Faculty Bibliography

This JAMA Forum discusses the legacies of slavery, efforts underway at colleges and universities to explore and address the legacies of slavery, and health care system actions to address structural racism.

This chapter explores the implications of the Supreme Court’s revocation of pregnant person’s right to choose to terminate a pregnancy; specifically, it explores implications for individuals’ right to choose to prevent a pregnancy through the purchase and use of contraceptives.Examining what the justices explicitly stated about the impact of the decision in Dobbs v. Jackson Women’s Health Organization on access to contraception, what they did not discuss, and what are likely and possible effects of the discussion, the chapter explores immediately and grave uncertainty and heightened risk not only of unwanted pregnancies but also of job and wage insecurity for many people who can become pregnant as well as jeopardy to public confidence in the courts and law.

When the Supreme Court of the United States decided San Antonio Independent School District v. Rodriguez, the Court's five-to-four decision not only closed the door to federal courts to predominantly Mexican American low-income students seeking constitutional protection against unequal public education; it also rejected claims of federal constitutional right to equal educational opportunity, rebuffed calls for heightened judicial scrutiny of classifications drawn on the basis of wealth or poverty, and let stand unaltered school finance arrangements producing different per pupil expenditures depending solely on where students live. Setbacks though can inspire. Faced with the decision in Rodriguez, advocates pursued efforts in federal legislation reforms, expanded federal aid to schools with predominantly low-income students, and state-based litigation and reform efforts. And because the Rodriguez decision rejected stringent judicial scrutiny of wealth-based classifications, it opened the door to the use of socioeconomic status as a priority for admission to educational programs. Such creative responses are also legacies of Rodriguez. Current serious challenges can and should similarly elicit resilient and inventive approaches, including the uses of digital and technology resources as well as greater self-direction for students and their teachers in a world soon to be reshaped by readily available artificial intelligence resources. Although disappointment with public schooling has led families of different racial, ethnic, and income groups to pursue charter schools, vouchers or tax credits for use in private schools or family-funded private schooling, and homeschooling, new technologies and resources can strengthen equal educational opportunities for all children in the nation.

The Facing History team always emphasised the importance of integrating head and heart in learning, especially in learning about hard issues. Madam Ogata, a political scientist from Japan and daughter of a diplomat, was trained at the University of California and became a professor and a dean in Japan before her appointment as the first woman to lead the UN High Commissioner for Refugees. Movements to recognise individual human rights challenge the historical conceptions of borders. Once each individual is understood to be a rights bearer of equal dignity, the rationales of family privacy and state sovereignty no longer shield violations of individual rights from view and action. In the wake of intergroup violence, the usual calls urge reconciliation or sufficient quelling of the disturbance to permit peaceful coexistence.

In the United States, employers, schools, and governments can face two competing legal requirements regarding racial classifications: on the one hand, there are legal restrictions against conscious uses of racial classifications, and on the other hand, there are rules forbidding racially disparate impacts. Growing use of machine learning and other predictive algorithmic tools heightens this tension as employers and other actors use tools that make choices about contrasting definitions of equality and anti-discrimination; design algorithmic practices against explicit or implicit uses of certain personal characteristics associated with historic discrimination; and address inaccuracies and biases in the data and algorithmic practices. Justice Rosalie Abella’s approach to equality issues, highly influential in Canadian law, offers guidance by directing decision makers to (a) acknowledge and accommodate differences in people’s circumstances and identities; (b) resist attributing to personal choice the patterns and practices of society, including different starting points and opportunities; and (c) resist consideration of race or other group identities as justification when used to harm historically disadvantaged groups, but permit such consideration when intended to remedy historic exclusions or economic disadvantages.

