Civil Rights Litigation Research Articles

Looking for Pauli, Pauli Murray's Trans Poetics

Abstract Pauli Murray was a twentieth-century Black writer, priest, and legal thinker who has been, for the last two decades or so, the subject of a recovery project. As a result, Murray is now regarded as a crucial player in the history of civil rights litigation; in US feminist organizing and theology; and in Black feminist critique in relation to all of the above. Further, the recovery of Murray's contributions has coincided with the narration of Murray as someone who was (or might have been, in another time) trans. Following the lead of Isaac Julien's Looking for Langston (1989), and focusing on Murray's life and work as a poet, this meditative essay considers Pauli Murray as an enduring figure in and for a Black trans literary past.

Forensic Social Work Ethics in Prolonged Solitary Confinement: A Struggle with Dual Loyalty

Substantial evidence on the damaging psychiatric and health-related effects of prolonged solitary confinement has been well-documented in decades of research and civil rights litigation. The emerging ethical dilemma for forensic social work concerns the dual loyalty when social workers are tasked with providing services to clients in restrictive housing. Using Frederic Reamer’s ethical decision-making framework, in concert with the NASW Code of Ethics and the NOFSW Specialty Guidelines on Values and Ethics, the ethical dilemma of dual loyalty in this practice context is explored. Forensic social workers experiencing this unique ethical dilemma are encouraged to consider rational and mindful decision making guided by social work ethical codes and principles of social justice.

Civil Rights Litigation Involving the Dental Care of Incarcerated Persons.

Individuals incarcerated in jails, prisons, and detention centers are unique because they have an entitlement to health care under the U.S. constitution; however, the dental care they receive is highly variable in scope and quality. We identified federal civil rights lawsuits related to dental care by incarcerated individuals that were decided in federal district courts in 2018 and courts of appeals since 1976. Judges dismissed or denied the majority of dental claims. Courts have little guidance to inform decisions relating to dental care because cases rarely have a dental expert and the dental profession has not set forth recommendations about the scope of correctional dental care. In the absence of guidance from the dental profession, oral health policy decisions have been left to the discretion of the courts and correctional administrators (nondentists), yielding inconsistent and often detrimental results.

A Systemic Perspective

A Systemic Perspective

Sanctioning Qualified-Immunity Appeals

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy. There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues. This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more. Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity

AbstractFor more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an “effect-of-judgment” approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader “nature-of-act” approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.

The Strange Career of the Three-Judge District Court: Federalism and Civil Rights, 1954-1976

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases. Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP

Historically-rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research into the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” In this view, property ownership as an entirely private manner unrelated to the public interest and social context more generally. Under the vacuum logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property by radically departing from the conventional norms of legal advocacy. In their briefs and oral arguments, they refuted the vacuum view on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the land US Supreme Court decision that rendered racially restrictive covenants unenforceable. Shelley is a well-studied staple of the 1L curriculum, but legal history has largely ignored the decades of legal efforts that made it possible. This article traces that history in detail. I show how NAACP affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a vast body of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.

A Fare Share: A Proposed Solution to Address the Racial Disparity in Access to Public Transportation Funding in America

Black American households are up to six times less likely to own a car than white families and are four times more likely to rely on public transportation to meet their daily needs. Despite this, communities of color have seen consistent disinvestment in their transit infrastructure. Four hundred years of continued housing segregation combined with post-recession austerity policies and ongoing pro-automobile bias has exacerbated this disparity. This Note proposes a straightforward legislative tool to begin to combat this inequity. The proposed legislation would require that urbanized areas spend their public transit dollars according to the population density of the communities a given project would serve, create reporting requirements related to the racial and economic impact of transit projects, and establish a private right of action. In proposing this legislation, this Note evaluates the state of civil rights litigation as it pertains to transportation racism and draws lessons from other areas such as environmental law in order to put forth a simple solution that would have tangible effects across the country in both the short and long term.

Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity

For more than a decade, the lower federal courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials. Although the Foreign Sovereign Immunities Act comprehensively regulates the immunity of foreign states, the Supreme Court concluded in a 2010 decision, Samantar v. Yousuf, that this statute does not address the immunity of individual foreign government officials. The Court did not dispute that foreign officials are entitled to some immunity from suit, but it indicated that this immunity was to be governed by judicial application of common law rather than by statute. Provided with little guidance about how to discern and develop this body of common law, the lower courts are now divided on a number of issues relating to the scope of foreign official immunity. A key source of the division concerns how to properly conceptualize foreign official immunity. Based in part on their interpretation of a provision in the Restatement (Second) of Foreign Relations Law, some courts apply an “effect-of-judgment” approach that confers immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state. Other courts apply a broader “nature-of-act” approach, whereby immunity would apply whenever the plaintiff’s case is challenging conduct carried out on behalf of the state. This essay critiques the effect-of-judgment approach, explaining that it is difficult to reconcile with Samantar, does not take sufficient account of the foreign relations concerns implicated in suits against foreign officials, and does not constitute the best reading of the Restatement (Second). The essay also contends that, although the effect-of-judgment approach can find some support in domestic civil rights litigation, that litigation is not a useful analogue for suits brought against foreign officials.

Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality in Protest Policing

Thirty years ago, in Graham v. Connor, the Supreme Court determined that excessive-force claims against police should proceed via the Fourth Amendment, which theoretically protects an individual against unreasonable siezures. However, the Court showed extreme deference to law enforcement’s use of force by using a permissive reasonableness analysis that bestows on police great leeway to make quick split-second decisions in tense and rapidly evolving circumstances. The result is a test that, from its inception, has been too forgiving of police violence and misconduct. This lax reasonableness standard, along with qualified immunity principles, has shielded police from § 1983 civil rights litigation in excessive-force cases. However, the obstacles to relief are worse when the victim is not an individual in a regular street encounter but rather an activist during a protest—particularly an activist of color. This Essay explores this phenomenon through the lens of the Dundon v. Kirchmeier litigation that stemmed from the 2016 police assault on indigenous protestors opposing the Dakota Access Pipeline. The encounter left 200 activists injured after law enforcement blasted them overnight with tear gas, special impact munitions, and fire hoses to remove them from the area. In refusing to enjoin the police’s use of these weapons against water protectors, the judge questioned whether the Fourth Amendment even protected activists since police sought to disperse them, instead of arrest them. The judge then reasoned that even if the Fourth Amendment applied, the police use of force was reasonable considering the volatility of the crowd despite information that the plaintiffs themselves were peaceful—thus attributing the conduct of the entire group to the plaintiffs and erroneously amplifying the threat to law enforcement. Both lines of reasoning threaten the safety of protestors. The first removes from Fourth Amendment protection the emblematic protest scenario where police use force to disperse protestors. The second turns the Constitution on its head, foregoing traditional Fourth Amendment analysis, which inquires whether the government intrusion is reasonable in light of the individual’s actions, not the actions of the whole group in proximity to the individual. This is most dangerous to activists of color who are most likely to be perceived as threatening by police and to be the subject of their ire.

