Volume 100, Number 4

Much of education law scholarship on school segregation has focused on majority-minority schools. Yet school segregation does not occur only in majority-minority schools, but also in so-called integrated schools: majority-white and Latine schools in which Black children are in the minority. What we know about segregation in these schools focuses on tracking, the practice of segregating Black students in classrooms according to ability, which has deleterious effects on Black children in schools where they are the minority. Outside of tracking, we have few firsthand accounts of integrated schools’ effects on these students.

In this Article, I present data obtained from in-depth interviews with ninety-five Black students and fifty Black parents. These students and parents moved from majority-Black schools to schools in which they were in the minority seeking the perceived academic benefits of an integrated school. Yet, integration and achieving better educational outcomes concern more than simple racial demographics of schools. In these interviews, students identify another avenue of in-school segregation: school policing. Black students in these integrated schools experience pervasive surveillance and punishment by school police in collaboration with other school officials. Rather than feeling truly integrated, these students feel both marginalized and unsafe in ways that undermine the academic benefits that integration is supposed to produce.

This Article does not merely contend that Black students are policed irrespective of the racial demographics of their schools. It also argues that scholars, policymakers, and lawyers need to be more attentive to student experiences in order to explicate how formally integrated institutions can nonetheless serve as domains of racial segregation. Policing affects schools’ institutional culture, reducing the benefits that were supposed to accompany racial integration. This reality suggests that the project of racial integration for Black students, a project that Brown v. Board of Education launched more than seventy years ago, may be even more illusory than we generally understand.

This Article develops a new framework for thinking about the place of race in Contracts. It argues that culture and context work in tandem in the form of “cultural scripts” to weave racial associations into texts where race is not explicitly identified. This suggests that the impact and influence of race in Contracts might have as much to do with the racialized stories that we tell about our consumer and commercial lives as it does with the racial identity of litigants.

To make this argument, this Article reconstructs the afterlives of one of Contracts’ most well-known cases, Williams v. Walker-Thomas Furniture Co. (1965). The case, now the foundation of unconscionability doctrine, pits Ora Lee Williams, a mother of seven living on welfare, against an exploitative furniture company. Although Williams’s race was not confirmed until 1997, students and teachers long before (and since) assumed that she was Black. This assumption stemmed from the ways in which casebooks talked about and framed Williams.

The Race Case in Contracts undertakes the first systematic analysis of Contracts casebooks—129 in total—to show how “cultural scripts” about urban poverty and welfare mothers tethered Williams to ideas about race generally, and Blackness specifically. In other words, stories told about and around Ora Lee Williams mattered as much as, if not more than, the fact of her racial identity. Williams illustrates that if we do not speak directly on the role of race in Contracts, these stories might speak for us.

In 2023, the Department of Justice published its first-ever report on demographic disparities in revocations of community supervision, a critical yet under-studied part of the federal criminal justice system. The report revealed extreme and systematic disparities affecting American Indian defendants. Compared to other groups, American Indians were more likely to have their supervision revoked, more likely to be revoked for non-criminal technical violations, and more likely to be sentenced to additional supervision after revocation. Although the report acknowledged these disparities, it did little to explain them.

In this Article, I provide the first legal analysis of community supervision in Indian Country, identifying three unique features that may contribute to higher rates of revocation for American Indian defendants. First, the federal government is the primary prosecutor of violent crimes in Indian Country, which creates a population of defendants who are more likely to have their supervision revoked. Second, American Indians tend to live in rural areas, where complying with the conditions of supervision is more difficult. Finally, the federal supervision system reflects a legacy of conquest that continues to reenact past episodes of discrimination, displacement, and destruction.

To reform Indian Country supervision, I argue that the federal government should recognize the inherent authority of Indian tribes to supervise tribal members living in tribal territory. Community supervision is a core part of tribal sovereignty, because it is not just a form of punishment, but also a vehicle for important social services. Recently, tribal governments have developed their own formal supervision programs that both incorporate tribal values and send fewer people to prison. By following the principles of tribal governance, community cohesion, and cultural respect, federal probation officials can promote better outcomes for Indian defendants and fuller autonomy for Indian tribes.

Certain provisions within environmental statutes, known as emergency action provisions, provide EPA administrators with the authority to take legal action when certain forms of pollution threaten public health. Of the six most prevalent environmental statutes with emergency action provisions, five have unique requirements for coordination with state and local authorities. These coordination requirements fit within a broader spectrum in environmental law of cooperative federalism, the concept of dividing responsibilities between central and regional authorities.

Drawing from case law, legislative history, canons of interpretation, and academic commentary, this Note highlights the inconsistent coordination requirements of the emergency action provisions—leading to confusion and delay for enforcement authorities—and shows there is scant normative justification for those differences. This Note also assesses what levels of coordination between federal and regional authorities are practically beneficial for agency attorneys and public health outcomes. Ultimately, this Note recommends standardization of the emergency action provisions, through legislative, judicial, and/or executive action, to capitalize on the benefits and mitigate the challenges of cooperative federalism.

Tens of thousands of people are involuntarily confined in a hospital each year in connection with their mental illness or disability. In response to misconduct by people who are civilly committed, hospitals often call the police, setting in motion a chain of events with devastating consequences for the person who is transferred to criminal custody. Despite the frequency with which it occurs, little research has explored this phenomenon. This Note aims to shed light on the practice and expose its tension with constitutional norms, using the Court’s decisions in City of Grants Pass v. Johnson and Robinson v. California as points of departure.

The First Amendment is a well-known bulwark against a government that might use its regulatory powers to silence speech based on the viewpoint of the speaker. The government speech doctrine extended those protections to the government itself, allowing the government to adopt its own viewpoint when it speaks on its own behalf. The result of the Court’s decision to extend First Amendment protections to the government is that the government can use the First Amendment as a shield when it uses viewpoint discriminatory regulation to coerce speakers into silence. The theorists and judges who created the government speech doctrine have argued that the democratic process and the other provisions of the Constitution would be strong enough to stop the government from abusing its speech powers. This Note, however, identifies a gaping hole in their doctrinal framework where low-visibility government speech meets the ambiguity of the coercion-persuasion line. At that critical point, neither the First Amendment, nor the other provisions of the Constitution, nor the democratic process can stop the leviathan’s inclination to silence dissent.

The multidistrict litigation (MDL) process allows the nationwide consolidation of cases that share certain factual issues. Mass tort claims are often consolidated as MDLs and eventually resolved through mass settlement due to individual issues of causation and defenses that prevent class certification. Before settlement, courts and parties often select a small subset of cases to be tried in ‘bellwether trials’ that are intended to provide information about remaining claims in the MDL, including the circumstances of individual plaintiffs and the theories of liability and causation. However, due to practical limitations on the total number of cases that can be tried and the lack of common issues that predominate, bellwether trials cannot be used as a comprehensive overview of the MDL without exposing parties to the risk of inadequate settlement, which is exacerbated when cases are selected by parties. This Note proposes that the role of bellwether trials in a mass tort MDL should be limited to estimation of the settlement amount, and that the cases should be a representative sample selected through statistical methods. Through a scheme that combines simulation with random and stratified sampling, bellwether trials can provide litigants with a high-quality estimate of the total settlement value, which can in turn be allocated among plaintiffs according to extraneous information obtained outside the courts.