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Regina Austin

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I am a law professor emerita and the director of the Penn Program on Documentaries

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University of Central Florida

Microsoft Research

Richard Bellamy

University College London

Radhika Gajjala

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University of Oxford

Armando Marques-Guedes

UNL - New University of Lisbon

Birkbeck College, University of London

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Papers by Regina Austin

Sapphire Bound!

Routledge eBooks, May 15, 2017

Of False Teeth and Biting Critiques: Jones v. Fisher in Context

Touro law review, 1999

Digital Commons @ Touro Law Center, 1999 'RESTATEMENT (SECOND) OF TORTS § 892 (1983). This sectio... more Digital Commons @ Touro Law Center, 1999 'RESTATEMENT (SECOND) OF TORTS § 892 (1983). This section provides: (1) Consent is willingness in fact for conduct to occur, It may be manifested by action or inaction and need not be communicated to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. Id. 4 Id. at cmt. 9. ' Jones, 42 Wis. 2d at 212, 166 N.W.2d at 177.

The Saga of Pennsylvania’s 'Willie Horton' and the Commutation of Life Sentences in the Commonwealth

Social Science Research Network, 2020

is Penn sylvan ia's Willie Hor ton, on ly wor se! Willie Hor ton is the black Massach usetts life... more is Penn sylvan ia's Willie Hor ton, on ly wor se! Willie Hor ton is the black Massach usetts lifer wh o san k th e fortunes of 1988 Dem ocratic presiden tial n omin ee Gover n or Michael Dukakis. On h is tenth weekend fur lough , Hor ton abscon ded and woun d up in Maryland, wh ere h e raped a wh ite wom an, assaulted h er boyfr iend, an d made off with th e man's car . 1 Gover n or Dukakis did n ot cr eate the furlough program but supported it. Horton's crimes wer e n on eth eless used again st Dukakis first by Democratic pr esidential candidate Al Gor e and then by Lee Atwater, the political operative, an d Geor ge H.W. Bush , the Republican nominee for presiden t. Included in the independent PAC-sponsor ed political ad en titled "Weekend Passes," Horton's wild-lookin g ph otograph cam e to per son ify the threat black cr imin als posed to law-abidin g wh ite Amer ica. 2 Even "Willie" "play[ed] on racial ster eotypes: big, ugly, dum b, violent, black"--accordin g to Hor ton h imself, wh ose given n ame is William. 3 Now in h is late 60s, Hor ton remains incarcerated in Marylan d. Reginald McFadden is the black Pen nsylvan ia juven ile lifer wh ose 1994 com m utation sank the political ambition s of Lieutenant Govern or Mar k Sin gel. McFadden was con victed of the 1969 murder of Son ia Rosen baum, an elderly Ph iladelph ia woman, an d was senten ced to life with out th e possibility of par ole (or "LWOP"). In Pennsylvania, a person serving an LWOP sentence can achieve release from prison only through death or commutation of h er or h is sen ten ce to life with the possibility of par ole. In 1992, McFadden received a r ecom m en dation of com m utation by a 4-1 vote

Foreword (Documentaries & the Law Symposium Issue): Engaging Documentaries Seriously

A Dose of Color, A Dose of Reality: Contextualizing Intentional Tort Actions with Black Documentaries

Social Science Research Network, 2018

Most white Americans don't] know how Negroes live . . . . I'm sure they have nothing whatever aga... more Most white Americans don't] know how Negroes live . . . . I'm sure they have nothing whatever against Negroes, but that's really not the question . . . . The question is really a kind of apathy and ignorance, which is the price we pay for segregation. That's what segregation means. You don't know what's happening on the other side of the wall, because you don't want to know. 1 Legal education in the United States cannot adequately prepare tomorrow's lawyers without exposing them to the contexts that have given rise to the doctrines that are the bread and butter of daily classroom experience. Few tools are more effective in getting students to focus on the bigger picture than documentary films. Such films vividly display the impossibility of understanding legal clashes without appreciating how the disputants came to be in the relationships that produced the conflicts in the first instance. Here's why. We live in a society composed of multiple overlapping, variously fluid groups categorized by race, ethnicity, and nationality; sex, gender, and sexual orientation; socioeconomic class; age and abilities; religion; and geography. These groups constantly compete for economic, cultural, and political capital and the legal ability to protect their acquisitions. Amid these conflicts, the intentional torts 2 regime can operate as a source of freedom and protection or oppression and control. The intentional torts doctrines exacerbate, ameliorate, or resolve intergroup and intragroup clashes by clamping down on or leaving unconstrained private physical and emotional violence in ways that affect the distribution of resources. I Am Not Your Negro: A mAjor motIoN PIcture DIrecteD bY rAoul Peck from texts bY jAmes bAlDwIN 40 (Raoul Peck ed., 2017). The intentional torts include assault, battery, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, trespass to land, nuisance, defamation, invasion of privacy, and fraud, and defenses such as consent, duress, insanity, self-defense, defense of others, defense of property, necessity, and truth.

