... 2021
Nicole Hallett RETHINKING PROSECUTORIAL DISCRETION IN IMMIGRATION ENFORCEMENT 42 Cardozo Law Review 1765 (September, 2021) Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama's immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante,... 2021
  RIGHT TO A JURY TRIAL 50 Georgetown Law Journal Annual Review of Criminal Procedure 651 (2021) Under the Sixth Amendment, criminal defendants have a right to trial by an impartial jury drawn from the state and district where the crime allegedly occurred. The right to a jury trial exists only in prosecutions for serious crimes, as distinguished from petty offenses. In determining whether a crime is serious under the Sixth Amendment, courts... 2021
Yara M. Wahba RISK ASSESSMENTS ARE THE DIAGNOSIS NOT THE CURE: HOW USING ALGORITHMS AS DIAGNOSTIC TOOLS CAN PREVENT THE BAIT-AND-SWITCH OF UNCONSTITUTIONAL PRETRIAL PRACTICES 24 Chapman Law Review 575 (Winter, 2021) In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception. While the Supreme Court has emphasized the exceptional nature of infringements on any individual's liberty, the reality of our criminal justice system contradicts this sentiment. Marginalized people, whether because of race or... 2021
Emily Prifogle RURAL SOCIAL SAFETY NETS FOR MIGRANT FARMWORKERS IN MICHIGAN, 1942-1971 46 Law and Social Inquiry 1022 (November, 2021) In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers' private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid... 2021
Mark R. Killenbeck SOBER SECOND THOUGHT? KOREMATSU RECONSIDERED 74 Arkansas Law Review 151 (2021) How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer's caution about decisions that have harm[ed] not just the Court, but the Nation. Part of an Anticanon, resting on little more than naked racism and associated hokum and... 2021
Tally Kritzman-Amir SWAB BEFORE YOU ENTER: DNA COLLECTION AND IMMIGRATION CONTROL 56 Harvard Civil Rights-Civil Liberties Law Review 77 (Winter, 2021) In the spring of 2019, the United States Department of Homeland Security (DHS) announced that it would start conducting DNA tests at the border to identify fraudulent claims regarding family ties. Later, in January 2020, DHS started to collect DNA samples from persons in immigration detention. This article examines these measures in their... 2021
Ruqaiijah Yearby , Seema Mohapatra SYSTEMIC RACISM, THE GOVERNMENT'S PANDEMIC RESPONSE, AND RACIAL INEQUITIES IN COVID-19 70 Emory Law Journal 1419 (2021) During the COVID-19 pandemic, federal and state governments have disregarded racial and ethnic minorities' unequal access to employment and health care, which has resulted in racial inequities in infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are... 2021
Mary Holper TAKING LIBERTY DECISIONS AWAY FROM "IMITATION" JUDGES 80 Maryland Law Review 1076 (2021) I think that condemning people to jail is a job for the judiciary in accordance with procedural due process of law. To farm out this responsibility to the police and prosecuting attorneys is a judicial abdication in which I will have no part. I. The Lack of an Independent Immigration Judge. 1081 A. The Historically Commingled Functions and War... 2021
Shayak Sarkar TAX LAW'S MIGRATION 62 Boston College Law Review 2209 (October, 2021) Introduction. 2210 I. Historic Taxation to Shape Migration and Migrants. 2216 A. Colonies of Migrant Taxation. 2217 B. Taxation and Migration Beyond the Colonies. 2219 C. Modern Migration and the Public Fisc. 2223 II. Contemporary Instances of Tax Law's Migration. 2227 A. Pandemic Relief. 2227 1. Round One of Pandemic Relief and Constitutional... 2021
Mekonnen Firew Ayano TENANTS WITHOUT RIGHTS: SITUATING THE EXPERIENCES OF NEW IMMIGRANTS IN THE U.S. LOW-INCOME HOUSING MARKET 28 Georgetown Journal on Poverty Law and Policy 159 (Winter, 2021) Immigrants who recently arrived in the United States generally are not able to exclusively possess rental properties in the formal market because they lack a steady source of income and credit history. Instead, they rent shared bedrooms, basements, attics, garages, and illegally converted units that violate housing codes and regulations. Their... 2021
Faiza W. Sayed TERRORISM AND THE INHERENT RIGHT TO SELF-DEFENSE IN IMMIGRATION LAW 109 California Law Review 615 (April, 2021) The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both engaged in terrorist activity and terrorist activity are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of... 2021
J. Shoshanna Ehrlich THE BODY AS BORDERLAND: THE ABORTION (NON)RIGHTS OF UNACCOMPANIED TEENS IN FEDERAL IMMIGRATION CUSTODY IN THE TRUMP-PENCE ERA 28 UCLA Women's Law Journal 47 (Summer, 2021) In 2017, Scott Lloyd, the newly appointed director of the Office of Refugee Resettlement (ORR) declared that henceforth pregnant teens in federal immigration custody could not obtain an abortion without his express consent. This quickly proved to be an impossibility on account of Lloyd's deeply held and religiously saturated antiabortion beliefs.... 2021
Shelley Welton THE BOUNDS OF ENERGY LAW 62 Boston College Law Review 2339 (October, 2021) Introduction. 2341 I. A Materialist Account of the Field and Its Failings. 2347 A. New Energy Sources and Uses Emerge: 1850-1930. 2348 B. New Deal Legal Gap-Filling and the Mid-Century Détente: 1930-1970. 2353 C. The (Partial) Collapse of the Consensus: 1970-2000. 2357 D. 1990s--2020: Energy Law Meets Climate Change, First Generation. 2361 II. The... 2021
