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Litigating Birthright Citizenship in the Shadow of World War II: The Continuing Relevance of a Forgotten Case
With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has received little prior attention: the degree to which restrictionist arguments, past and present, have relied on the statutory frameworks of their respective eras. The 1942 litigation, which represented the culmination of two decades of efforts by anti-Asian groups to strip Japanese Americans of citizenship, sought to tether judicial interpretation of the Fourteenth Amendment’s Citizenship Clause to the racial exclusions then embodied in the immigration and naturalization laws. While the restrictionist arguments being put forward today are quite different, they, too, are deeply dependent on a particular statutory framework – namely, the array of late-twentieth century legislative changes that have collectively produced the contemporary construction of immigrant illegality. This Article argues that if courts were to allow the interpretation of the Fourteenth Amendment’s Citizenship Clause be guided by the shifting configurations of exclusion embodied in U.S. immigration policy, they would be defeating one of the central aims of the Fourteenth Amendment: to place birthright citizenship beyond the reach of repeal by a subsequent Congress.Police Surveillance and the Perils of Techno-Solutionism
This Article charts domestic law enforcement’s use of video surveillance, beginning in the backlash to the Civil Rights movement in the late 1960s, continuing through the War on Terror and, more recently, in the context of the post-George Floyd public critiques of policing. The undergirding philosophy of policing’s embrace of surveillance technology is techno-solutionism, the view that all complex social situations can be simplified to measurable data primed for quick-fix, unbiased, algorithmic answers. While technology may have initially been adopted by police to respond to specific problems, it has changed the problems themselves, altered the array of potential solutions, and changed policing’s ultimate objectives. In the early 2020s, as data became capable of greater integration and algorithmic analysis, law enforcement turned to video surveillance as a tool to address staffing challenges – a “force multiplier” promising increased efficiency in meeting policing goals with fewer officers. While intended to solve perceived staffing challenges, surveillance technology has remolded the purposes of policing. It has reoriented policing from evidence gathering and deterrence to a focus on constant data collection and crime prediction. This Article introduces the concept of the suspect data double, virtual profiles that reduce each of us to uninterrogated correlations mined from constant surveillance and utilized by law enforcement. It argues that the expansion of police surveillance in the last fifty years, in general, and its techno-solutionist trajectory, in particular, lead to troubling implications concerning how surveillance technology will deepen racial bias and move policing towards pervasive data gathering.The Vanishing Voice: Juror Disenfranchisement in Capital Cases and The Erosion of Constitutional Protections
After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. Florida and Alabama were no exception and have continued to evolve their death penalty laws. Alabama evolved from the requirement of a jury to agree on a death sentence to a requirement of a ten-vote majority for a death penalty recommendation. On the other hand, after the heinous acts of Nikolas Cruz in Parkland in 2018, Florida removed the unanimity requirement and implemented the lowest requirement of any state – eight votes – for the death penalty recommendation. The change was in response to the outcry against Cruz being sentenced to life imprisonment, rather than death. However, it also enhanced an underlying systematic flaw of juror disenfranchisement seen in several states, which has reverted the power of the minority juror vote back to the era of Jim Crow. This Article examines the history of the death penalty and the historical struggle of minorities to gain the right to vote on death penalty panels. It explores the removal of the unanimity requirement’s impact on the minority vote, including the present state of minority underrepresentation on death panels, the feelings of death penalty jurors, and minority divergent perspectives on death. Data has reflected that the use of peremptory challenges leaves death panels with very few minorities to participate in a core process of the legal system. Under these circumstances, the removal of unanimity extinguishes meaningful discussion and creates detrimental consequences, increasing the likelihood that a minority vote on the death panel will be ignored or suppressed and, therefore, abridged. The combination of these factors leads to an erosion of constitutional protections under the Sixth and Fourteenth Amendments. This disenfranchisement cannot be allowed to continue, and solutions such as abolishing the death penalty, extending the Batson test with data requirements for death cases to ensure juror diversity, and requiring all states to mirror the federal death penalty’s procedural protection of unanimity should be considered.The “Founder’s Gaze”: How the Fourth Amendment is a Surveillance Technology that Enables AI to Scale Control Over the Subaltern
Much has been written about the rise of artificial intelligence and machine learning applications and how the current Fourth Amendment law has been unable to mitigate the privacy harm that these tools produce. This article explores how the development and usage of AI and machine learning models is dependent on the originalism principles of Fourth Amendment Law. Utilizing Critical Surveillance Studies and Anticolonial Theory, I posit that the Fourth Amendment is a surveillance technology that categorizes conduct, persons, and places to impose the material conditions for the subjugation of historically minoritized communities within the United States. Furthermore, this article explores the interplay between the Fourth Amendment and these new technologies and how together, they scale the systematic harms for which the Fourth Amendment was intended to cause.(Re)Birth of a Nation: Reconstruction’s Unfinished Business