The Loving Story : Using a Documentary to Reconsider the Status of an Iconic Interracial Married Couple

Social Science Research Network, 2018

their children. In some locations, these rights are also being fought for by "ordinary people" ri... more their children. In some locations, these rights are also being fought for by "ordinary people" rising up and challenging racial and ethnic discrimination. 90 And it is with regard to this contemporary civil rights movement, and its ordinary people, that the Lovings might be looked upon as icons. 90. See id.

The Black Public Sphere and Mainstream Majoritarian Politics

Vanderbilt Law Review, Mar 1, 1997

Super Size Me' and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker

Social Science Research Network, Jun 10, 2007

School. 1. SUPER SIZE ME (The Con 2004) (exploring the health effects of fast food, including the... more

Documentation, Documentary, and the Law: What Should Be Made of Victim Impact Videos?

Social Science Research Network, Apr 18, 2010

When a majority of the Supreme Court rejected appeals in two capital cases involving the admissib... more When a majority of the Supreme Court rejected appeals in two capital cases involving the admissibility of victim impact videos, Justices John Paul Stevens and Stephen Breyer disagreed and wrote separately respecting the denials of certiorari. 1 The victim in one of the cases was Sara Weir, a nineteen-year-old young woman who was raped, stabbed with scissors twenty-nine times, and robbed by Douglas Kelly, a personal trainer who frequented the gym where she worked out. 2 Kelly left Weir's body under a bed in his girlfriend's apartment, where the body was discovered by the girlfriend's ten-year-old son. 3 Kelly was found guilty of first-degree murder and sentenced to death. During the penalty phase of Kelly's trial, the prosecution introduced a twenty-two-minute video entitled "Sara Nokomis Weir 1974-1993," which has been posted online. 4 The video consists of a

The Next ‘New Wave’: Law-Genre Documentaries, Lawyering in Support of the Creative Process, and Visual Legal Advocacy

Fordham Intellectual Property, Media & Entertainment Law Journal, 2006

Fewer Stays, Fewer Days: The Bronx Defenders and How Holistic Defense Reduces Mass Incarceration

In 2019, the Harvard Law Review published a quantitative study by researchers from the RAND Corpo... more In 2019, the Harvard Law Review published a quantitative study by researchers from the RAND Corporation and Penn Law’s Quattrone Center for the Fair Administration of Justice entitled “The Effects of Holistic Defense on Criminal Justice Outcomes” (click the Download button above to view the article). They compared with the traditional model of public defense with the holistic model practiced by the Bronx Defenders (BxD). Located in the South Bronx and staffed by criminal and civil lawyers, non-attorney advocates, social workers, and investigators, BxD practices an interdisciplinary form of lawyering that addresses the full range of issues low-income clients experience in connection with criminal charges. The researchers found that BxD’s holistic defense model reduced the number of clients serving custodial sentences by 16% and the length of custodial stays by 24% or 9.5 days without increasing recidivism or compromising public safety. Thus, the model has significant implications for reducing the harms of mass incarceration and the inefficient expenditure of tax dollars on corrections. The video Fewer Stays, Fewer Days goes behind the numbers to explain what holistic defense is, how it reduces unnecessary incarceration, and what other public defense organizations can do to achieve similar results

Women's Unequal Citizenship at the Border: Lessons From Three Nonfiction Films About the Women of Juárez

Cambridge University Press eBooks, Jul 31, 2009

While borders are thought of as fixed, formally-recognized, well-settled boundaries that are draw... more While borders are thought of as fixed, formally-recognized, well-settled boundaries that are drawn on maps, demarcated by barbed wire fences, and patrolled by soldiers or government agents, 3 current events indicate that the borders are actually more indeterminate and illusive. Contemporary American immigration regulation has both shifted U.S. borders well into the nation's interior and extended them way beyond the nation's territory. 4 Furthermore, "internal borders" dividing this country from others are popping up everywhere and triggering "border conflicts" all over. Believing themselves compelled to act because the federal government is incapable of doing so, state, county, and municipal governments are pursuing anti-immigrant and pro-immigrant policies that smack more of international relations than domestic affairs. These border control efforts are ensnaring documented immigrants and full-fledged citizens alike. Controversies roiling small towns like Farmingville, New York (where residents fought over an outdoor hiring site for day laborers) 5 and Hazleton, Pennsylvania (which is litigating in federal court its right to enforce local ordinances aimed at landlords who rent to "illegal" 3 The controversy surrounding the building of an actual fence along parts of the Mexican-American border is well known. Less attention has been paid to the controversy over the physical border between the United States and Canada. Herbert and Shirley-Ann Leu have erected a four-foot retaining wall that infringes the ten-foot corridor on either side of the 49th parallel that the International Border Commission maintains must be kept free of trees and other obstructions. David Bowermaster, Blaine Couple Fight to Retain Backyard Wall Near Canada Border, Seattle Times, Apr. 11, 2007, at B5. The Leus, who assert that they were free to build on their property because they were not given notice that the fence might violate the law, have brought suit in federal court in Seattle to enjoin the destruction of their wall. The Bush Administration agrees with the Leus and has attempted to fire the U.S. representative to the IBC,

