Civil Rights

The Reconstruction Congress provided for civil rights removal jurisdiction to enable a state-court defendant with defenses based on federal civil rights to remove the case against them to federal court. A series of late nineteenth-century Supreme Court decisions rendered the provision practically useless until Congress invited federal courts to reinterpret the statute in the Civil Rights Act of 1964. New archival research reveals how lawyers at...

Book bans and censorship battles have garnered considerable attention in recent years, but one of the most critical battlegrounds is kept out of the public eye. Prison officials can ban any book that threatens the security or operations of their facility. This means that the knowledge access rights of incarcerated people are subject to the judgments of the people detaining them. This Note focuses on books about Black people in America and books...

WEAPONIZING PEACE

Yuvraj Joshi*

American racial justice opponents regularly wield a desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. This Essay examines the weaponization of peace historically and in legal cases about property, education, protest, and public utilities. Such peace claims were often made in bad faith and with little or no evidence, and the discord they claimed to address was actually the result of hostility to racial...

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected...

As the flaws, injustices, and harmful effects of cash bail systems have come under the spotlight, some plaintiffs have successfully brought § 1983 claims against municipalities in federal court challenging the constitutionality of judicially promulgated bail schedules. Adherence to these bail schedules deprives detainees of individualized bail-setting hearings and results in the detention of those who are unable to pay the prescheduled bail amount....

SEX ASSIGNED AT BIRTH

Jessica A. Clarke*

Transgender rights discussions often turn on the distinction between “gender identity” and “sex assigned at birth.” Gender identity is a person’s own internal sense of whether they are a man, a woman, or nonbinary. “Sex assigned at birth” means the male or female designation that doctors ascribe to infants based on genitalia and is marked on their birth records. Sex assigned at birth is intended to displace the concept of “biological...

In Borrowing Equality, Professor Atkinson deftly demonstrates Congress’s nonsensical bifurcation of the twin concepts of “credit” and “debt,” whereby it celebrates and encourages the former and regulates and punishes the latter. She then shows that, in refusing to acknowledge the harmful consequences of indebtedness while legislating credit-based solu­tions to inequality, these credit policies in fact entrench the very hierar­chies...

BORROWING EQUALITY

Abbye Atkinson*

For the last fifty years, Congress has valorized the act of borrowing money as a catalyst for equality, embracing the proposition that equality can be bought with a loan. In a series of bedrock statutes aimed at democ­ratizing access to loans and purchase money for marginalized groups, Congress has evinced a “borrowing-as-equality” policy that has largely focused on the capacity of “credit,” while acoustically separating...

As the courts continue to restrict and further restrict the availability of Bivens remedies, one category of claims has been left behind—medical-care claims brought by people detained pretrial. Because of the way the Supreme Court structured the Bivens analysis in Ziglar v. Abbasi, people incarcerated postconviction can, and do, bring claims under the Eighth Amendment for damages resulting from constitutionally defective...

Varying enforcement of school hair policies and other grooming regulations against students has contributed, at least in part, to disparate exclusion of Black students from classroom and extracurricular activities. The consequences arising out of exclusion from school activities can be severe, ranging from lower academic performance to early involvement with the criminal justice system. Generally, disputes around such policies have been settled...