麻豆传媒

How Should Progressives Think About the Courts in (and After) the Trump Era?
Abstract: Except for a few brief moments, our courts have been a regressive force.  They have enjoined labor and other protest actions.  They have invalidated progressive legislation. They have overriden progressive executive actions, while failing to check Executive Branch incursions on civil rights and civil liberties -- and indeed while developing an aggressive ""unitary executive"" theory that has expanded the President's power to evade congressional checks.  And they have made it much easier for litigants to challenge efforts that seek to overcome the legacy of racial subordination, or that subject religious-affiliated entities to the same rules as apply to the public generally, than to challenge racial discrimination against minorities or intentional suppression of dissenting opinions and independent civil society organizations.

These developments have increasingly moved progressives to return to an earlier critique of courts as dominantly regressive institutions (one that critical legal scholars had been articulating even in the immediate aftermath of the Warren Court).  Yet progressives cannot give up the reliance on courts.  In part that is because the courts seem to be the only entity willing to stand up to certain abuses of the Trump Administration (however weakly and incompletely they have done so).  That continued reliance has real costs in entrenching the view that it is up to the courts, and not political mobilization, to advance core constitutional commitments.  And that view will likely disserve progressive interests.  This presentation will seek to draw out how progressives should think about this tradeoff, both during and after the second Trump Administration.

“Burning-in” White (Christian Nationalist) Power: Reframing the Courts' Equal Protection and First Amendment Jurisprudence
Abstract: “Burning in” names a skill of darkroom photography printmaking, by which a printmaker skillfully overexposes part of the photographic paper that underlies the underexposed part of a photographic negative. I have conceptualized this printmaking skill as a method or technique of critical race praxis and will present on the concept and its application to part of the U.S. Supreme Courts' Equal Protection and First Amendment Jurisprudence, focusing on a line of opinions including, inter alia, Newman v. Piggie Park Enterprises, Inc. (1968), Regents of the University of California v. Bakke (1978), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and 303 Creative LLC v. Elenis (2023).

From Bakke through 303 Creative, the Court has promulgated a jurisprudence that does not expressly advance white power but nevertheless advances what contemporary discourse now cognizes as White Christian Nationalism. Drawing on recent histories of the rise of the White Power movement after the Vietnam War, I argue that the “burning in” concept enables a new understanding of the past several decades of Supreme Court jurisprudence. By “burning in” the White Power and White Christian Nationalism underlying this aspect of the Court's jurisprudence, my hope is that people of good will may turn against the indecent panderers who stimulate contemporary moral panics and reactionary populism and instead choose to act in solidarity with other working class peoples within—and—beyond the United States.

Teaching Constitutional law to International Students

Abstract forthcoming.

Developing Anti-Authoritarian Pedagogies for Teaching Constitutional Law
Abstract: The purpose of this paper/presentation/engagement is to provide strategies for anti-authoritarian pedagogies and pedagogical interventions to support the teaching of a new Constitutional Law. This new iteration of Constitutional Law must be informed by intentional and anti-racist  course design; rendered accessible in both content and structure; and made engaging through learning activities that prioritize advocacy and center the lived experiences of minoritized people. Through consultation with participants and the CLC Con Law & Pedagogy Committees, I will workshop and model how to turn their scholarly and course content into a comprehensive Con Law curriculum that meets the challenges of our time. 

Abstract: I am exploring how to teach constitutional law emphasizing the intersection of structure/powers and rights, and in this paper, would focus on a number of cases and doctrines that make this clear.  Tentatively, I am looking at standing doctrine and discussing Allen v. Wright (for race discrimination/equal protection law) and Food & Drug Administration v. Alliance for Hippocratic Medicine (substantive due due process/abortion); section 5, 14th amendment discussing United States v. Morrison (gender motivated violence/equal protection/due process), Board of Trustees of the University of Alabama v. Garett and Tennessee v. Lane (due process/equal protection/disabilities, Nevada Dept of Human Resources v. Hobbs and Coleman v. Court of Appeals of Maryland (gender discrimination/pregnancy/equal protection/due process); commerce clause discussing United States v. Morrison, Heart of Atlanta Motel v. United States and Katzenbach v. McClung (race and gender bias); foreign affairs powers/function discussing Trump v. Hawaii and Hamdi v. Rumsfeld.  One problem identified is frequently the way that most casebooks approach the material is to deal with the structure/power questions first before students have studied more explicit protections, which makes it difficult for students to understand the impact that these doctrines might have on the underlying legal claims.  Similarly, it is unlikely that students will grasp how limits recognized under section 5 of the Fourteenth Amendment might impact the development of the law that affects race, gender, disability and other discrimination. The paper would suggest possible strategies to give students a firmer grasp of how the modern Constitution as a whole may serve to protect vulnerable populations (individuals).