The Insurance Classification Controversy

University of Pennsylvania Law Review, 1983

This Article explores the controversy that has arisen concerning the classification criteria used... more This Article explores the controversy that has arisen concerning the classification criteria used in the marketing, underwriting, and pricing of personal automobile and property insurance. Classification criteria are the factors insurance companies use to assign individual applicants to groups differing in riskiness for the purpose of determining whether insurance will be sold to them, and, if so, at what cost and on what terms. Age, sex, marital status, occupation, and place of residence are typical of the factors considered by insurance companies in distributing their product and its costs. As the use of such criteria exemplifies, the insurance classification process is tied to social stratification, the hierarchical grouping of individuals by status and role that is prevalent throughout American society. Social stratification provides a mechanism for allocating power, prestige, and material wealth among groups of individuals united by common values and behavior patterns. The classification of insureds by insurance companies is as vulnerable to attack as the hierarchical status grouping it parallels. The class-Copyright 0 1983 by Regina Austin t Assistant Professor of Law, University of Pennsylvania. B.A. 1970, University of Rochester; J.D. 1973, University of Pennsylvania.

The Problem of the Legitimacy of the Welfare State

University of Pennsylvania Law Review, Jun 1, 1982

Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress

Stanford Law Review, Nov 1, 1988

and th e T o rt of In tentional Infliction T he co nve ntional Wis do m is that , in th e workpla... more and th e T o rt of In tentional Infliction T he co nve ntional Wis do m is that , in th e workplace, abuse can b e a legitima te in strum e nt o f wo rk er comrol and an ap pro priate form of discipline .1 By "abus e" I mean treatmen t th a;: is inte ntionally emotionall y p<~inful, offensive, or in sult in g. Reb u kes an d r eprimands are the very sort of "be havior tha t o n e wou ld e xpe ct fr om a superior who is dissatisfied wi th his subordina te 's p erfo rman ce . " 2 Young black men may indee d b e offended by th e close surve ili ance and susp icious scrutiny they receive in the course of p erform ing lo w-paying, unskille d jobs, 3 but tha t is "their proble m." Fu rth erm ore, th e white-collar manager who suffe rs d es pair as a result of an un exp lained d enial of the "perks" of exalted sta tus is supposed to ge t the m es sage and seek employment els ewhe r e . 4 It is gen erally assumed th a t employers a nd e mployees alike agree that some amount of su ch ab us e is a p erfe ctl y n a tural, necessary, and defe nsibl e prer o gative of su peri o r rank. It assures obe dience to command . Bo ss e s d o o ccas io nall y ove rste p the bounds of what is consider e d reasonabl e supervision, bm, apa rt fro m contractually based unders tandings "' and statu tory en ti tlements to p rot ection from harassm en t,G th er e are few o bj ective stan dards o f " civility" b y which to judge ~ Ass ociate Profes sor o f La w, U ni ve r ~:itv of Pennsv!vani a. B. A., 1970. Unive rsit y of Rochesre r ; _I .D., !97 3, Univers it y o f Pcn nsyiv;n ia. I wan~ to tha nk a host o r' co lleagues. for the ir h elpful comme nts, guidance , ~m el ass ista nce , p articul arl y Mary Ada ms. Ma lcolm Cle ncknin , Ma rgaret de Lisser, Ch ris tin e Hancock, l\• 1a ri a Pa bo n, Le nn y Vin o kur, and mos t es pecia ll y Ge rry Fru g, who kept m e o n cou n c an d Derrick Bell , wh ose en co uragem e nt and suppo rt were con stant and essem i;; !. I. See e.g. , C. BRO DSKY, THE HA RASS ED V/ O R KER 6, 149-50 ( 19 76). 'l Ma gruder v. Selling Areas Marke ti ng , Inc., -139 F . Supp. 11 55, 1166 (N. D . Ill. 1977) 3. See gennallv Ande rson , Some Obsen •a!ions of Block !'outh Employment, in You TH EM PLO Y-~lE 1'T A i•ID Pu nu c PoucY (j4 (B. A n d<:Ti On 'k !. Sa •.v h ili eds. 1980) [h erein a ft e r Anderson. l'o ut h Employliien t]; Anderso n, Th r Soci{!! C:on!c.\•t of l'ou!h .Employment Prog-rams. in YoUTH EMPLOY -~! E1'T .-\:-JD TRA I ~I N G P Ro GRA~lS : Tm: YEl'I•'.-\ 'h: .•\R ::< 3-tS (l 085) [h e reinaft er Anderson , Employmen t Progu;ms ]. 4 _ See e.g., \Yell s v. Tho mas. ?iG9 F. St;np. 4 26 (E. D. Pa. i 983); Snvdcr v. Sun shin e Dairv 87 O r. Ap~ 2 15, 74 2 P. 2d 57 (1 98 7) . . . . , 5 . So me wo rkers are pm tected by bu rea ucrat ic sa feg uard s tha t are codifi ed in union con tra cts and empl oyee ha ndbo oks. Su lex t accompan yin g notes 2 19-236 infra. 6. See notes 46-5 1 infra and acco mpanyin g text. 1 l ' sexes, and female workers , bladz, brown 3.nd white, oll of wh o m occupy the lower tiers of the lab or fon~e . J. 3 T'o be sure, the sources o f the rna -lO.

