
 The clamor for police reform in the United States has reached a fever pitch. The current debate has mainly centered around questions of police function: What functions should police perform, and how should they perform them to avoid injustice and unnecessary harm? This Article, in contrast, focuses on a central aspect of police culture—namely, how police envision their relationship to those policed. It exposes the vast reach of a deeply engrained “danger narrative” and demonstrates the disastrous consequences that this narrative has helped to bring about. Reinforced by police training, codified by courts, and broadly deployed, the danger narrative is an “us-versus-them” ideology that envisions “them”—all persons whom police are observing, investigating, detaining—as a lethal danger to “us”—law enforcement personnel. Structural and functional reforms have little hope of succeeding unless this toxic narrative can be displaced.

The Article first explains the content of the danger narrative and its centrality both to policing and the law of policing. It then scrutinizes the narrative, finding that its core claims about the perils of policing are substantially exaggerated. The Article further explains how, ironically, these exaggerated claims actually create danger that could otherwise be avoided, and thus serve as an illegitimate “bootstrapping” argument for uses of excessive force. More troublingly still, the purportedly empirical danger narrative embeds a previously unexamined and entirely untenable normative proposition: Namely, that it is better for scores of suspects to be unjustifiably injured or killed by police than for any police officer to be injured. 

The Article concludes with a call for a new narrative frame to address both the empirical and normative pitfalls of the danger narrative and to permit meaningful police reform to take root. Drawing on insights from communitarian theory, and from such fields as medicine and aviation, it proposes institutional reforms that would promote core values of professionalism, including the adoption of data-driven, evidence-based practices, while also undermining the danger narrative’s pernicious us-versus-them ideology by cultivating empathy and reimagining police-community partnerships. Ultimately, the prospect of better and safer policing hinges on the adoption of these and other measures to inculcate in police departments a more accurate depiction of the real risks of in-the-line-of-duty violence.

Boston College Law School Faculty Papers

Policing the Danger Narrative

In the aftermath of racial justice protests, the country has witnessed a wave of conservative anti-“critical race theory” (CRT) legislation. This essay argues that such legislation is best understood as the latest iteration of a long-standing reactionary political practice. This practice goes back a century to World War I and the 1920s. Then, as now, it was marked by two critical elements: an argument about national identity and a focus on public schools. In the early twentieth century, conservatives began systematically fusing ethno-racial claims about Anglo-European cultural distinctiveness with a self-consciously universal language of the United States as a uniquely free and equal society. They further contended that public schools were failing to adequately teach children in the nation’s true values and called for a series of school measures with uncanny resemblances to the present.

In exploring this pre-history of today’s attacks on public schools, the essay teases out why arguments akin to anti-“CRT” claims initially emerged and recur whenever there have been major flashpoints around cultural and national identity. It also highlights a seemingly paradoxical phenomenon: In the United States, the most prominent defenses of racial hierarchy and attacks on racial reform often speak in a “civic” and ostensibly universal register rather than in an “ethnic” nationalist one. This fact requires Americans to confront the embedded drawbacks of longstanding and taken-for-granted narratives of national purpose, narratives commonly invoked across the political spectrum.

Anti-"CRT," A Century Old Tradition

The editors of the JRE solicited short essays on the COVID‐19 pandemic from a group of scholars of religious ethics that reflected on how the field might help them make sense of the complex religious, cultural, ethical, and political implications of the pandemic, and on how the pandemic might shape the future of religious ethics. In her essay, Professor M. Cathleen Kaveny argues for the involvement of religious ethicists in making public health and other policy decisions. 

Religious Groups, the Government, and the Pandemic: The Missing Voice of Religious Ethicists

Elizabeth “Eliza” Harriot Barons O’Connor was the first woman public lecturer in the United States, as well as a promoter of ambitious female education. She was born in March 1749 to English parents, Benjamin Barons and Margaret Hardy Barons, in Lisbon, Portugal. She likely accompanied her father to New York when he served as secretary to Governor Sir Charles Hardy from 1756 to 1758. Beginning in 1759, she likely attended a French boarding school in Chelsea, England. She married John O’Connor, an Irish lawyer, on June 6, 1776, and spent the late 1770s and early 1780s in Dublin and London, where the O’Connors were exposed to transformative ideas about political and social expectations regarding women and other disenfranchised groups. In 1786, the O’Connors moved to New York City and Eliza Harriot O’Connor opened the first of several successful female academies that offered an ambitious academic program for young women. In early 1787, the O’Connors moved to Philadelphia, where Eliza Harriot O’Connor gave a series of public lectures at what would become the University of Pennsylvania. George Washington attended a lecture that she gave in May 1787, which helped to publicize her ideas about advanced female education and the ability of women to participate in intellectual life. Her presence in Philadelphia in the summer of 1787 may have influenced the gender-neutral language of the U.S. Constitution. O’Connor was obliged to follow her peripatetic husband down the Eastern Seaboard as he started and failed at several publishing ventures. She opened successful female academies in Alexandria, Georgetown, and Charleston and Columbia, South Carolina, where she resided until her death in 1811.