The reasons why individual nations and even individual people subscribe to notions of human rights vary enormously. Rationales range from idealism to realpolitik and sound in competing registers of theology, social contract, nature, utility, and game theory.1 Pervasive in discussions of human rights is the dignity of each person as both a reality and a normative guide. Capacious and ambiguous, this notion of dignity may invite agreement precisely because different people project different meanings onto it. Its recognition, though, can inspire attitudes of respect and civility even when we disagree. Dignity thus serves less as a foundation and more as a lodestar, an aspiration. Justice Thurgood Marshall once explained, “A child born to a [B]lack mother in a state like Mississippi… has exactly the same rights as a white baby born to the wealthiest person in the United States. It’s not true, but I challenge anyone to say it is not a goal worth working for.”2

DUNWODY DISTINGUISHED LECTURE IN LAW

What should happen when claims for religions accommodation clash when antidiscrimination norms? Increasing conflicts of this sort are arising in the contexts or employment, education, and health care. The distinctively American reliance on litigation exacerbates conflicts of this sort by treating them as winner-take-all disputes. After examining a range of current disputes over religious exemptions and antidiscrimination laws, I will compare alternatives to winner-take-all litigation. These include proportionality review by courts, federalism – allowing decentralized and and contrasting solutions, and negotiated resolutions, which can include settlements, contracts, legislation, and mediation. Because civil wars have erupted over just these kinds of disagreements, the exploration for workable alternatives is a vital task – and the result can produce compromises or converging positions.

A guiding principle of regulation of communications in the United States has been the public interest, but what does the concept of the public interest mean today, a time when the sheer amount of misinformation can drown out accurate information? This essay, presented as a discussion, explores the problems of misinformation in the age of digital media. Though the authors do not agree on all elements of their proposed reforms, they propose ideas such as the articulation of a core set of journalistic principles for anything major media companies label “news”; increasing support for public libraries, media literacy education, and public media; establishing a nonprofit public internet; requiring large internet platforms, which arguably function like a public square, to publicize their community standards for removing content and to adopt policies to at least slow the distribution of content that incites imminent violence; and staying abreast of international ideas that might be of use in the United States.

The combination of a global pandemic and global jeopardy to democracies exacerbates deficiencies in American education for children and youth and underscores the critical importance of renewed and amplified investments of resources and ideas. Underinvestment and stark disparities in educational opportunities persist across the nation. Inequities follow zip code and students' family income, and correlate with race and neighborhood, underscoring the differing effects of crime, family fragility, and access to educational opportunities outside of schooling. These matters take on constitutional significance at this time of frailty for many constitutional democracies, including the United States. Actually, America's constitutional democracy both presumes and supports commitments to educating each generation in the knowledge and dispositions to enable self-governance, in theory, as well as equipping successive generations to take on adult employment and family roles. Yet by presuming what is also a goal, the Constitution has not given rise to sturdy recognition of a federal right to education. Recent litigation advocating for constitutional recognition and enforcement of federal educational rights seeks judicial engagement, political action, and public attention. Arguments include historic roots in the views of the framers and national leaders, doctrinal developments in substantive due process and equal protection, and repeated Supreme Court articulations of the unique significance of education to the nation and its form of government. Objections to judicial recognition of a federal right to education can be countered and such a federal right could also be developed through legislation and practice. Work in this vein may stumble when it comes to spelling out the elements and priorities for practice; guided by education's relationship to constitutional democracy, its commitments should include cultivating understanding of facts, reasoned arguments, tolerance for social differences amid membership in communities, and the avenues for political participation and guards against tyranny. Whether enacted through judicial orders or political processes, legal commitments should address the promise and dangers from expanding home schooling and remote-access digital learning while deepening education critical to constitutional democracy.

What do restorative justice initiatives and racial justice initiatives have to offer one another? In high schools and in criminal law settings, these phrases name and mobilized people, resources, and critiques. Despite real differences in original methods, there seems much for racial justice and restorative justice to share. Racial justice advocates rightly call for both personal change and also systemic transformation. Restorative justice points toward political, legal, and economic policies and practices while also working hard on transformations of the attitudes, feelings, and world-views of individual. Both need to attend as well to media and public education, as well as the day-to-day interactions in communities. And both point to ways to connect the personal and the structural, the interpersonal and the political, the individual freedom to act and the collective systems that so often seem hard to move. And both can focus on the concentric circles of actors and contributing influences on conflicts that can be resources for change.