The irony, alluding to the title of the 1915 silent movie Birth of a Nation, seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society. Ku Klux Klan-sponsored propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental accounts and obscures counter-histories.Reasoning From Injustice
In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice its due.” Tsai argues that three civic faculties must be developed to improve democratic citizens’ capacity to reason from injustice. First, citizens must acquire the capacity to recognize how communal narratives and social ties are manipulated to obstruct a sense of injustice from developing. Iniquity festers when citizens are incapable of drawing the connections between the material deprivations they experience and the laws or policies they cannot readily observe. Second, we need a refined understanding of the various stages of democratic outrage, which entails more than the inculcation of empathy. Beyond learning how principles are supposed to work in ideal conditions, citizens in an aging pluralistic order must acquire a sophisticated understanding of how law, morality, and the economy interact to block humanitarian projects and dissipate justified outrage. Third, a culture of indifference that has metastasized makes reform even more challenging. As citizens become increasingly aware that the very institutions created to promote justice often perpetuate injustice, they will have to confront their reluctance to work with tainted bodies of knowledge. But this ability to use, adapt, and occasionally subvert civic knowledge is crucial to overcoming democratic heartbreak and developing inspiring and effective models for political action.John P. Davis and the Joint Committee
This Article uses archival research and social movement theory to recover a critical but untold story about how John P. Davis innovated novel modes of organizational mobilization and multidimensional advocacy to build power and movement at the intersection of race and the economy in the Jim Crow and New Deal era. It examines Davis’s mobilization of the Joint Committee on National Recovery (JCNR), recovers the mobilization and advocacy models Davis engineered, and tells of the fight Davis and the JCNR waged to achieve racial and economic justice and effect a new— and truly emancipatory—New Deal.Reformed But Not Repaired
Traditionally, scholars and policymakers concerned with making improvements to health care systems and structures have focused on insurance reform. The ACA— the United States’ most recent and substantial healthcare reform—was hoped to be an intervention that would help provide equity to all Americans. Indeed, scholars and policymakers viewed increasing access to health care through insurance coverage as a victory. And yet, despite these interventions, the COVID-19 pandemic revealed a number of policy gaps that disproportionately impacted racial minorities. Specifically, racially marginalized Americans still experienced the starkest disparities in COVID-19 complications and mortality. This has left scholars and policymakers to answer why these disparities existed in an environment where there was supposed to be greater equity across demographic groups in their access to healthcare. This Article contributes to these conversations by exploring this gap. Specifically, this Article argues that insurance reform is ill-suited to dismantle structural inequalities in health. Indeed, this Article suggests that structural racism’s impact is so profound that it may dull the impact of insurance policy. Racialized minorities that have consistently experienced de jure and de facto structural racism, decreased access to desirable social determinants of health, and poor public health infrastructure are not as equipped to weather major health crises as communities that do not have these challenges. The impact of historically discriminatory policies on minority communities set them up for public health failure and persistent health disparities. Utilizing a case study on Flint, Michigan and an original empirical study on lead exposure and COVID-19 mortality, the Article examines the relationship that structural racism has with social determinants of health, with a specific emphasis on infrastructure. To make progress on equity within the health care system, policymakers and scholars must reframe their thinking from insurance reform to more expansive viewpoints on public health policy within the United States.Institutionalized Ostracism
Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism. Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current anti- discrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism.Tribal Legal Licensing of Attorneys, House Counsel Status, and The Opportunity to Redefine the JD Preferred Position and the Entire Lawyer Ecosystem
The recognized right of Indian Tribes to license has been a known reality dating back to the Supreme Court’s ruling in Worcester v. Georgia, 31 U.S. 515 (1832) where state law was found inapplicable on the lands of the Cherokee. However, the modern implications of tribal licensing and regulation have only just begun to be explored in the context of the modern American regulatory system. In fact, the ability of Indian Tribes to license attorneys to practice law within their court systems has largely gone unexamined outside of a few exceptions such as the Tribal Law and Order Act of 2010. In 2022, at Fidelity National Financial, a Fortune 500 Company located in Jacksonville, Florida, the implications of this sovereign power were displayed through my application for “Authorized House Counsel status” in Florida based on my admission to the Bar of the St. Croix Chippewa Indians of Wisconsin, a federally recognized Indian Tribe. After a five-month process with the Florida Bar, I was admitted as house counsel thus providing a case study in the redefining of Indian Tribes as U.S. Jurisdictions of law in the aftermath of the Treaty Era of Indian Affairs. This article will examine the early pioneers of Tribal legal licensing, and the history of Tribes licensing attorneys and advocates in their court system through their sovereignty. This article will also spotlight the incredible opportunity presented for JD preferred position holders and their employers in this underexamined regulatory area. In coordination with house counsel admissions and pro hac vice opportunities, Tribal legal licensing may provide a solution to the attorney shortage in Indian Country and rural areas of the country which has been exacerbated in the aftermath of McGirt.
