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Forthcoming

Volume 78:3

Antiracism in Action
Author: Daniel Harawa & Brandon Hasbrouck

Abstract:

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system who would treat Blackness as synonymous with crime. Judge Gregory’s jurisprudence can—and frequently does—serve as a model for judges in other circuits who are working to enact the vision of a color-conscious Constitution.


Anti-Racist Remedial Approaches in Judge Gregory’s Jurisprudence
Author: Leah Litman

Abstract:

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.


The Other Ordinary Persons
Author: Fred Smith

Abstract:

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture the voices of the impoverished white planter; the dispossessed Native; silenced women; and the enslaved? If not, what more is required of us to understand the original public meaning of the Constitution? And for those who are not originalists, and are partial to common law constitutionalism, are there ways to be more careful that as the law consults the wisdom of the ages, so as not to sever entire sources of wisdom?

This brief symposium essay engages these themes, offering two modest, interrelated claims. The first that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and perspectives marginalized and subjugated members of the American community. The second is that additional scholarly attention should be given to the moments in which jurists center and elevate the voices and perspectives of the marginalized. To that end, this essay focuses on a Fourth Circuit cases in which Judge Roger Gregory did center such perspectives: United States v. Curry. What this moment reveals is that centering traditionally marginalized, subjugated voices does not have a perceptibly ideological valence.


Which America?: Judge Roger L. Gregory and the Tradition of African American Political Thought
Author: Daniel Fryer

Abstract:

In this essay, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African American political thought. I suggest that, at bottom, Judge Gregory has a levelling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well off integrated into a fully equal society. By comparing and contrasting his work with other legal and political thinkers in this tradition, I sketch an example of how Judge Gregory uses his role in the judiciary to help shape an America that lives up to the ideals expressed in its founding documents.


When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn’t Be So Quick to Praise Bostock
Authors: Elena Schiefele

Abstract:

Justice Neil Gorsuch’s approach to textualism, which this Note will call “muscular textualism,” is unique. Most notably exemplified in Bostock v. Clayton County, muscular textualism is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text. Because Justice Gorsuch’s opinions exemplify muscular textualism in a structured and consistent manner, his appointment to the Supreme Court provides the forum from which he can influence the decision-making process of other members of the judiciary when they seek guidance from Supreme Court precedent. Accordingly, it is important for both advocates and judges to understand the muscular textualist analysis and its often rights-restrictive results.

Muscular textualism departs from new textualism, the interpretive approach Justice Scalia promoted, in several respects. This Note focuses on two main differences between muscular textualism and new textualism: muscular textualism’s enhanced literalness, which causes the interpreter to adopt the most basic, narrow, and superficial interpretation of the text rather than exploring the nuances of the phrase at issue, and muscular textualism’s constrained view of what context interpreters may consider when discovering the proper meaning of the text. Part III of this Note applies the framework developed in Part II to two interpretive questions that have created a circuit split. First, it examines whether Section 2 of the Voting Rights Act prohibits restrictive voter ID laws. It then turns to Title III of the Americans with Disabilities Act and asks whether plasma centers are subject to compliance with Title III. Finally, this Note concludes by pointing to the potential impact of muscular textualism beyond the confines of statutory interpretation.


Deportation and Depravity: Does Failure to Register as a Sex Offender Involve Moral Turpitude?
Authors: Rosa Nielsen

Abstract:

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes seem antiquated as well. The framework also leads to inconsistent results. This is partly because courts make CIMT determinations using the categorical approach, which is as confusing as it is controversial. In addition, the standard may allow for arbitrary and potentially discriminatory decisions by immigration adjudicators.

This Note evaluates a CIMT determination that the Eighth Circuit recently upheld. There, the court agreed that failure to register as a sex offender involves moral turpitude. This Note argues that the Eighth Circuit applied the categorical approach incorrectly and relied on an outdated case that should be overturned. A violation of Minnesota’s sex offender registration law lacks the requisite depravity and intent to be a CIMT. Further, this Note contends that the moral turpitude standard creates too many problems and should be abandoned in immigration law.

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