Defamation Today: A Tool of Vindication or Vengeance?

This inaugural event in the Documentaries & the Law lecture series on Media and the First Ame... more This inaugural event in the Documentaries & the Law lecture series on Media and the First Amendment considered the impact on free speech of the expansive use of defamation as an offensive sword for litigating the truth of denials of misconduct that may not be directly challengeable and as a defensive shield for stifling lawsuits and potentially exacting revenge. The lecturer was Theodore J. Boutrous Jr., a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. He is global Co-Chair of the firm’s Litigation Group and previously led the firm’s appellate, crisis management, transnational litigation and media groups. The series is sponsored by Stephanie Abrutyn L\\u2791

“An Honest Living”: Street Vendors, Municipal Regulation, and the Black Public Sphere

Routledge eBooks, Nov 28, 2017

I, like many blacks, believe that an oppressed people should not be too law abiding, especially w... more I, like many blacks, believe that an oppressed people should not be too law abiding, especially where economics is concerned.' The economic system that has exploited us is not likely to be effectively exploited by us if we pay too much attention to the law. Moreover, for some poor blacks, breaking the law is not only a way of life; it is the only way to survive. Thus, what is characterized as economic deviance in the eyes of a majority of people may be viewed as economic resistance by a significant number of blacks. I am not asserting that blacks advocate anarchy, nor do I believe that they romanticize lawbreaking more than anyone else. Rather, I am simply arguing that many blacks rightly understand that the line between the legal and the illegal in the area of economic activity is ephemeral and that the determination of the precise point at which the line is drawn is a matter of political struggle. Accordingly, blacks need to be in the thick of the battle, fighting for their t Professor of Law, University of Pennsylvania. I want to thank the numerous persons who spoke to me on the subject of black vendors, particularly Wallace Ford, III, former Commissioner of Business Services of New York City; Hakim S. Hasan; Elijah Karriem; Robyn Millman, Esq.; Jade Powell; and Professor Paul Stoller. I also want to thank Keisha Ann Gray for her research assistance and Manthia Diawara for his support. 1. See generally Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769 (1992) (exploring positive and negative aspects of lawbreaking from perspective of various socioeconomic segments of black community).

Bad for Business": Contextual Analysis, Race Discrimination, and Fast Food

for their comments, suggestions, and encouragement and Gera Peoples, Donna Mancusi, and Kristal H... more

“A Nation of Thieves”: Consumption, Commerce, and the Black Public Sphere

Public Culture, 1994

Carl Husemoller Nightingale, On the Edge: A History of Poor Black Children and 7lteir American Dr... more Carl Husemoller Nightingale, On the Edge: A History of Poor Black Children and 7lteir American Dreams (New York: Basic Books, 1993), 125-26 (describing the suspicion the white author witnessed when he went shopping with black kids from his inner-city Philadelphia neighborhood); Ze'ev Chafets, Devil's Night: And Other Tales ofDetroit (New York: Random House, 1990), 33 (quoting a city neighborhood services official complaining that black children are required to walk with their hands at their sides or are allowed into stores one at a time); Joe R. Fagin, "The Continuing Significance of Race: Antiblack Discrimination in Public Places," American Sociological Review 56 (1991): 105-10 (describing blacks' responses to discrimination in places of public accommodations); Patricia Williams, "Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism," University of Miami Law Review 42 (1987): 128-29 (describing the author's reaction after being refused entry to a Benetton store); Diane, Negro Guinea Pig, "With Friends Like These. . .," Sassy, Sept. 1993, 84 (recounting the results of a experiment that sent a young black writer and her white friend as testers to an expensive jewelry store and an apartment for rent); Sara Rimer, "Shawn, 17: Running Past Many Obstacles," New York Times, 25 Apr. 1993, Al, LA7 (describing how a shop owner, seeing a neatly dressed young black man admiring a shirt in the window, closes the door and locks it); Lena Williams, "When Blacks Shop, Bias Often Accompanies Sale," New York Time, 30 Apr. 1991, A1 (describing a range of discriminatory treatment blacks encounter in retail establishments). 3. I am black. When referring to black people, I use the third person plural throughout, rather than the first person, not to distance myself from other blacks, but for grammatical consistency (many of the experiences I describe are not my own) and to avoid the suggestion that there are no divisions among blacks based on class, age, gender, sexual orientation, religion, country of origin or ancestry and geographical location. 4. Ian Ayres, "Fair Driving: Gender and Race Discrimination in Retail Car Negotiations," Harvard Law Review 104 (1991): 817-73.

Left at the Post: One Take on Blacks and Postmodernism

Law & Society Review, 1992

I f there is one thing that is not universal, it is the enjoyment of the material benefits of mod... more I f there is one thing that is not universal, it is the enjoyment of the material benefits of modernism. The postmodernists tend to confuse materialism (which is rampant) with material well-being (which is not). The liberating riches of postindustrial development have not entirely found their way into pockets of poverty in Anacostia, Bedford-Stuyvesant, or South Central Los Angeles. People in such enclaves are still struggling to capture a piece of modernity. If we identified with them instead of reflecting on reflecting, we would be reflecting on what can be done to help poor people lead safer and more secure lives.