The Great White Lie and Campus Free Speech
Abstract: The Trump administration has launched the most successful assault on higher education that the United States has witnessed since the McCarthyism era of the mid-twentieth. The assault builds on the earlier campaign of Trump and the well-resourced network of far-right institutions to censor discussions of race and gender and to ban DEI - diversity, equity and inclusion - practices.  The assault proceeds on the basis of the Great White Lie and the cynical employment of civil rights laws and equal protection concerns to trump(?) free speech. And it masks massive greed.  What is to be done? 

Title VII at the Whim of the Executive: The Constitutional Risks of Presidential Discretion in Civil Rights Enforcement
Abstract: The enforcement of Title VII has become increasingly unstable, shifting dramatically with each presidential administration. While the statutory text remains unchanged, executive orders, EEOC guidance, and discretionary agency enforcement have significantly shaped how workplace protections are applied. These fluctuations raise constitutional concerns under the Take Care Clause and separation of powers principles, as they suggest that executive discretion is functioning as a means of reinterpreting rather than merely enforcing the law.

This paper critiques the role of executive power in shaping Title VII enforcement and its implications for constitutional law. Recent administrations have used executive authority to expand or restrict race-conscious remedial measures under Title VII, contributing to legal uncertainty and instability. The first Trump administration shifted EEOC priorities away from enforcing race-conscious affirmative action policies, while the Biden administration reaffirmed DEI initiatives as lawful under Title VII. The current Trump administration has again shifted course, rescinding Executive Order 11246 and intensifying scrutiny of DEI programs. These shifts expose a fundamental question: can the president, through enforcement discretion alone, redefine civil rights protections without congressional approval?

This paper will contribute to constitutional law pedagogy by highlighting the limitations of traditional approaches to teaching executive power and separation of powers. Constitutional law courses often focus on landmark cases regarding judicial checks on executive action but fail to fully examine how presidential discretion shapes civil rights enforcement. This paper proposes an alternative pedagogical framework that incorporates executive discretion in Title VII enforcement as a case study in constitutional instability. It integrates insights from Critical Race Theory and Law & Political Economy to analyze the racial and economic consequences of shifting executive interpretations of anti-discrimination law. By expanding constitutional law pedagogy beyond judicial review to include legislative and grassroots constraints on executive power, this approach encourages students to critically engage with how presidential discretion impacts workplace equity and civil rights enforcement.

Executive Authority and the War Powers Act
Abstract: It is striking how much power Presidents have to start wars.  From early times to the present, Presidents have been able to begin wars without any declaration of war, with minimal public support (Vietnam, Afghanistan), and based on false and misleading premises(Iraq).  Americans, and disproportionately people of color, have lost their lives in the service of dubious causes and false premises held by Presidents and their political parties.  There is no effective check on this power, since Congress tends routinely to approve such wars but without a formal declaration of war.

Congress does not function as a check, and neither do the courts.  Federal courts routinely decide that wars are "political questions" that they will not review.  There has been little or no exploration of the costs of the lack of judicial review with regard to war-making.  The courts could supply a check on this Presidential power by examining the alleged justifications for a war and deciding whether the war is valid based on principles regarding just war.  Instead the courts claim that they lack criteria for decision and that there is potential for embarrassment (for whom, the President or the courts?) and conflicting conclusions about the validity of a war.  I would argue that the embarrassment and conflicting conclusions are exactly what the Court should be generating in the case of an unjust war.  And though courts don't have power to restrict the President, they can influence popular and Congressional support(or not) for a war, which could make a difference.  Rather than bow out entirely, courts should weigh in and act as a potential check on the vast and lethal warmaking power.