“There’s a big difference between equality and equity,” said now Vice President Kamala Harris as she ran for the presidency of the United States, and many millions watched and shared her video, which depicted one mountain climber who starts in a deep hole and another who starts much higher up.1 On the very day of his inauguration, with Vice President Harris at his side, President Joe Biden embraced the word “equity” in executive orders.2 He charged Susan Rice, director of his Domestic Policy Council, “with ensuring that the new administration embeds issues of racial equity into everything it does.”3 Federal agencies have been ordered to report on systemic barriers hampering access to benefits, services, and procurement opportunities. Immediately, critics responded with objections. Some charged the new administration with seeking to install discriminatory practices, favoring some racial and ethnic groups over others and attempting to inflame rather than heal racial division.4 Commentator Noah Rothman warned, “In practice, that looks less like ‘equity’ and more like ‘retribution.’”5 Others attacked the Biden administration’s approach for promoting a “spoils” system, more governmentally imposed constraints on freedom, and abandonment of equality.6 In contrast, key advisor Rice declared, “Advancing equity is a critical part of healing and of restoring unity in our nation.”7 Robert Kuttner, a commentator on the left, however, warned that change will come only with massive restructuring of the power relations across labor, capital, and government, as well as class-based coalitions against racism.8 The political debate reflects, but also clouds, work underway in educational and employment settings. Over the course of the last decade, “equity” initiatives have been organized in U.S. schools, in human resources departments at colleges, in corporations, in philanthropies, and in nonprofit organizations. Often, “equality” appears as the inadequate alternative. For example, a memorable cartoon circulating on the internet depicts two scenes of three children looking over a fence at a ball game. The first scene is labeled “Equality” and shows each child standing on a box with the tall child looking easily over the fence, a middle-size child able to just see over the fence, and a small child unable to see over the fence at all. The second scene, labeled “Equity,” depicts the tall child able to look over the fence while standing on the ground, the middle-size child able to see over the fence by standing on one box, and the small child, now standing on two stacked boxes, also able to see over the fence; all three are essentially getting the same view.9 The images provide vivid contrasts. They are invoked in discussions urging equity rather than equality. Individualized accommodations for students with disabilities represent one version of equity, already mandated and implemented by law under frameworks labeled in terms of antidiscrimination, inclusion, or equality. Whatever it is called, treating everyone the same, regardless of background factors, historical inequities, and personal situation, inspired Anatole France’s observation, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”10 Tailored treatment, rather than identical treatment, could proceed based on assessments of an individual’s needs and situation or instead based on diagnosis of systemic conditions of disadvantage and exclusion. But the contrast between the terms “equality” and “equity” does not illuminate real differences in potential visions of society. The terms “equality” and “equity” have become weapons in polarized political arguments rather than analytic tools. The political volley over words neglects and obscures decades of litigation, policy, and academic work in both American law and comparative law. The U.S. Constitution prohibits government denial of “equal protection” of the laws; state and federal statutes guard against discrimination on the basis of individual characteristics (e.g., race, gender, disability, age, sexual orientation or identity). The relevant state or federal authority does not use the term “equity.” In ongoing litigation challenges to any attention to race used by the admission processes of selective colleges and universities, the defense must proceed by reference to the Fourteenth Amendment’s guarantee of equal protection of the law as well as statutory protections against discrimination or exclusion on the basis of race.11 Dumping on “equality” is a poor strategy for any who support inclusion, affirmative action, and overcoming historic and ongoing barriers based on individuals’ group membership or situation. Attacking “equality” jeopardizes public support and surrenders intellectual and legal resources—including laws and judicial decisions—otherwise available for enforceable changes. Ceding the term “equality” to those who oppose any redress of historic and systemic disadvantages is especially shortsighted in a nation where courts have ruled that “classification” of individuals on the basis of certain personal characteristics (including race, gender, and religion) requires the most skeptical scrutiny. Further, tensions among current uses of “equity” hamper articulation of and steps toward potential initiatives at the levels of interpersonal, institutional, economic, and political action. This article seeks to clarify the meanings behind contemporary uses of the terms “equality” and “equity.” It also supports the conception, associated at times with equality and at times with equity, of laws and policies that are responsive to individual and structural differences in people’s circumstances. Lawyers, students, and policy makers work every day with the constitutional language of “equal protection of the laws,” as well as with statutes and regulations forbidding discrimination on the basis of protected traits, such as race and gender. Although these sources do not speak of “equity,” dismissing them would be a big mistake. Not only are these sources the law of the land: the terms and underlying conceptions of “equal protection” and “antidiscrimination” can be crucial tools for redeeming the promise of the Declaration of Independence and the Reconstruction Amendments—the promise of a nation where each person is secure and enjoys the same freedoms and opportunities as others, a nation that rejects status spelled by birth, race, or other happenstance. This is a promise worth fortifying, elaborating, and improving, not casting out or conceding away to those who resist continuing struggles in this historic spirit.

