Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.
Abstract The Fifth Amendment equal protection doctrine has never been effective at curtailing racialized harm in immigration law. While not expressly drafted to address racially differential impact, the administrative law doctrine known as arbitrary and capricious review has the potential to enable courts to set aside discretionary immigration enforcement decisions as arbitrary and capricious...
Abstract To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. The federal courts had issued dozens of universal injunctions before...
Abstract The Reconstruction Era has garnered renewed attention from legal historians and scholars of the critical race tradition. Yet Reconstruction’s central institutional actor, the Freedmen’s Bureau—a federal agency created to aid emancipated persons’ transition to freedom—has largely eluded theoretical scrutiny. Building upon legal scholarship on Reconstruction, this Essay pans focus away...
Abstract The disestablishment of religion, also commonly referred to as the separation of church and state or separation of religion and government, has been a salutary constitutional principle in the United States. The diminishment of the disestablishment of religion by the U.S. Supreme Court and accelerated superordination of (conservative) Christianity—like so much of the output of the Supreme...
Abstract In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way...
Abstract Unreasonable makes a number of important contributions to discourses on race, crime and justice. First, a central claim of the book is that within policing, race discrimination is not an individual phenomenon or a problem of bad police officers. Rather, bias is seamlessly built in to policing practices, training, accountability policies, and judicial approaches to evaluating police...
Abstract What can public health frameworks tell us about the causes of police brutality and possible remedies? Devon W. Carbado’s book Unreasonable: Black Lives, Police Power, and the Fourth Amendment offers compelling insight into how understanding law as a determinant of the poor health outcomes associated with policing might create new pathways for rethinking the ways that law authorizes...
Abstract Abolition captured national attention in 2020 following the police killings of George Floyd and Breonna Taylor. Despite this attention, stakeholders favoring traditional legal reforms remain skeptical about the abolitionist demand to gradually eliminate police and prisons. Abolitionists, in contrast, have sought to identify how the Constitution can be interpreted to create a society that...
Abstract As the ranks of prison industrial complex abolitionists grow, the question of whether, and if so how, they should engage with criminal procedure doctrine becomes ever more pressing. This Essay engages Devon W. Carbado’s Unreasonable: Black Lives, Police Power, and the Fourth Amendment’s interrogation of whether to “blame” Chief Justice Warren for the expansion of the carceral state...
Abstract In 1991, Rodney Glen King was beaten mercilessly by four Los Angeles Police Department (LAPD) officers after being stopped for driving while intoxicated, igniting national outrage. Despite the brutality being caught on film by a witness, the police officers were acquitted at trial. Three years later, O.J. Simpson led authorities on a nationally televised low-speed pursuit before his...
Abstract Criminal trials increasingly rely on computer programs to generate forensic evidence. But experts in the fields of computer science and forensic science often disagree over whether programs are sufficiently trustworthy to meet the legal admissibility standards for scientific evidence. When adjudicating between these disciplines, courts overwhelmingly side with forensic experts—even when...
Abstract The failure of the legal academy to create professional law school environments embracing the tenets of Critical Race Theory (CRT) sustains racial assault on Black Bodies. Embracing the tenets of CRT can help to improve law school environments, because CRT examines systemic racism and causes individuals to rethink policies and procedures with an antiracist mindset. Further, law school is...
Abstract Exit planning among U.S. citizens is on the rise. A confluence of worrisome domestic conditions— including societal violence, the curtailment of individual rights, and creeping authoritarianism— has prompted U.S. citizens to contemplate and plan for a possible departure from the country. Among the more popular exit pathways, particularly for minorities in the United States who have...