The Legal Theory of #blacklivesmatter

One of the topics that deeply interests me is how social movements translate their agendas into legal doctrine.  How, for instance, do claims for reparations interact with legal doctrine -- what are the hurdles they face and how can they overcome those hurdles?  How did abolitionists advance an alternative jurisprudence of sentiment -- and also an empirically based legal theory -- to respond to proslavery law at the appellate and trial level?  How did the victims of the Tulsa riot, who were so shamefully and laughably abandoned by the legal system yet turn to it to ask for justice?  How did people like Charles Hamilton Houston and Karl Llewellyn convert the facts surrounding the brutality of Jim Crow into a movement -- such as the federal prosecution of lynchers? The road from protest over Jim Crow in the streets to triumph in the Supreme Court was a long one, to be sure.  It took a long time to move from the "great constitutional dream book" to Brown.  We needed those dreamers, from the veterans of World War I to W.E.B. DuBois, the people who nearly a century ago said in essence "black lives matter" and then plotted a political and legal strategy to get us there.  And just recently I finished reading an outstanding manuscript on the way that the Nullification movement influenced John Marshall to allow states extensive power in regulating private property.  All this has me thinking about the relationship of social and political movements to legal doctrine.

So naturally I'm interested in how #blacklivesmatter is going to translate its momentum in the legal arena.  Some pieces of this are straight-forward.  The demands of blacklivesmatter.com include more aggressive prosecution of those who kill African Americans and less aggressive policing of African American communities and of African American individuals.  A lot of this is aimed more at Congress, state legislatures, and local governments than at prosecutors and courts.

But I suspect we can sketch what a #blacklivesmatter jurisprudence would look like, too.  On the civil side I think it would involve relaxing the standards for a successful section 1983 suit.  I'm guessing that would cover a lot of the ground.  And on the criminal law side, I suspect that a lot of the agenda would relate to reduction in sentencing and to changes in criminal procedure that would restrict the fruit of searches and perhaps limit the opportunities for stops and arrests.  My friends who work in criminal law and procedure know infinitely more about the specifics than I do.  What really interests me here is to wonder about what the world might look like, in part because I'm guessing that this will be relevant to the 2016 presidential campaign.  And how that campaign plays out will shape the responses of judges and prosecutors (and of course have an important impact on the kinds of people who become federal judges and federal prosecutors).

The image is of a protest at UNC Law last January, courtesy of my colleague Tamar Birckhead.

Comments

[Charles Paul Hoffman]

I'd agree that a dramatic reappraisal of qualified immunity under s. 1983 is probably near the top of the list of legal outccomes associated with the Black Lives Matter movement. There's also a string of procedural reforms related to how police misconduct investigations/prosecutions are handled, including the demand for independent investigators instead of the cop's pals in the DA's office and the end of using grand juries as a way to whitewash decisions not to prosecute the police.

[Patrick S. O'Donnell]

Perhaps this movement will directly or indirectly result in further attention directed toward prosecutorial misconduct in this country, the structural dimensions of which can be addressed with procedural reforms (e.g., 'Model Rules of Professional Conduct, section 3.8 (d), the American Bar Association advocates that prosecutors be required to turn over all exculpatory evidence to the defense.' In brief, this means eliminating 'the materiality prong of Brady' and, as in some jurisdictions, 'allow[ing] defense attorneys access to law enforcement and prosecutors’ files so that defense attorneys can determine for themselves which items are exculpatory and useful to the defense case.) and legislation. See here for more information: http://www.religiousleftlaw.com/2015/08/mapping-the-dimensions-of-prosecutorial-misconduct-a-short-reading-guide-updated-.html

[jon]

"What really interests me here is to wonder about what the world might look like"

My guess would be late 1970's America. Vibrant in all of the positive and negative meanings of that word.