This article was originally published in <a href="https://encyclopediavirginia.org/entries/elizabeth-harriot-barons-oconnor-1749-1811/">Encyclopedia Virginia</a> and is licensed under <a href="https://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA 4.0</a>. 

Elizabeth Harriot Barons O’Connor (1749–1811)

In the library profession, and in the world as a whole, the experiences of trans and gender diverse people often go unnoticed, hidden, and ignored. But we are here. Trans and Gender Diverse Voices in Libraries is entirely written and edited by trans and gender diverse people involved in the field: its fifty-seven authors include workers from academic and public libraries, special collections and archives, and more; LIS students; and a few people who have left the library profession completely.

This book is not intended to be the definitive guide to trans and gender diverse experiences in libraries, but instead to start the conversation. It is our hope that this book will help trans and gender diverse people in libraries realize that they are not alone, and that their experiences are worth sharing.

This book also demonstrates some of the reality in a field that loves to think of itself as inclusive. From physical spaces to policies to interpersonal ignorance and bigotry, the experiences recounted in this book demonstrate that the library profession continues to fail its trans and gender diverse members over and over again. You cannot read these chapters and claim that Safe Zone stickers and “libraries are for everyone” signs have done the job. You cannot assume that everything is fine in your workplace because nobody has spoken out. You can no longer pretend that we don’t exist.

This chapter offers a personal reflection on being transgender and navigating the balance passing and disclosure while working at an academic law library.

CC BY-NC 4.0 Attribution-NonCommercial

Thirteen Books

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.

Dillon’s Rule is a rule in local government law holding that localities wield only the powers expressly granted to them by states and no others. In this Article, I suggest that this view rests on a misinterpretation of the Rule’s origins narrowly centered on nineteenth-century jurist John Forrest Dillon’s hostility toward local power and his faith in state power. I put Dillon’s Rule back into the historical path from which it emerged, the evolution of U.S. public debt and economic development in the nineteenth century. I argue that this new historical contextualization reveals that Dillon’s Rule also distributes public and private power.

Dillon and his Rule emerged during a critical moment in the evolution of U.S. public debt and economic development, after federal and state debt-financed economic-development projects failed, and localities took up the task. Iowa was the epicenter of local debt finance, and it was where Dillon, then a state court judge, saw a wave of defaults in the 1860s as evidence of cities’ inherent wastefulness and susceptibility to public corruption. Dillon believed, left to their own devices, cities and their mismanagement of debt would repeatedly deprive creditors and investors of their property. In response, Dillon authored the doctrine that would become known as his Rule. But Dillon did not give states the task of disciplining fiscally irresponsible cities. The Rule’s empowering of states was largely procedural. Dillon made cities fiscally powerless so that they could only borrow and spend in a narrow way that would convince municipal creditors that their debts would be repaid. This constraint on local power by private capital was at the core of the Rule’s design.

In closing, I explore the contemporary ramifications of the Rule’s distribution of public and private power. Today, in the name of attracting and shielding capital against city power as Dillon intended, the Rule shackles cities to a limited range of market-consented options with which to address shortages in local economic development, affordable housing, and climate change. Critically, these burdens fall disproportionately on people of color. I argue that seeing the Rule in this new light should impact how we view the project of revitalizing city power moving forward.

Unshackling Cities

There is a dire need for bail reform in the immigration detention system. Scholars have suggested a variety of recommendations to improve the manner in which immigration detention decisions are made. All of these recommendations have rested on the assumption that there is a finite pool of decisionmakers: Immigration and Customs Enforcement, the immigration judge, and, in certain cases, a federal district court judge deciding detention issues in habeas corpus proceedings. In this article, the author proposes the introduction of a new decisionmaker in the immigration detention system: the criminal court judge. This proposal is a JRAD redux—instead of a judicial recommendation against deportation (“JRAD”), as previously existed in immigration law, it is a judicial recommendation against immigration detention (“JRAID”). To provide a normative defense of this proposal, the article builds off of literature examining immigration detention as punishment, procedural justice, and the relationship between states and the federal government in immigration enforcement.

JRAD Redux: Judicial Recommendation Against Immigration Detention

Satisfying the demand for “climate justice” is a profound challenge, given the disconnect between the states and populations most vulnerable to climate impacts and those most responsible historically for producing the greatest share of GHG emissions. Likewise, there is a need to ensure equitable access to the technologies and other resources necessary for both mitigation and adaptation. Another point of contention is how quickly and comprehensively to act. While the fundamentals of climate science have been well-established for decades, there is ongoing debate over how urgently the world must respond. Even assuming a consensus for urgent action, there is the political difficulty of apportioning the arguably burdensome demands of emissions reductions, requiring certain jurisdictions and populaces to suffer short-term local economic costs in exchange for incompletely defined, long-term collective benefits.