Introduction

Introduction Melvin I. Urofsky As usual, we have a potpourri of subjects for you to enjoy in this issue, and we also have contributions from what might be called two generations of constitutional and legal history scholars. David W. Levy is my exact contempo­ rary. We started out together as instructors at the Ohio State University in the 1960s and worked together for many years as the co­ editors of seven volumes of Louis D. Brandeis Letters. He is the official historian of the University of Oklahoma, from which he recently retired as David Ross Boyd Profes­ sor of History. Last year he asked me to read the manuscript of a new book he had written (tasks that we have done for each other for many years now), and while wearing my reader’s cap, my hat as editor of this journal is always near at hand. I suggested an article, and what caught my attention—and what I thought would interest our readers—is the reaction of the University in the McLaurin case. In civil rights litigation, we often hear about what the plaintiffs went through, and often it was indeed terrible, but sometimes the defendant’s actions are also impacted. Several years ago we ran an article by the attorney who argued the case for Kansas in Brown v. Board ofEducation. We think you will find this article just as interesting. Louis Fisher is another old friend. For many years, he was a fixture in the Law Division of the Library of Congress, where he answered legal questions from senators and representatives on a variety of matters. He has retired from that position and is now a scholar in residence at the Constitution Project as well as a visiting professor at the College of William and Mary law school. He is now also free to file amicus briefs in his own name with the High Court. For many years, Louis Fisher has been arguing— and correctly—that Charles Evans Hughes’s famous dictum “the Constitution is what the Supreme Court says it is” is wrong. Our constitutional heritage is developed by input not only from the judiciary, but from Congress, the executive branch, academia, and the people themselves. In this arti­ cle, he takes on the notion that the courts have been the great protector of individual rights and argues that Congress should be given far more credit than it has in the past. D. Grier Stephenson, Jr., the Charles A. Dana Professor of Government Emeritus at Franklin & Marshall College, has been writ­ ing “The Judicial Bookshelf” since before I took over as editor, and that is a long time. I always mention how grateful I am that he 6 JOURNAL OF SUPREME COURT HISTORY keeps working along with me, but it is true. It would be hard to think of the journal without him. Turning to younger scholars, Timothy R. Johnson is the Morse Alumni Distinguished Professor at the University of Minnesota, Rachel Houston is a doctoral candidate there, and Amanda C. Bryan is a newly minted Ph.D. who is an assistant professor at Loy­ ola University in Chicago. They have been working a mine that will keep Court scholars busy for years to come, Justice Harry Blackmun ’s extra-judicial notes that he scribbled in green pencil through his 30+ years in the Marble Palace. During oral argument, Justice Blackmun took copious notes on the case in standard black pencil, but he also wrote about a lot of other things that were on his mind in green. In this article, we get a taste of what the Justice was thinking about. James A. Todd is an assistant professor ofpolitics at Palm Beach Atlantic University, and his subject is one of the great cases of the nineteenth century, Cooley v. Board of Wardens (1852). In that case the Taney Court essentially said that while the federal government under the Commerce Clause has power, if the national government has not acted, then the states are free to do so—even in interstate matters. While the Jacksonian Justices were more concerned with state than with federal powers, Professor Todd shows that the growing nationalism after the Civil War...

Civil Rights Ecosystems

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors (including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel), legal rules and remedies (including state tort law, § 1983 doctrine and defenses, and damages caps), and informal practices (including litigation, settlement, and indemnification decisions) that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success. In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases. Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in § 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies; raises important questions about the mechanics and desirability of regional variation in constitutional protections; and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.

Civil Rights Ecosystems

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded 100 times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors—including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel—and legal rules and remedies—including state tort law, Section 1983 doctrine and defenses, damages caps, and indemnification policies—that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success. In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact; wide variation in civil rights ecosystems across the country; and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1200 civil rights cases filed in five federal districts around the country and surveys and interviews of dozens of plaintiffs’ attorneys who represented plaintiffs in these cases. Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in Section 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies, raises important questions about the mechanics and desirability of regional variation in constitutional protections, and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.

The Casualties Left Behind in Tobacco's Cinders of Combustion.

This paper 1) defines the scope of tobacco-related health disparities; 2) reviews population-based approaches aimed to eliminate disparities- Medicaid, the U.S. Preventive Health Service Task Force, and the Family Smoking Prevention and Tobacco Control Act; and 3) discusses their potential role in reducing tobacco use and lung cancer disparities. The implementation of population-based approaches aimed to reduce tobacco use and chronic diseases has been inequitable. The poor are predominately affected by limited access to comprehensive tobacco cessation coverage. Moreover, lung cancer screenings reveal that those disproportionately excluded are African Americans who have the highest lung cancer incidence and mortality in the United States. The potential impact of the Family Smoking Prevention and Tobacco Control Act is unclear, but the proposed rule to ban menthol combustible and not non-combustible tobacco products could potentially contribute to a cycle of addiction in disadvantaged communities. Alternative solutions, including civil rights litigation, should be investigated. Eliminating tobacco-related health disparities is a health, social justice, civil rights, and ethical issue that deserves immediate attention and equitable policy solutions.