The Professor's Public Speech (Tentative title)
Abstract: The Pickering/Connick/Garcetti trilogy of cases teaches that employees in the public sector have limited First Amendment speech protections, but that these protections are strongest when a public-sector employee speaks out as a private citizen on matters of public concern. Likewise, the professional norms of academic freedom highlight the importance of free exploration and research within one’s subject-matter expertise. But what happens when one's subject-matter expertise is in a matter of public concern? For instance, what happens when your subject matter happens to be the constitutional protections for public-sector employees and you yourself are a public-sector employee (academic) at a state institution now forced to implement the most controversial legislative interventions on university activities in decades? Presumptively, it is here where both constitutional and professional freedoms should work together to provide the most employment and speech protections. However, this has yet to be the case. Likewise, there are other factors—such as the forum of speech, proper disclaimers, an underlying balancing of state interests recalibrated for the present times, and political efforts to review “tenure”—that have recently added new levels of complexity to the constitution's already muddled relationship to academic freedom. 

This paper will explore the intersection of academic freedom and the First Amendment's speech protections of professors at public institutions. It builds upon the knowledge I accumulated (somewhat involuntarily, following the passage of Senate Billl 1 in Ohio) during the past academic year teaching both Constitutional Law and Employment Law, and within this limited sphere of professor speech, it examines how constitutional doctrine should incorporate academic freedom considerations into the Pickering, Connick, and Garcetti analyses? While not fully formed yet, I’d like to present this as a sort of “Pickering with Bite” test, where I suggests that private citizens can speak on matters of public concern, and their perspective as subject-matter experts should grant them more speech protections, not less, because of a tangential institutional affiliation."

Integrating CRT Principles into a required Con Law Course to encourage critical thinking in a broad cross-section of ideologically diverse students
Abstract: My proposed contribution would not be tied to a specific agenda topic, but would share (and open to critique and refinement) my approach to teaching a required 2-semester Con Law course to an ideologically diverse student body with the aim to 1) integrate CRT principles in how materials are presented; and 2) incentivize critical thinking about Con Law (and law generally) in a wide cross-section of students. This approach is grounded in my conviction that a traditional approach focused primarily on coverage and bar-prep often leads to shallow historicization and limited student skills in doctrinal critique

While difficult to summarize in 250 words, I try to incorporate a CRT approach via historicizing and “revisionist history” (structurally by starting each semester with multiple days on constitutional history; substantively by assigning materials that encourage students to see this history more from a critical, rather than a linear progress angle); and by introducing students to critical theory concepts such as differential racialization, structural racism, a clear definition of white supremacy and multiple opportunities to see its operation in constitutional interpretation, different conceptualizations of “racial equality,” etc. To incentivize students to deeply engage these critical dimensions, they are discussed in class throughout the year and one part of my exams requires students to develop a personal view on important theoretical debates and support their arguments in reliance on constitutional history and covered concepts.

The False Promise of Progressive Originalism
Abstract: As the conservative-dominated Supreme Court continues to accrue its power, commentators on both the political right and left suggest that those pursuing progressive policy goals would do well to turn to originalist methodology. Many of the Justices on the Court purport to be originalists, and progressive originalist arguments are more likely to appeal to this otherwise tough crowd. Haven’t progressives heard that we’re all originalists now?

I argue that originalism’s appeal to progressives is largely illusory. Originalism is unlikely to make a difference before a Court controlled by a supermajority of conservative Justices who exercise discretion over the interpretive methodology employed in any given case. In instances where progressive originalism contradicts the Justices’ preferred outcomes the Justices can (and do) use methods other than originalism to reach those outcomes. Originalism is also far from a guarantee of success for progressives, given the existence of plenty of sordid historical laws, practices, and traditions.

Originalism isn’t entirely useless. It makes for effective advocacy, and originalist work can give ammunition to those hoping to argue before the Court using the Court’s own language. Originalist arguments by advocates may give cover for progressive results in those instances where the Court is inclined to do so. Still, progressives must remain aware of the limited benefits originalism has to offer. With these limitations in mind, progressives are likely better off advancing their policy goals in alternate forums."

Disability Rights Both Beyond and Within US Borders: The Devil-ish Details of Trump’s Executive Orders
Abstract: My contribution to this discussion centers on the effects and impacts of Trump II’s actions on people with disabilities, and strategies disabled people and their allies can use to fight Trump’s initiatives. Laws and legal norms surrounding accessibility, reasonable accommodation, and nondiscrimination purport to guarantee equal access to public services, including in education, employment, transportation and travel. Yet persistent failures in enforcement long before Trump’s second term—well documented in legal literature and media investigations alike—reveal that formal equality has not been matched by practical access.