This chapter describes and evaluates the most significant multilateral efforts to grapple with climate disruption. It focuses on the 1992 UN Framework Convention on Climate Change, and its key ancillary agreements—the 1997 Kyoto Protocol and the 2015 Paris Agreement. This analysis includes both multilateral developments and their parallel processes and legal constructs within the United States.

The Multilateral Climate Regime

Antitrust law regulates the consolidation and abuse of economic power. One of its core tasks is to ensure that market success is not rigged in favor of undeserving winners against excluded competitors at consumers’ and workers’ expense. But for their entire enforcement and doctrinal history, antitrust regulators and courts have built a legal infrastructure that assesses the exercise of economic power and its adverse effects as if that power and its effects were “color blind.” In fact, corporate concentration, firm dominance, and anticompetitive conduct not only contribute to structural racism, but the very tools regulators use to combat those harms can reinforce racial inequality and disparately impact people of color.

This Article is a framing project, providing a comprehensive overview of antitrust law’s relationship to racial inequality. Its goal is to identify the core problem areas and mechanisms by which antitrust has contributed to racial subordination in order to invite both a reckoning and suggestions for antiracist reforms. It first explains how firms’ dominance and anticompetitive conduct have rigged market access in ways that create and perpetuate racial inequality. It then situates a novel data set of antitrust cases addressing race since the passage of the Sherman Act within the broader antitrust canon to detail how antitrust enforcers’ and courts’ “color-blind” approach to competition concerns have not only ignored the realities of racial inequality but also reinforced them. Finally, it proposes a suite of reforms as first steps to integrating analysis of race into antitrust enforcement, from market definition and merger review analyses to assessments of the anticompetitive effects and procompetitive benefits of firm conduct.

Antitrust and Race

In 2010, Congress passed the Patient Protection and Affordable Care Act and its companion, the Health Care and Education Reconciliation Act (collectively, the Affordable Care Act, ACA, or Obamacare). President Obama signed the ACA into law on March 23, 2010. Within minutes, Florida and twelve more states filed a complaint that would ultimately result in the US Supreme Court’s first “Obamacare” decision: <i>National Federation of Independent Business (NFIB) v. Sebelius</i>. An unexpected 7–2 majority ruled that the ACA’s Medicaid expansion program exceeded Congress’ spending power because requiring states to either expand or lose all Medicaid funding was unconstitutionally coercive. Nevertheless, expansion could continue as an optional program that states could accept or reject without jeopardizing their pre-ACA Medicaid funding.

NFIB can be analyzed—and criticized—through any number of lenses including political philosophy, bioethics, constitutionalism, and more. A more fundamental criticism rests on the pragmatic concern that a majority of the justices have little understanding of—and a surprising lack of curiosity about—the lived experience of many Americans with the complex and fragmented market for health care. This is particularly troubling for women who have more to gain than their male counterparts from a reformed health care system, and more to lose should it falter. As Professor Elizabeth Weeks, writing as Justice Weeks, forcefully reminds us, women are disproportionately lower income, uninsured, and burdened by medical debt. Moreover, discriminatory practices by insurers have long disadvantaged women expressly by gender rating and limiting coverage for maternity care, and implicitly, for example, through preexisting condition exclusions. Thus, in her opinion concurring in part and dissenting in part, Weeks opines, Medicaid expansion and the individual mandate concern more than commerce, taxing and spending; at their core, they protect an individual’s civil rights to coverage and care. Weeks cites works by feminist legal theorists, including Martha Albertson Fineman and Catherine MacKinnon to support her arguments. Her civil rights analysis also evinces her feminist approach.

A remaining question with particular import for women is: What kind of care and coverage do these civil rights protect? Feminist thinking, implicit in the civil rights analysis of Weeks, assists in finding an answer.

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Policing the Danger Narrative

Anti-"CRT," A Century Old Tradition

Religious Groups, the Government, and the Pandemic: The Missing Voice of Religious Ethicists

Elizabeth Harriot Barons O’Connor (1749–1811)

Thirteen Books

Unshackling Cities

JRAD Redux: Judicial Recommendation Against Immigration Detention

The Multilateral Climate Regime

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.repo-96qggn{color:inherit;text-align:left;font-weight:500;line-height:2.3rem;font-size:1.8rem;overflow-wrap:break-word;-webkit-box-orient:vertical;display:-webkit-box;-webkit-line-clamp:4;overflow:hidden;hyphens:auto;}.repo-96qggn:hover{color:inherit;}Policing the Danger Narrative

Policing the Danger Narrative