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Cruelty, Prison Conditions, and the Eighth Amendment

Sharon Dolovich

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice—and thereby creates incentives for officers not to notice—despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-a`-vis society’s prisoners.

Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

The Honorable Marsha S. Berzon

Madison Lecture

In this speech, delivered as the annual James Madison Lecture, Judge Marsha Berzon discusses the availability of judicial remedies for violations of the Constitution. Judge Berzon reflects on the federal courts’ tradition of allowing litigants to proceed directly under the Constitution—that is, without a statutorily based cause of action. This is a tradition that extends much further than the mid-twentieth century cases most commonly associated with affirmative constitutional litigation— Brown, Bolling, & Bivens, for example—and has its roots in cases from the nineteenth and early twentieth centuries. Against this long historical tradition of courts recognizing nonexpress causes of action for violations of the Constitution, Judge Berzon surveys the modern Supreme Court’s jurisprudence, a jurisprudence that sometimes requires constitutional litigants to base their claims on the same sort of clear congressional intent to permit judicial redress now required before courts will recognize so-called “implied” statutory causes of action. Judge Berzon suggests that requiring litigants seeking to enforce constitutional norms to point to evidence of congressional intent regarding the availability of judicial redress misapplies separation-of-powers concerns.

Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach

Ellison S. Ward

In the renowned pair of higher education cases decided in 2003, Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court affirmed the value of diversity as a compelling state interest in the higher education context, while placing careful limits on the means through which a university may utilize admissions to achieve diversity within its student body. As the challenge of creating a narrowly tailored diversity plan has grown, universities have devised a variety of ways to attract, admit, and retain a racially diverse student body, recognizing the unique challenges and frustrations that minority students may face in higher education. Schools such as the City University of New York, the University of Maryland, and the Massachusetts Institute of Technology have utilized scholarships, targeted classes and academic programs during the summer and school year, mentoring, and other student support programs in an effort to raise the low numbers of minority students enrolling in, and graduating from, their institutions. This Note applies the Supreme Court’s affirmative action jurisprudence to such programs, and proposes a framework for analyzing the programs that will allow them to meet the high standards of equal protection analysis. The Note concludes that, though many colleges have ended their programs or opened them to students of all races, such drastic measures are unwarranted.

A Relational Approach to Schools’ Regulation of Youth Online Speech

Benjamin F. Heidlage

This Note examines the current doctrinal difficulties with student Internet speech. Student speech was traditionally protected from school authority when it was performed off campus—it received full First Amendment protection as opposed to the lower level of protection that on-campus speech received. However, the emergence of the Internet as a dominant form of communication has complicated this framework by blurring the line between off-campus and on-campus. As reflected in the Supreme Court jurisprudence, the question of the standard of protection to apply highlights the educational and constitutional issues at stake in student speech. While some courts seem willing to subject all youth speech to the lower constitutional standard, I propose a more nuanced approach. My approach, which I dub the “relational approach,” reframes the debate by reference to the role schools play in our society. The relational approach forces judges to examine the context in which the speech takes place and determine whether society expects such context to be governed by institutional educational authority. By adopting my approach, a more honest and reasonable jurisprudence can emerge.

The Reconstruction Power

Jack M. Balkin

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress’s Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress’s fears, limiting not only the scope of the Reconstruction Amendments but also Congress’s powers to enforce them in decisions like  United States v. Cruikshank and the Civil Rights Cases. Due to these early cases, Congress was often forced to use its Commerce Power to protect civil rights. Modern decisions beginning with City of Boerne v. Flores and United States v. Morrison have compounded these errors.

When we strip away these doctrinal glosses and look at the original meaning and structural purposes underlying the Reconstruction Amendments, we will discover that the Reconstruction Power gives Congress all the authority it needs to pass modern civil rights laws, including the Civil Rights Act of 1964. That was the original point of these amendments, and that should be their proper construction today.

When it enforces the Reconstruction Amendments, Congress is not limited to remedying or preventing state violations of rights. It has long been recognized that Congress may reach private conduct through its Thirteenth Amendment powers to eradicate the badges and incidents of slavery. But Congress also has the power to enforce the Fourteenth Amendment’s Citizenship Clause—a guarantee of equal citizenship that, like the Thirteenth Amendment, contains no state action requirement. The Citizenship Clause, designed to secure equality of citizenship for freedmen, gives Congress the corresponding power to protect the badges and incidents of citizenship. Congress may therefore ban discriminatory private conduct that it reasonably believes will contribute to or produce second-class citizenship.

In addition to having powers to enforce the Citizenship Clause, Congress also may reach private action to prevent interference with federal constitutional rights. Along with its powers to enforce the Guarantee Clause, Congress may therefore reach private violence designed to deter political participation, terrorize political opponents, or undermine representative government.

