"Quite simply, law is haunted by race, even when it doesn’t realize it. Allow me to go a step further. Much of our comfort with inequality generally—in terms of gender, class, wellbeing—is buttressed by our history of comfort with racial inequality.” papers.ssrn.com/sol3/papers.cf…
"And in this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it makes sense to begin with acknowledging how law schools continue to function as white spaces."
"In short, the end goal of this essay is to imagine the law school no longer as a white space (in terms of demographics, or what is taught, or how it is taught), but as a *white space* (as in a blank page, at once empty and full of possibilities)."
"More broadly, what would it mean to create a law school that is cosmopolitan and then some, a place where intellectual curiosity thrives, where change+challenge are celebrated,..& perhaps most importantly, where there is no need to tout inclusivity, bc everyone already belongs?"

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More from @bd_highsmith

10 Nov 20
This case is not over until it's over—and journalists should stop proclaiming certainty about future events that are not certain. In NFIB, Roberts (infamously) changed his vote months after oral arguments in response to public pressure. The comments are notable—but it's not over.
For more on Roberts' flip see pages 957-60 in my article: ssrn.com/abstract=31929…

I'm not just being cynical. I've written fairly extensively about the politics of the ACA cases—urging folks to take this challenge seriously from the beginning.

This is not over until it is over.
If Kav *votes* that the mandate is severable, I agree that’s the end of this. I don’t think they’ll resolve it on standing; I'd guess they strike the mandate (which is insane) but sever it, as hinted. But that is not certain right now, and won't be until the opinion is announced.
Read 6 tweets
10 Nov 20
I respectfully disagree. We’re in a situation where the only thing that can stop Republicans from pulling off this attempted authoritarian takeover is certain other *Republicans* (including on the courts) saying no. That outcome hasn’t been an open question before, but it is now.
The key point is that they don’t have to win these lawsuits in order to use these lawsuits to “win”—to hold onto power after Jan. The GOP legislatures in PA+MI could cite these cases to appoint their own electors. They’ve previously indicated that they would not, but they *could*
The question of what happens next in that scenario (or some other similar one) would eventually reach SCOTUS, which could decide it’s a political question. (They might even cynically cite Bush v Gore as negative precedent, a reason not to get involved.) It could go to the House
Read 7 tweets
9 Jul 20
I personally believe a SCOTUS empowered by judicial supremacy and comprised of justices appointed for life will inevitably tend to be—on average—a bad forum for progressives and marginalized groups, compared to political branches. The 15 years of Warren Court doesn’t change this.
Books have been written on this topic, and I have many thoughts on it. But one point: theories about courts' counter-majoritarian role tend to overlook implications of fact that protecting minority rights is not adjacent to political conflict; it is THE centrally contested issue.
And so the state of having a judiciary that protects minority rights in Time 1 is not some theoretical matter, but rather conditional on having elected, through the political process, the party that prioritizes those rights in Time 0. Indeed, that's the story of the Warren Court!
Read 5 tweets
5 Jun 20
Quick thread about deep frustrations w #8cantwait: It's not that these reforms are not good policy; they are.

Rather: they are SO PITIFULLY FAR from the structural reforms desperately needed, that efforts to channel the mass uprising into this list of demands SET BACK the cause.
We've been here before. After Ferguson, Obama asked a task force to develop recommendations to “strengthen community policing and trust among law enforcement officers & the communities they serve.” Its report largely avoided questioning the role police should have in our society.
As policy, procedural justice & institutional reforms—bias training, transparency requirements—aren't in conflict w divestment (in near term); stronger policies can be applied to a smaller policing infrastructure. As strategy, pushing those reforms now—as the answer—is dangerous.
Read 9 tweets

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