But rather than improve in any way the situation of people with disabilities, the Trump administration has taken or proposed the following actions with serious impacts on people with disabilities.  They have rescinded 11 guidance documents related to the Americans with Disabilities Act, including those on accessible parking and hospital visitation policies, potentially leading to decreased compliance and accessibility.  This administration’s efforts to dismantle diversity, equity, and inclusion programs have also affected disability accommodations, raising concerns about reduced accessibility and support in federal agencies. In addition, Trump has planned to move special education oversight from the Department of Education to the Department of Health and Human Services. Advocates fear this could disrupt services for students with disabilities due to potential loss of expertise and focus, but at the very least it certainly infuses more confusion and indeterminacy in a notoriously difficult and critical realm for children with disabilities and their families.  In addition, during Trump II, delays in Head Start funding led to classroom closures and staff layoffs. Head Start provides essential early education and health services to low-income families, including those with disabled children.  The Trump administration is also proposing substantial reductions to Medicaid, vital for many with disabilities. A 2025 budget blueprint suggested cutting $800 billion over a decade, raising concerns about increased institutionalization and loss of independence for disabled individuals.  The status of the Affordable Care   Budget proposals aimed to reduce Supplemental Security Income (SSI) benefits for households with multiple disabled members, potentially impacting hundreds of thousands of children.  In addition, beyond US borders, USAID is no longer in a position to run its disability service programs, and the Department of State has announced that it will no longer include in its annual state reports information about violence or threats of violence targeting people with disabilities or involuntary or coercive medical practices.  The US is clearly voluntarily surrendering its leadership position in disability rights leadership internationally.

Persons with disabilities occupy the crosshairs of many of the law’s most difficult conceptual debates. They understand, often with lived urgency, the difference between rights and remedies. They know how judicial philosophies—whether oriented toward anti-subordination or anti-discrimination—shape the recognition and enforcement of their freedoms. And they experience, daily, how the gap between legal mandates and actual implementation can function as a quiet but profound form of exclusion. 

In US and international history, persons with disabilities have fought for recognition of their exclusion and the discrimination they have faced, and for legal remedies.  I am still working on the strategies which may be used, drawing from past legal successes and failures and the literature on transnational advocacy, and hope to present these and to learn from others’ presentations at the conference.

Constitutional Law: A Principled Approach

Abstract: The book project will center the Reconstructed Constitution of the 1860s and distinguish it from the 1789 Constitution, because the latter purposefully and substantially amends and supersedes the former. Its provisions intentionally were designed to follow up on the original commitment to becoming a more perfect Union, and duly are the Supreme Law today. With this proper focus, the history of the 1860s Amendments becomes central to knowledge and interpretation of the Constitution—and it is a history infused with liberatory and abolitionist intentions. For this core reason, the history and intentionality behind those amendments properly casts the result as the "Antisubordination Constitution." The centering and history of this Antisubordination Constitution in turn frames and grounds the crucial task of constitutional interpretation.

By contrast, originalist interpretations as practiced by the Supreme Court, with its misleading name, is ahistorical and/or historically dishonest, making the promised development of a more perfect union impracticable, if not legally impossible.  The book will explore the goals, legitimate sources and canons for a principled approach to constitutional interpretation.

•   (UC Irvine)
•   (Seattle University School of Law)
•   (Cleveland State University College of Law) 

The Critical Legal Collective (CLC) is a group of legal scholars representing some of the many intellectual formations affiliated with critical legal theory — including, Critical Race Theory, Asian American Legal Scholarship, ClassCrits, Critical Legal Studies, Feminist Legal Theory, eCRT, Indigenous Law and Policy, Jurisprudence of Distribution, LatCrit, Law & Political Economy, Third World Approaches to International Law, and more. CLC promotes a more inclusive, democratic, and just society through scholarship, teaching, and advocacy that reckons honestly with past and present structural oppression. CLC's mission is to build partnerships, projects and power to advance critical knowledge and action in education, in pursuit of the promise of multiracial democracy with equal justice for all.

CLC is soliciting paper abstracts from interested workshop participants. Abstracts are accepted through April 21, 2025. 

Abstracts should describe briefly the author's engagement with a critique of constitutional law doctrine, teaching materials and pedagogy that identifies shortcomings in the development and understanding of constitutional law. Authors are encouraged to brainstorm and develop alternative materials and insights to influence constitutional law pedagogy in the future in ways that enable professors and students to fully appreciate the complexity of constitutional law theory and practice through the lens of critical theory. 

Abstracts should be no more than 250 words. Your abstract should be submitted on or before April 21, 2025, using the quick form.

Workshop presentations may be considered for publication by the UCLA L. Rev. Discourse (maximum 10,000 words).