Sapphire Bound!

Routledge eBooks, May 15, 2017

Of False Teeth and Biting Critiques: Jones v. Fisher in Context

Touro law review, 1999

Digital Commons @ Touro Law Center, 1999 'RESTATEMENT (SECOND) OF TORTS § 892 (1983). This sectio... more Digital Commons @ Touro Law Center, 1999 'RESTATEMENT (SECOND) OF TORTS § 892 (1983). This section provides: (1) Consent is willingness in fact for conduct to occur, It may be manifested by action or inaction and need not be communicated to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. Id. 4 Id. at cmt. 9. ' Jones, 42 Wis. 2d at 212, 166 N.W.2d at 177.

The Saga of Pennsylvania’s 'Willie Horton' and the Commutation of Life Sentences in the Commonwealth

Social Science Research Network, 2020

is Penn sylvan ia's Willie Hor ton, on ly wor se! Willie Hor ton is the black Massach usetts life... more is Penn sylvan ia's Willie Hor ton, on ly wor se! Willie Hor ton is the black Massach usetts lifer wh o san k th e fortunes of 1988 Dem ocratic presiden tial n omin ee Gover n or Michael Dukakis. On h is tenth weekend fur lough , Hor ton abscon ded and woun d up in Maryland, wh ere h e raped a wh ite wom an, assaulted h er boyfr iend, an d made off with th e man's car . 1 Gover n or Dukakis did n ot cr eate the furlough program but supported it. Horton's crimes wer e n on eth eless used again st Dukakis first by Democratic pr esidential candidate Al Gor e and then by Lee Atwater, the political operative, an d Geor ge H.W. Bush , the Republican nominee for presiden t. Included in the independent PAC-sponsor ed political ad en titled "Weekend Passes," Horton's wild-lookin g ph otograph cam e to per son ify the threat black cr imin als posed to law-abidin g wh ite Amer ica. 2 Even "Willie" "play[ed] on racial ster eotypes: big, ugly, dum b, violent, black"--accordin g to Hor ton h imself, wh ose given n ame is William. 3 Now in h is late 60s, Hor ton remains incarcerated in Marylan d. Reginald McFadden is the black Pen nsylvan ia juven ile lifer wh ose 1994 com m utation sank the political ambition s of Lieutenant Govern or Mar k Sin gel. McFadden was con victed of the 1969 murder of Son ia Rosen baum, an elderly Ph iladelph ia woman, an d was senten ced to life with out th e possibility of par ole (or "LWOP"). In Pennsylvania, a person serving an LWOP sentence can achieve release from prison only through death or commutation of h er or h is sen ten ce to life with the possibility of par ole. In 1992, McFadden received a r ecom m en dation of com m utation by a 4-1 vote

Foreword (Documentaries & the Law Symposium Issue): Engaging Documentaries Seriously

A Dose of Color, A Dose of Reality: Contextualizing Intentional Tort Actions with Black Documentaries

Social Science Research Network, 2018

Most white Americans don't] know how Negroes live . . . . I'm sure they have nothing whatever aga... more Most white Americans don't] know how Negroes live . . . . I'm sure they have nothing whatever against Negroes, but that's really not the question . . . . The question is really a kind of apathy and ignorance, which is the price we pay for segregation. That's what segregation means. You don't know what's happening on the other side of the wall, because you don't want to know. 1 Legal education in the United States cannot adequately prepare tomorrow's lawyers without exposing them to the contexts that have given rise to the doctrines that are the bread and butter of daily classroom experience. Few tools are more effective in getting students to focus on the bigger picture than documentary films. Such films vividly display the impossibility of understanding legal clashes without appreciating how the disputants came to be in the relationships that produced the conflicts in the first instance. Here's why. We live in a society composed of multiple overlapping, variously fluid groups categorized by race, ethnicity, and nationality; sex, gender, and sexual orientation; socioeconomic class; age and abilities; religion; and geography. These groups constantly compete for economic, cultural, and political capital and the legal ability to protect their acquisitions. Amid these conflicts, the intentional torts 2 regime can operate as a source of freedom and protection or oppression and control. The intentional torts doctrines exacerbate, ameliorate, or resolve intergroup and intragroup clashes by clamping down on or leaving unconstrained private physical and emotional violence in ways that affect the distribution of resources. I Am Not Your Negro: A mAjor motIoN PIcture DIrecteD bY rAoul Peck from texts bY jAmes bAlDwIN 40 (Raoul Peck ed., 2017). The intentional torts include assault, battery, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, trespass to land, nuisance, defamation, invasion of privacy, and fraud, and defenses such as consent, duress, insanity, self-defense, defense of others, defense of property, necessity, and truth.

The Loving Story : Using a Documentary to Reconsider the Status of an Iconic Interracial Married Couple

Social Science Research Network, 2018

their children. In some locations, these rights are also being fought for by "ordinary people" ri... more their children. In some locations, these rights are also being fought for by "ordinary people" rising up and challenging racial and ethnic discrimination. 90 And it is with regard to this contemporary civil rights movement, and its ordinary people, that the Lovings might be looked upon as icons. 90. See id.

