Monthly Archives: September 2014

Whiteness as Property at Twenty Years

This week I’ll be speaking at UCLA as part of a symposium on Cheryl Harris’ “Whiteness as Property,” which came out just over twenty years ago in the Harvard Law Review. The program, with links to concurrent sessions, is available here. The symposium is a full schedule from October 2-4. I’ll be speaking on Saturday about a work in progress called “Identity Entrepreneurs,” which is a follow-up to my own Harvard Law Review article “Racial Capitalism,” which came out last year.

Unfortunately I will miss the Thursday events due to a commitment back here in Denver, but it should be a great event from start to finish. I think CLE credit is available for almost all of the various panels.

Danielle Citron and Robin West: On Legal Scholarship

This brief essay  by Danielle Citron (Maryland) and Robin West (Georgetown) makes several important points about the value of legal scholarship. Citron and West discuss some of the ways that legal scholarship has quite directly affected the development of the law. Sexual harassment law is a well-known example:

“[I]t is easy to find concrete proof of the impact of normative legal scholarship – recognition that sexual harassment of women in the workplace was discrimination under Title VII of the Civil Rights Act of 1964 was debated, thought through and articulated by scholars before it was embraced by courts, legislators and regulators.”

Along the same lines as Citron and West, Jack Chin has collected a number of other examples of the impact of scholarship on the law here and here (scroll down for Chin’s series of seven posts about work cited by the Supreme Court). In light of these examples to the contrary, those who claim that legal scholarship does not influence the development of the law must explain away a considerable amount of evidence to the contrary. Continue reading

Michael Smith: Regulating Law Enforcement’s Use of Drones

I learned a lot from this paper by recent UCLA Law grad Michael Smith. Smith offers a compelling argument that the judiciary is ineffective at addressing privacy issues raised by advances in drone technology. He instead advocates state legislation to balance the privacy and law enforcement interests that drones raise.

Here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

You can also read Michael’s very interesting blog here. He writes regularly about privacy and technology issues as well as other areas of the law.

Danielle Citron: “Hate Crimes in Cyberspace”

I recently finished reading “Hate Crimes in Cyberspace,” an important new book by Danielle Keats Citron. I hope to write up some thoughts here in the coming weeks. For now, I simply want to recommend that everyone read the book. It’s compelling, thoughtful, and timely. And in the meantime, the Guardian has an excellent review by Katharine Quarmby. Here’s an excerpt:

In Sartre’s play his three unhappy characters are trapped, without an exit. But we have one. The law, Citron writes, has what she calls an “expressive value” – it helps us distinguish between right and wrong, and it can result in offenders being put behind bars. Site operators can remove the anonymity of trolls and delete abusive speech. But the heavy lifting comes down to us, trapped in the virtual room with one another.

Constitutional Litigation Practicum

I’m excited to announce that in Spring 2015 — in addition to my regular Criminal Procedure and Constitutional Law II classes — I’ll also be co-teaching a new course tentatively titled “Constitutional Litigation Practicum.” The course will combine doctrinal and skills-based learning about litigating under 42 U.S.C. 1983.

My co-teacher will be star litigator Qusair Mohamedbhai, one of the founders of Denver law firm Rathod Mohamedbhai. Qusair recently secured the largest settlement in Denver history against the Denver Police Department for a case involving jailhouse brutality. The case also catalyzed a number of systemic changes to the Denver Police Department, including a request by a federal judge for federal oversight and changes in departmental leadership. Continue reading

Constitution Day and Other Upcoming Speaking Engagements

I am pleased to be giving a talk on Burwell v. Hobby Lobby tomorrow, September 17, at a Constitution Day event sponsored by the University of Denver Chaplain. More information about the event is available here.

I thought I’d also take this opportunity to mention a few other speaking engagements I have coming up this semester.

On October 2-4, I’ll be participating in a wonderful symposium at the UCLA School of Law to discuss the impact of Cheryl Harris‘ groundbreaking article “Whiteness as Property,” which the Harvard Law Review published in 1993. My panel will discuss the idea of entitlement and its intersection with the law. My copanelists include Tristan Green (USF), Camille Gear Rich (USC, visiting at Stanford), Osamudia James (Miami), and Leticia Saucedo (UC Davis).

On November 14-15, I’ll be participating in the seventh annual ClassCrits conference, which will be held at UC Davis. My panel, called “The Discourse of Inequality,” also includes Camille Gear Rich (USC, visiting at Stanford), Neil Gotanda (Western State), and Anthony Paul Farley (Albany, visiting at Kentucky).

On November 21-22, I’m presenting at the 2014 University of Wisconsin Discussion Group on Constitutionalism. The discussion group’s theme is “Judicial Supremacy and Its Critics.”

I’ll post more about each of these events as they approach.

The Other Marriage Discrimination, in Singular Magazine

Singular Magazine has published a slightly modified version of my piece on bias and discrimination against single people. (The original piece appeared on Huffington Post.) Speaking as a non-single person, I recommend Singular more generally as one perspective on issues that tend to affect single people.

“Gender Discrimination and Same-Sex Marriage”: forthcoming in Columbia Law Review Sidebar

I’ve coauthored a short essay with my University of Denver Sturm College of Law colleague Ian Farrell — “Gender Discrimination and Same-Sex Marriage” — and am now pleased to share that the piece will be forthcoming in the Columbia Law Review Sidebar. (For non-legal/non-academic folks, the Sidebar is the online companion to the traditional print format of the Columbia Law Review.) I’ll have more details about the timing of publication soon.

I’ve previously written about the gender diversity argument (or do I mean “argument”) against same-sex marriage here on and on Prawfsblawg.

“Negative Identity”: Forthcoming in the Southern California Law Review

I’ve very pleased to announce that I have accepted an offer to publish my article “Negative Identity” in the Southern California Law Review. I look forward very much to working with the bright and dedicated students at USC.

A draft of the article is available here. Since the article is slated for publication in September 2015, I have time to edit the piece. I welcome comments on the piece, which is available on SSRN. Here is the abstract: Continue reading