Shoba Sivaprasad Wadhia, Christopher J. Walker THE CASE AGAINST CHEVRON DEFERENCE IN IMMIGRATION ADJUDICATION 70 Duke Law Journal 1197 (February, 2021) The Duke Law Journal's fifty-first annual administrative law symposium examines the future of Chevron deference--the command that a reviewing court defer to an agency's reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should... 2021
Suja A. Thomas THE CUSTOMER CASTE: LAWFUL DISCRIMINATION BY PUBLIC BUSINESSES 109 California Law Review 141 (February, 2021) It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms based on their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect Black and other people of color from discrimination and segregation in... 2021
Eddie Bernice Johnson , Lawrence J. Trautman THE DEMOGRAPHICS OF DEATH: AN EARLY LOOK AT COVID-19, CULTURAL AND RACIAL BIAS IN AMERICA 48 Hastings Constitutional Law Quarterly 357 (Spring, 2021) During late 2019, reports emerged that a mysterious coronavirus was resulting in high contagion and many deaths in Wuhan, China. In just a few weeks, cases rose quickly in Seattle, spread to California, and the first instance of the virus appeared in New York (from Iran) on March 1, 2020. As the months pass, it is abundantly clear that less wealthy... 2021
Shalini Bhargava Ray THE EMERGING LESSONS OF TRUMP v. HAWAII 29 William & Mary Bill of Rights Journal 775 (March, 2021) In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component... 2021
Eunice Lee THE END OF ENTRY FICTION 99 North Carolina Law Review 565 (March, 2021) Although entry fiction emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, arriving immigrants stopped at the border are deemed unentered and not here for constitutional due process purposes, even in detention centers... 2021
Deborah M. Weissman , Angelina Godoy , Havan M. Clark THE FINAL ACT: DEPORTATION BY ICE AIR 49 Hofstra Law Review 437 (Winter, 2021) Immigration enforcement has long served as an indicator of the prevailing visceral fears and loathing toward the Other. The foreign is always suspect. Foreigners in great numbers are especially suspicious. These developments are historically tied to the conventions of colonialism, expanded as a function of foreign policy, and to be sure, ideology.... 2021
Tabatha L. Castro, Esq. THE FORGOTTEN PEOPLE 39-WTR Delaware Lawyer 14 (Winter, 2021) How COVID-19 has affected the immigrant community Immigrants in Delaware make up a robust community filled with culture and diversity that makes the First State a unique place to call home. Immigrants work hard daily to support their families in Delaware and even in their native countries, by sending financial assistance to their loved ones.... 2021
Ruben J. Garcia THE HUMAN RIGHT TO WORKPLACE SAFETY IN A PANDEMIC 64 Washington University Journal of Law & Policy 113 (2021) The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia... 2021
Julia Vázquez THE IMPACTED IMMIGRATION LAWYER IN THE ERA OF TRUMP: EMPATHY, WELLBEING, AND SUSTAINABLE LAWYERING 50 Southwestern Law Review 275 (2021) Caldwell's Deported Americans invites the reader to enter a world of empathy for immigrants and their families. Her recommendations for more just judicial and legislative reforms stand in dark contrast to the reality in which immigrants find themselves today and the reality in which immigration lawyers now practice. Yet in the midst of this new era... 2021
Mambwe Mutanuka THE INTERSECTION OF HEALTH POLICY AND IMMIGRATION: CONSEQUENCES OF IMMIGRANTS' FEAR OF ARRESTS IN U.S. HOSPITALS 30 Annals of Health Law Advance Directive 217 (Spring, 2021) Immigrants comprise of almost fourteen percent of the total U.S. population. Despite being legally eligible to apply for numerous health-related services, many immigrants do not pursue conventional health care services. Language, literacy, stigma, and fear of deportation, are contributing factors that deter immigrants from enrolling in these... 2021
Allen Slater , Richard Delgado THE LEAST OF THESE: THE CASE FOR NATIONWIDE INJUNCTIONS IN IMMIGRATION CASES AS A CRITICAL DEMOCRATIC INSTITUTION 25 U.C. Davis Social Justice Law Review 100 (Summer, 2021) Truly I tell you, whatever you did not do for one of the least of these, you did not do for me. --Matthew 25:45 America is fortunate to have a long running and relatively stable democratic government, due in large part to the robustness of many of its democratic institutions. Analogically, one can describe democratic institutions as some of the... 2021
Eliza Sweren-Becker, Michael Waldman THE MEANING, HISTORY, AND IMPORTANCE OF THE ELECTIONS CLAUSE 96 Washington Law Review 997 (October, 2021) Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause's original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress... 2021
David E. Bernstein THE MODERN AMERICAN LAW OF RACE 94 Southern California Law Review 171 (January, 2021) C1-2TABLE OF CONTENTS INTRODUCTION. 172 I. THE MODERN HISTORY OF FEDERAL RACIAL AND ETHNIC CATEGORIES. 187 A. Pre-1964: Official Minority Categories Emerge. 187 B. The 1964 Civil Rights Act and its Aftermath. 190 C. The Nixon Administration: The Philadelphia Plan, the Small Business Administration, the Interagency Commission, and the Origins of the... 2021
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30