The Black Public Sphere and Mainstream Majoritarian Politics

Vanderbilt Law Review, Mar 1, 1997

Super Size Me' and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker

Social Science Research Network, Jun 10, 2007

School. 1. SUPER SIZE ME (The Con 2004) (exploring the health effects of fast food, including the... more

Documentation, Documentary, and the Law: What Should Be Made of Victim Impact Videos?

Social Science Research Network, Apr 18, 2010

When a majority of the Supreme Court rejected appeals in two capital cases involving the admissib... more When a majority of the Supreme Court rejected appeals in two capital cases involving the admissibility of victim impact videos, Justices John Paul Stevens and Stephen Breyer disagreed and wrote separately respecting the denials of certiorari. 1 The victim in one of the cases was Sara Weir, a nineteen-year-old young woman who was raped, stabbed with scissors twenty-nine times, and robbed by Douglas Kelly, a personal trainer who frequented the gym where she worked out. 2 Kelly left Weir's body under a bed in his girlfriend's apartment, where the body was discovered by the girlfriend's ten-year-old son. 3 Kelly was found guilty of first-degree murder and sentenced to death. During the penalty phase of Kelly's trial, the prosecution introduced a twenty-two-minute video entitled "Sara Nokomis Weir 1974-1993," which has been posted online. 4 The video consists of a

The Next ‘New Wave’: Law-Genre Documentaries, Lawyering in Support of the Creative Process, and Visual Legal Advocacy

Fordham Intellectual Property, Media & Entertainment Law Journal, 2006

Fewer Stays, Fewer Days: The Bronx Defenders and How Holistic Defense Reduces Mass Incarceration

In 2019, the Harvard Law Review published a quantitative study by researchers from the RAND Corpo... more In 2019, the Harvard Law Review published a quantitative study by researchers from the RAND Corporation and Penn Law’s Quattrone Center for the Fair Administration of Justice entitled “The Effects of Holistic Defense on Criminal Justice Outcomes” (click the Download button above to view the article). They compared with the traditional model of public defense with the holistic model practiced by the Bronx Defenders (BxD). Located in the South Bronx and staffed by criminal and civil lawyers, non-attorney advocates, social workers, and investigators, BxD practices an interdisciplinary form of lawyering that addresses the full range of issues low-income clients experience in connection with criminal charges. The researchers found that BxD’s holistic defense model reduced the number of clients serving custodial sentences by 16% and the length of custodial stays by 24% or 9.5 days without increasing recidivism or compromising public safety. Thus, the model has significant implications for reducing the harms of mass incarceration and the inefficient expenditure of tax dollars on corrections. The video Fewer Stays, Fewer Days goes behind the numbers to explain what holistic defense is, how it reduces unnecessary incarceration, and what other public defense organizations can do to achieve similar results

Women's Unequal Citizenship at the Border: Lessons From Three Nonfiction Films About the Women of Juárez

Cambridge University Press eBooks, Jul 31, 2009

While borders are thought of as fixed, formally-recognized, well-settled boundaries that are draw... more While borders are thought of as fixed, formally-recognized, well-settled boundaries that are drawn on maps, demarcated by barbed wire fences, and patrolled by soldiers or government agents, 3 current events indicate that the borders are actually more indeterminate and illusive. Contemporary American immigration regulation has both shifted U.S. borders well into the nation's interior and extended them way beyond the nation's territory. 4 Furthermore, "internal borders" dividing this country from others are popping up everywhere and triggering "border conflicts" all over. Believing themselves compelled to act because the federal government is incapable of doing so, state, county, and municipal governments are pursuing anti-immigrant and pro-immigrant policies that smack more of international relations than domestic affairs. These border control efforts are ensnaring documented immigrants and full-fledged citizens alike. Controversies roiling small towns like Farmingville, New York (where residents fought over an outdoor hiring site for day laborers) 5 and Hazleton, Pennsylvania (which is litigating in federal court its right to enforce local ordinances aimed at landlords who rent to "illegal" 3 The controversy surrounding the building of an actual fence along parts of the Mexican-American border is well known. Less attention has been paid to the controversy over the physical border between the United States and Canada. Herbert and Shirley-Ann Leu have erected a four-foot retaining wall that infringes the ten-foot corridor on either side of the 49th parallel that the International Border Commission maintains must be kept free of trees and other obstructions. David Bowermaster, Blaine Couple Fight to Retain Backyard Wall Near Canada Border, Seattle Times, Apr. 11, 2007, at B5. The Leus, who assert that they were free to build on their property because they were not given notice that the fence might violate the law, have brought suit in federal court in Seattle to enjoin the destruction of their wall. The Bush Administration agrees with the Leus and has attempted to fire the U.S. representative to the IBC,