The failure of state and local governments to guarantee equal protection of the laws was a central concern of the framers of the Fourteenth Amendment, and giving Congress the power to remedy this violence was thus one of the central purposes of the amendment. Today, this same power enables Congress to pass laws banning violence directed at women and other federal hate crimes legislation.

Finally, because of institutional differences between courts and legislatures, Congress may implement the state action requirement more broadly than courts currently do, for example, by imposing antidiscrimination norms on government contractors and operators of public accommodations. For this reason Title II of the 1964 Civil Rights Act, which bans discrimination in public accommodations, is not only a legitimate exercise of Congress’s power to enforce the Fourteenth Amendment; it is a paradigmatic example of that power.

The Supreme Court did not reach these questions in 1964 because it feared that overturning old precedents like the 1883  Civil Rights Cases would encourage Southern resistance to the new Civil Rights Act. But we should have no such compunction today. It is long past time to remedy the Supreme Court’s errors, and reconstruct the great Reconstruction Power of the Constitution.

“The People” of the Second Amendment: Citizenship and the Right to Bear Arms

Pratheepan Gulasekaram

The Supreme Court’s recent Second Amendment decision, District of Columbia v Heller, asserts that the Constitution’s right to bear arms is an individual right to armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term “the people” as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited to citizens. Second, the Article situates Heller within a historical context of gun regulation motivated by racial animus and xenophobia, manifested by contractions of citizenship to exclude—and gun laws intended to disarm—racial minorities and noncitizens. Third, the Article attempts to revive a coherent theory justifying the limitation of gun rights to citizens but ultimately concludes that armed self-defense is conceptually unrelated to historically political rights such as voting and jury service. Thus, Heller’s holding regarding who is entitled to armed self-defense is logically unsound and doctrinally troubling.

In Goodridge’s Wake: Reflections on the Political, Public, and Personal Repercussions of the Massachusetts Same-Sex Marriage Cases

The Honorable Roderick L. Ireland

Brennan Lecture

In the Sixteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Roderick L. Ireland, Senior Associate Justice of the Massachusetts Supreme Judicial Court, discusses the seminal case Goodridge v. Department of Public Health and a judge’s role in controversial decisions. Justice Ireland explains
the rationale behind his majority vote in Goodridge, as well as his dissent in Cote-Whitacre v. Department of Public Health, and the extreme public backlash that followed the same-sex marriage cases. Through the personal lens of his own experience dealing with the extreme reaction to Goodridge, Justice Ireland addresses how judges should handle such controversial cases while remaining true to the role of the judiciary.

The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law

Cary Franklin

This Article argues that the anti-stereotyping theory undergirding the foundational sex-based equal protection cases of the 1970s, most of which were brought by male plaintiffs, has powerful implications for current controversies in sex discrimination law which have long been obscured by the dominant narrative about these cases. For decades, scholars have criticized Ruth Bader Ginsburg for challenging the constitutionality of sex-based state action in cases featuring male plaintiffs. They have argued that the predominance of male plaintiffs caused the Court to adopt a narrow, formalistic conception of equality incapable of rectifying the subordination of women. This Article offers a new account of the theory of equal protection animating Ginsburg’s campaign. It argues that her decision to press the claims of male plaintiffs was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes. This “anti-stereotyping” theory drew on the arguments of transnational movements for sex equality that emerged in the 1960s, including the movement to combat sex-role enforcement in Sweden and the women’s and gay liberation movements in the United States. The Burger Court incorporated the anti-stereotyping principle into sex-based equal protection law in the 1970s, but the significance of this doctrinal shift has long been overlooked, in part because the Court initially applied the new doctrine only in a limited set of domains. In recent years, the Court has extended anti-stereotyping doctrine beyond the provisional limitations established in the 1970s and in ways that are deeply relevant to questions at the frontiers of equal protection law today.

The Other Loving: Uncovering the Federal Government’s Racial Regulation of Marriage

Rose Cuison Villazor

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

Michael A. Helfand

This Article considers a trend toward what I have termed the “new multiculturalism,”
in which conflicts between law and religion are less about recognition
and symbolism and more about conflicting legal orders. Nothing typifies this trend
more than the increased visibility of religious arbitration, whereby religious groups
use current arbitration doctrine to adjudicate their disputes not in U.S. courts and
under U.S. law, but before religious courts and under religious law. This dynamic
has pushed the following question to the forefront of the multicultural agenda:
Under what circumstances should U.S. courts enforce arbitration awards issued by
religious courts in accordance with religious law? Indeed, with growing skepticism
regarding the oppressive potential of religious majorities, critics have questioned
whether religious arbitration has any place in a regime dedicated to individual liberties.
By contrast, this Article contends that current arbitration doctrine can meet
the challenges of the new multiculturalism. To do so, this Article makes two concrete
policy recommendations: (1) courts should redefine the scope of enforceability
of religious arbitration awards by limiting the application of public policy to vacate religious arbitration awards; and (2) courts should expand the application of
the unconscionability doctrine to void religious arbitration agreements.

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