Good Cop, Bad Cop: Using Civilian Allegations to Predict Police Misconduct

In response to high-profile cases of police misconduct, reformers are calling for greater use of civilian allegations in identifying potential problem officers. This paper applies an Empirical Bayes framework to data on civilian allegations and civil rights litigation in Chicago to assess the predictive value of civilian allegations for serious future misconduct. We find a strong relationship between allegations and future civil rights litigation, especially for the very worst officers. The worst 1 percent of officers, as measured by civilian allegations, generate almost 5 times the number of payouts and over 4 times the total damage payouts in civil rights litigation. These findings suggest that intervention efforts could be fruitfully concentrated among a relatively small group. (JEL H76, K38, K42)

The Civil Rights Litigation Clearinghouse: Origins and Goals

The Civil Rights Litigation Clearinghouse (http://clearinghouse.net) solves a significant information deficit related to civil rights litigation by posting information about thousands of ongoing and closed large-scale civil rights cases. Documents are OCR’d and searchable; cases are searchable by metadata tags as well as full-text searching. Each case has a litigation summary by a law student. We live in a civil rights era—a time when people are using the courts, among other strategies, to fight for civil rights. The Clearinghouse posts the records of those fights, the stories of civil rights cases—across topics, across regions, across organizations—and makes them searchable, usable, and available to everybody.

The Ninth Cause: Using the Ninth Amendment as a Cause of Action to Cure Incongruence in Current Civil Rights Litigation Law

The Ninth Cause: Using the Ninth Amendment as a Cause of Action to Cure Incongruence in Current Civil Rights Litigation Law

Police Consent Decrees and Section 1983 Civil Rights Litigation

Research SummarySection 14141 of the Violent Crime Control and Law Enforcement Act of 1994 granted the U.S. Department of Justice (DOJ) the authority to investigate, intervene into, and force reforms within any police department deemed to exhibit a pattern or practice of police misconduct. The DOJ's primary enforcement mechanism is to sue the offending jurisdiction. Such lawsuits are typically settled with “consent decrees” or court‐ordered legal agreements to implement specified reforms. We assembled a panel data set to explore the relationship between consent decrees and civil rights litigation in 23 targeted jurisdictions. The results suggest that DOJ intervention may be associated with modest reductions in the risk of civil rights filings.Policy ImplicationsFederal consent decrees are pursued under the assumption that they reduce civil rights violations, yet this assumption has remained largely untested. Such oversight is unfortunate, as it is important to gauge the effectiveness of time‐consuming and expensive federal intervention into local law enforcement affairs. Our study offers preliminary evidence that consent decrees may reduce civil rights violations, as operationalized by Section 1983 litigation, an indicator of police misconduct. Reductions in such filings may signal increased satisfaction with police agencies and a move toward reduced systemic police misconduct. As such, consent decrees should continue to be considered as a possible tool for correcting problematic police departments, but additional research in this area is critical.

Good Cop, Bad Cop: An Analysis of Chicago Civilian Allegations of Police Misconduct

Preventing police officer misconduct, while giving police officers the incentives and flexibility to fight crime, is a notoriously difficult challenge. We explore whether civilian complaints can help identify and reduce police officer misconduct. Using data on over 50,000 civilian allegations against police officers in Chicago over a 13-year period, we find that civilian allegations are strongly associated with (1) non-civilian allegations of misconduct, such as allegations from supervisors, and (2) the likelihood of and outcomes in civil rights litigation. We conclude that civilian allegations contain a strong signal of police officer misconduct. In particular, lawsuits against police officers are external and quantifiable measures of officer misconduct and typically arise from serious incidents. We further find that, if an administrative body sustains an allegation against an officer, that officer’s civilian allegation rate decreases and the probability that he or she exits the force increases. We conclude that civilian allegations against police officers in Chicago can be better utilized to prevent misconduct.