In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.

The Facebook Oversight Board should be mindful that Facebook is not a government—and that the platform’s decisions denying active accounts or taking down posts pose no threat of loss of liberty to any person.

The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court. This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.

An ideal accompaniment to any civil procedure casebook, including the authors' own Civil Procedure: Doctrine, Practice, and Context, Fifth Edition, the 2019-2020 statutory supplement presents the current Federal Rules of Civil Procedure (FRCP). Useful cross-references to Advisory Committee Notes, Restatement sections, and Transnational Rules have been integrated into the FRCP to help students explore the larger context of each Rule.

In the aftermath of crimes against humanity and gross violations of human rights, should international legal institutions promote the use of criminal sanctions or instead support forgiveness and reconciliation? Either response is better than silence, but comparing prosecutions and reconciliatory steps brings tough choices, both legally and politically. Adversarial criminal prosecution holds the promise of generating facts, holding individuals accountable, and deterring future horrific conduct, but criminal trials also can be time-consuming, expensive, inevitably selective, remote in time and location from the lives of those most affected, and indifferent to the goals of social peace and personal healing. Truth and reconciliation commissions, exemplified by South Africa’s effort following the end of Apartheid, represent an alternative justice mechanism that pursues truth-telling and opportunities for reconciliation, rather than punishment. Such methods can provide occasions for individual wrongdoers to apologize, and for victims and survivors to forgive, but these methods can also be marred by corruption, compromise, and an appearance of condoning terrible acts. Trading truth for punishment may offer a predicate for social reconciliation, but unconditional amnesties following terrible violence — and pardons following flawed trials — likely signal political pressures to sacrifice justice. The choice among approaches is left open in the design of the International Criminal Court (“ICC”), which seeks to encourage domestic legal systems to pursue international crimes against humanity, genocide, and other gross violations of human rights within their national justice systems. Through its notion of “complementarity,” the ICC seeks to localize international norms through a relationship between domestic courts and a permanent Court with potential jurisdiction across the world; the ICC actually loses its authority to proceed when the domestic jurisdiction does so in an adequate way. To set the standards for international justice — and to build capacity to pursue justice in nations where mass violence occurs — should the international institution treat truth commissions, grants of amnesty, and other alternatives to prosecution as satisfying the predicate of national action that in turn deprives the ICC of authority to proceed? This Article analyzes the debates around alternatives to trials in fulfilling complementarity and advances recognition of some domestic restorative justice processes under specified criteria. The issues this Article explores have implications not only for international criminal justice but also for alternatives to adjudication in national and local responses to any criminal conduct.

Including excerpts from the Restaements (Second) of Judgments, U.S. Constitution, U.S. Code, Transnational Rules of Civil Procedure, State Long -Arm and Venue Statutes, and Recent Supreme Court Case Law.

The ecosystem of news has changed beyond the imagination of anyone living when the First Amendment was drafted. Changes in the private industry of the press leave some communities with no local news coverage.A majority of people in the United States now receive news selected for them by a computer-based mathematical formula derived from their past interests, producing echo chambers with few opportunities to learn, understand, or believe what others are hearing as news. Traditional news media—now called “legacy media”—is shrinking, cutting staff, and relying on freelancers. Meanwhile, digital platforms surge in usage, profits, and revenues from advertising, which are used to stimulate engagement and collect data to further target users. This contributes to a world in which fewer than one-third of those surveyed trust mass media to report the news fully and accurately—the lowest number since such surveys began. The recent indictment of thirteen Russians for disrupting the 2016 United States presidential election by spreading divisive and false messages through Facebook, Google, and Twitter underscores what Alexander Meiklejohn put so well: reliable press expression is fundamental to democratic self-governance. What can be done when transformations in technology, economics, and communications jeopardize the production and distribution of, and trust in, news that is essential in a democratic society?

