Exploring New Approaches to Unsettled Legal Questions

Tag: Civil Rights Law

“You’re Blocked”: Section 1983 Liability in the Age of Social Media

by Emma Becker*

With the advent of social media, a digital “town square” was created whereby elected officials and their constituents could interact in new, unforeseen ways. With the creation of this new space, however, came difficult First Amendment questions regarding digital access to officials via social media. When elected officials block constituents from their social media accounts are they acting under “color of state law,” thereby violating the First Amendment rights of those who are blocked? This Contribution argues that to determine whether an elected official is acting under “color of state law” when blocking constituents, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.

The “Independent State Legislature Theory”: A Disaster for Democracy

by Claire Bartholomew*

It has long been accepted that although state legislatures have inherent constitutional authority to set the “Times, Places and Manner of holding Elections,” other state judicial and executive officials, such as Governors, Secretaries of State, and state supreme courts, may alter or nullify duly enacted state election regulations if they violate that state’s constitution or the federal constitution. However, in recent years, some state legislatures have argued that their authority over state election regulations is absolute and untouchable by non-legislative state officials, promulgating what they have termed the “independent state legislature theory.” This Contribution argues that this theory must be fully repudiated; to protect our democracy from authoritarian rule, non-legislative state officials must be allowed to alter or nullify state election regulations if they violate their state or the federal constitution.

Preserving the Bivens Doctrine in the Fourth Amendment Context

by Tina LaRitz*

The Bivens doctrine allows plaintiffs who suffer constitutional violations at the hands of federal officers to claim monetary damages from federal courts, absent the statutory recognition of such a right. Recent jurisprudence has increasingly sought to limit this right in a show of judicial conservatism at the expense of deserving plaintiffs. This Contribution argues that the Bivens doctrine must be preserved broadly within the Fourth Amendment unreasonable search context.

Solitary Confinement Imposed in Response to the COVID-19 Pandemic Entitles Incarcerated Individuals to Procedural Due Process

by Julia Leff*

After medical experts advised social distancing and quarantining in response to the COVID-19 pandemic, many prisons assigned incarcerated persons to solitary confinement. This situation raises the question of whether an incarcerated individual is entitled to due process when they are placed in indefinite solitary confinement for their medical protection or to prevent the spread of a virus. In this Contribution, Julia Leff (’22) argues that the uncertainty regarding the length of the COVID-19 pandemic is sufficient to provide an incarcerated individual his right to procedural due process under the Fourteenth Amendment.

Evolving Standards of Decency: Solitary Confinement and the Eighth Amendment

by Jane M. Mahan* 

The Eighth Amendment prohibits cruel and unusual punishments. But proving an Eighth Amendment violation based on dangerous or unfit prison conditions is difficult because it requires a showing of subjective culpability on the part of prison officials. Federal courts have grown increasingly aware of the harmful nature of solitary confinement, particularly for juveniles, the mentally ill, and inmates with special medical needs. In this Contribution, Jane M. Mahan (’22) argues that the placement of vulnerable inmates in solitary confinement for a period exceeding fifteen consecutive days should be per se unconstitutional under the Eighth Amendment.

Ensuring Equality in Employment: A plaintiff alleging sexual orientation discrimination necessarily states a valid sex discrimination claim under Title VII

by Erika Murdoch*

Does a plaintiff alleging sexual orientation discrimination state a valid cause of action under Title VII of the Civil Rights Act of 1964? In this Contribution, Erika Murdock (’19) discusses whether sexual orientation discrimination is encompassed within the language of Title VII after recent EEOC and appellate court cases. Ultimately, this Contribution argues that Title VII’s prohibition of discrimination on the basis of “sex” inherently encompasses sexual orientation as a subset of the sex discrimination it bans.

Criminalizing Poverty: Designing Constitutionally Sound Inquiries into Defendants’ Ability to Pay their Fees and Fines

by Leah Romm*

What principles should courts keep in mind when inquiring into a defendant’s financial situation? In this Contribution, Leah Romm (’19) discusses the equal protection and due process challenges to incarcerating individuals because of their inability to pay fees or fines. Ultimately, this Contribution argues that courts are constitutionally required to inquire into and determine the financial status of individuals who fail to pay the fees or fines they owe.

Reaffirming the ADA’s Promise: Disability Accommodation During Arrests

by Andrew Breland*

How should police officers take into account the different needs of a person with disabilities during an arrest? In this Contribution, Andrew Breland (’18) examines the role of the Americans with Disabilities Act in governing arrests and investigations by police of persons with disabilities. Ultimately, this Contribution argues that the ADA’s reasonable accommodation requirement modifies what searches and seizures of individuals with disabilities are considered reasonable under the Fourth Amendment.

Rethinking Qualified Immunity: Making America Accountable Again

by Victoria del Rio-Guarner*

Should the qualified immunity doctrine be revisited to better allow civilians to sue government officials for violations of fundamental rights? In this Contribution, Victoria del Rio-Guarner (’18) discusses how the Supreme Court’s decisions in Harlow v. Fitzgerald and Pearson v. Callahan essentially rendered qualified immunity to Section 1983 claims unqualified. This Contribution argues that qualified immunity doctrine should be recalibrated in order to better fulfill its underlying purpose while not disabling Section 1983 claims.

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