The Insurance Classification Controversy

University of Pennsylvania Law Review, 1983

This Article explores the controversy that has arisen concerning the classification criteria used... more This Article explores the controversy that has arisen concerning the classification criteria used in the marketing, underwriting, and pricing of personal automobile and property insurance. Classification criteria are the factors insurance companies use to assign individual applicants to groups differing in riskiness for the purpose of determining whether insurance will be sold to them, and, if so, at what cost and on what terms. Age, sex, marital status, occupation, and place of residence are typical of the factors considered by insurance companies in distributing their product and its costs. As the use of such criteria exemplifies, the insurance classification process is tied to social stratification, the hierarchical grouping of individuals by status and role that is prevalent throughout American society. Social stratification provides a mechanism for allocating power, prestige, and material wealth among groups of individuals united by common values and behavior patterns. The classification of insureds by insurance companies is as vulnerable to attack as the hierarchical status grouping it parallels. The class-Copyright 0 1983 by Regina Austin t Assistant Professor of Law, University of Pennsylvania. B.A. 1970, University of Rochester; J.D. 1973, University of Pennsylvania.

The Problem of the Legitimacy of the Welfare State

University of Pennsylvania Law Review, Jun 1, 1982

Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress

Stanford Law Review, Nov 1, 1988

and th e T o rt of In tentional Infliction T he co nve ntional Wis do m is that , in th e workpla... more and th e T o rt of In tentional Infliction T he co nve ntional Wis do m is that , in th e workplace, abuse can b e a legitima te in strum e nt o f wo rk er comrol and an ap pro priate form of discipline .1 By "abus e" I mean treatmen t th a;: is inte ntionally emotionall y p<~inful, offensive, or in sult in g. Reb u kes an d r eprimands are the very sort of "be havior tha t o n e wou ld e xpe ct fr om a superior who is dissatisfied wi th his subordina te 's p erfo rman ce . " 2 Young black men may indee d b e offended by th e close surve ili ance and susp icious scrutiny they receive in the course of p erform ing lo w-paying, unskille d jobs, 3 but tha t is "their proble m." Fu rth erm ore, th e white-collar manager who suffe rs d es pair as a result of an un exp lained d enial of the "perks" of exalted sta tus is supposed to ge t the m es sage and seek employment els ewhe r e . 4 It is gen erally assumed th a t employers a nd e mployees alike agree that some amount of su ch ab us e is a p erfe ctl y n a tural, necessary, and defe nsibl e prer o gative of su peri o r rank. It assures obe dience to command . Bo ss e s d o o ccas io nall y ove rste p the bounds of what is consider e d reasonabl e supervision, bm, apa rt fro m contractually based unders tandings "' and statu tory en ti tlements to p rot ection from harassm en t,G th er e are few o bj ective stan dards o f " civility" b y which to judge ~ Ass ociate Profes sor o f La w, U ni ve r ~:itv of Pennsv!vani a. B. A., 1970. Unive rsit y of Rochesre r ; _I .D., !97 3, Univers it y o f Pcn nsyiv;n ia. I wan~ to tha nk a host o r' co lleagues. for the ir h elpful comme nts, guidance , ~m el ass ista nce , p articul arl y Mary Ada ms. Ma lcolm Cle ncknin , Ma rgaret de Lisser, Ch ris tin e Hancock, l\• 1a ri a Pa bo n, Le nn y Vin o kur, and mos t es pecia ll y Ge rry Fru g, who kept m e o n cou n c an d Derrick Bell , wh ose en co uragem e nt and suppo rt were con stant and essem i;; !. I. See e.g. , C. BRO DSKY, THE HA RASS ED V/ O R KER 6, 149-50 ( 19 76). 'l Ma gruder v. Selling Areas Marke ti ng , Inc., -139 F . Supp. 11 55, 1166 (N. D . Ill. 1977) 3. See gennallv Ande rson , Some Obsen •a!ions of Block !'outh Employment, in You TH EM PLO Y-~lE 1'T A i•ID Pu nu c PoucY (j4 (B. A n d<:Ti On 'k !. Sa •.v h ili eds. 1980) [h erein a ft e r Anderson. l'o ut h Employliien t]; Anderso n, Th r Soci{!! C:on!c.\•t of l'ou!h .Employment Prog-rams. in YoUTH EMPLOY -~! E1'T .-\:-JD TRA I ~I N G P Ro GRA~lS : Tm: YEl'I•'.-\ 'h: .•\R ::< 3-tS (l 085) [h e reinaft er Anderson , Employmen t Progu;ms ]. 4 _ See e.g., \Yell s v. Tho mas. ?iG9 F. St;np. 4 26 (E. D. Pa. i 983); Snvdcr v. Sun shin e Dairv 87 O r. Ap~ 2 15, 74 2 P. 2d 57 (1 98 7) . . . . , 5 . So me wo rkers are pm tected by bu rea ucrat ic sa feg uard s tha t are codifi ed in union con tra cts and empl oyee ha ndbo oks. Su lex t accompan yin g notes 2 19-236 infra. 6. See notes 46-5 1 infra and acco mpanyin g text. 1 l ' sexes, and female workers , bladz, brown 3.nd white, oll of wh o m occupy the lower tiers of the lab or fon~e . J. 3 T'o be sure, the sources o f the rna -lO.

Defamation Today: A Tool of Vindication or Vengeance?