What is the significance of legal education? “Plato tells us that, of all kinds of knowledge, the knowledge of good laws may do most for the learner. A deep study of the science of law, he adds, may do more than all other writing to give soundness to our judgment and stability to the state.” So explained Dean Roscoe Pound of Harvard Law School in 1923, and his words resonate nearly a century later. But missing are three other possibilities regarding the value of legal education: To assess, critique, and improve laws and legal institutions; To train those who pursue careers based on legal training, which may mean work as lawyers and judges; leaders of businesses, civic institutions, and political bodies; legal academics; or entrepreneurs, writers, and social critics; and To advance the practice in and study of reasoned arguments used to express and resolve disputes, to identify commonalities and differences, to build institutions of governance within and between communities, and to model alternatives to violence in the inevitable differences that people, groups, and nations see and feel with one another. The bicentennial of Harvard Law School prompts this brief exploration of the past, present, and future of legal education and scholarship, with what I hope readers will not begrudge is a special focus on one particular law school in Cambridge, Massachusetts.

Democratic governance in societies around the world faces serious challenge today. Education sits at the crossroads of the information revolution and widening inequalities. The frailties of education increase the fragility of democracy. Strengthening each is critical to the other.

The article focuses on the alternatives to the state action doctrine in the era of privatization, mandatory arbitration, and the internet for serving human needs. Topics discussed include increased use of the internet and digital communications; increased privatization of traditionally public services; and importance of the line between governmental and nongovernmental activities.

Communities of responsibility and the cultures that nurture them take many steps to build. An important step is to honor remarkable individuals with courage and commitment. Raphael Lemkin, Benjamin Ferencz, Luis Moreno Ocampo, Emmanuel Uwurukundo, Samantha Power, filmmaker Edet Belzberg, and Victor Koningsberger deserve recognition and honor. At the same time, we need to emphasize that an upstander does not need extraordinary qualities. Ordinary people can and do stand up in small and big ways against oppression and injustice. Education can help. Speeches can help. When we honor heroes, we should not simply recognize individual courage. Doing so can help to constitute a community around the value of standing up. Joining with others to make it more possible for each next act of upstanding can help even more. Pushing to construct peer cultures of upstanding, reducing fears of speaking out against bullying and discrimination, preparing people to recognize and combat denial, rationalization, and feeling overwhelmed, and building social networks of mutual aid and support, will help us all be upstanders and help us rescue the humanity of others and of ourselves.

Written by respected scholars and experienced educators, this book showcases rules and doctrine of civil procedure at work in actual practice of law. The procedural and nonprocedural aspects of the cases are thought-provoking, to hold students’ interest. Each chapter contains a well-written introduction, cases, and clear explanations of the doctrine, supported by comments and questions which deepen students’ understanding and clarify key concepts. This book also includes more than forty well-crafted problems the can be used in or out of class to to help students solidify their understanding of the materials. In-class exercises and simulations based on two sample case files are integrated throughout. Pleadings, memoranda, transcripts, exhibits, motions, and more (all taken from real cases) appear in the Appendix. Features: –All cases and notes have been updated so that the book is current through the early part of 2016. –Authors have added several practice exercises to the text that give students more experiential learning opportunities. –Two sample case files with transcripts, memoranda, exhibits, motions integrated throughout book. –Emphasis on lawyering skills and values and social responsibility Distinguished authorship by experienced educator-scholars. –Revised Teacher’s Manual, along with a new online community for adopters to allow for the sharing of teaching notes and other content among adopters.

An ideal accompaniment to any civil procedure casebook, including the authors’ own Civil Procedure: Doctrine, Practice, and Context, Fifth Edition, the 2016-2017 statutory supplement presents the current Federal Rules of Civil Procedure (FRCP). Useful cross-references to Advisory Committee Notes, Restatement sections, and Transnational Rules have been integrated into the FRCP to help students explore the larger context of each Rule. Complete features include: The current Federal Rules of Civil Procedure and proposed amendments; The U.S. Constitution and U.S. Code provisions current through May 1, 2016; Excerpts from the Restatement (Second) of Judgments; Excerpts from the American Law Institute/UNIDROIT Rules of Transnational Civil Procedure; and Examples of state long-arm and venue statutes.