This inaugural event in the Documentaries & the Law lecture series on Media and the First Ame... more This inaugural event in the Documentaries & the Law lecture series on Media and the First Amendment considered the impact on free speech of the expansive use of defamation as an offensive sword for litigating the truth of denials of misconduct that may not be directly challengeable and as a defensive shield for stifling lawsuits and potentially exacting revenge. The lecturer was Theodore J. Boutrous Jr., a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. He is global Co-Chair of the firm’s Litigation Group and previously led the firm’s appellate, crisis management, transnational litigation and media groups. The series is sponsored by Stephanie Abrutyn L\\u2791

“An Honest Living”: Street Vendors, Municipal Regulation, and the Black Public Sphere

Routledge eBooks, Nov 28, 2017

I, like many blacks, believe that an oppressed people should not be too law abiding, especially w... more I, like many blacks, believe that an oppressed people should not be too law abiding, especially where economics is concerned.' The economic system that has exploited us is not likely to be effectively exploited by us if we pay too much attention to the law. Moreover, for some poor blacks, breaking the law is not only a way of life; it is the only way to survive. Thus, what is characterized as economic deviance in the eyes of a majority of people may be viewed as economic resistance by a significant number of blacks. I am not asserting that blacks advocate anarchy, nor do I believe that they romanticize lawbreaking more than anyone else. Rather, I am simply arguing that many blacks rightly understand that the line between the legal and the illegal in the area of economic activity is ephemeral and that the determination of the precise point at which the line is drawn is a matter of political struggle. Accordingly, blacks need to be in the thick of the battle, fighting for their t Professor of Law, University of Pennsylvania. I want to thank the numerous persons who spoke to me on the subject of black vendors, particularly Wallace Ford, III, former Commissioner of Business Services of New York City; Hakim S. Hasan; Elijah Karriem; Robyn Millman, Esq.; Jade Powell; and Professor Paul Stoller. I also want to thank Keisha Ann Gray for her research assistance and Manthia Diawara for his support. 1. See generally Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769 (1992) (exploring positive and negative aspects of lawbreaking from perspective of various socioeconomic segments of black community).

Bad for Business": Contextual Analysis, Race Discrimination, and Fast Food

for their comments, suggestions, and encouragement and Gera Peoples, Donna Mancusi, and Kristal H... more

“A Nation of Thieves”: Consumption, Commerce, and the Black Public Sphere

Public Culture, 1994

Carl Husemoller Nightingale, On the Edge: A History of Poor Black Children and 7lteir American Dr... more Carl Husemoller Nightingale, On the Edge: A History of Poor Black Children and 7lteir American Dreams (New York: Basic Books, 1993), 125-26 (describing the suspicion the white author witnessed when he went shopping with black kids from his inner-city Philadelphia neighborhood); Ze'ev Chafets, Devil's Night: And Other Tales ofDetroit (New York: Random House, 1990), 33 (quoting a city neighborhood services official complaining that black children are required to walk with their hands at their sides or are allowed into stores one at a time); Joe R. Fagin, "The Continuing Significance of Race: Antiblack Discrimination in Public Places," American Sociological Review 56 (1991): 105-10 (describing blacks' responses to discrimination in places of public accommodations); Patricia Williams, "Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism," University of Miami Law Review 42 (1987): 128-29 (describing the author's reaction after being refused entry to a Benetton store); Diane, Negro Guinea Pig, "With Friends Like These. . .," Sassy, Sept. 1993, 84 (recounting the results of a experiment that sent a young black writer and her white friend as testers to an expensive jewelry store and an apartment for rent); Sara Rimer, "Shawn, 17: Running Past Many Obstacles," New York Times, 25 Apr. 1993, Al, LA7 (describing how a shop owner, seeing a neatly dressed young black man admiring a shirt in the window, closes the door and locks it); Lena Williams, "When Blacks Shop, Bias Often Accompanies Sale," New York Time, 30 Apr. 1991, A1 (describing a range of discriminatory treatment blacks encounter in retail establishments). 3. I am black. When referring to black people, I use the third person plural throughout, rather than the first person, not to distance myself from other blacks, but for grammatical consistency (many of the experiences I describe are not my own) and to avoid the suggestion that there are no divisions among blacks based on class, age, gender, sexual orientation, religion, country of origin or ancestry and geographical location. 4. Ian Ayres, "Fair Driving: Gender and Race Discrimination in Retail Car Negotiations," Harvard Law Review 104 (1991): 817-73.

Left at the Post: One Take on Blacks and Postmodernism

Law & Society Review, 1992

I f there is one thing that is not universal, it is the enjoyment of the material benefits of mod... more I f there is one thing that is not universal, it is the enjoyment of the material benefits of modernism. The postmodernists tend to confuse materialism (which is rampant) with material well-being (which is not). The liberating riches of postindustrial development have not entirely found their way into pockets of poverty in Anacostia, Bedford-Stuyvesant, or South Central Los Angeles. People in such enclaves are still struggling to capture a piece of modernity. If we identified with them instead of reflecting on reflecting, we would be reflecting on what can be done to help poor people lead safer and more secure lives.