Wade H. and Dores M. McCree Collegiate Professor of Law
Director, Civil Rights Litigation Clearinghouse
Civil Rights Litigation Clearinghouse
For a full list of publications and activities, please see the
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Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act (Prison Policy Initiative, Apr. 26, 2021) (with Andrea Fenster)
Link to appendix
: tables (html), data (excel and stata), replication code (stata), data notes (pdf)
Narrowing the Remedial Gap: Damages for Disability Discrimination in Outsourced Federal Programs, 88 U. Chi. L. Rev. Online (March 5, 2021)
to Online Law Review
In Memoriam: Justice Ruth Bader Ginsburg, 134 Harv. L. Rev. 882 (2021)
"Mapping the Iceberg: The Impact of Data Sources on the Study of District Courts," 17
J. Emp. Legal Stud. 466 (2020) (with Christina Boyd and Pauline Kim)
"Incrementalist vs. Maximalist Reform: Solitary Confinement Case Studies,"
115 Northwestern U .L. Rev.
; Technical appendix
Incarceration and the Law: Cases and Materials (West Publishing 2020) (with David Shapiro and Sheila Bedi).
"Accommodating Disabilities," in
Public Health Behind Bars—From Prisons to Communities (forthcoming 2021).
"The Civil Rights Litigation Clearinghouse: Origins and Goals,"
KULA: Knowledge Creation, Dissemination, and Preservation Studies (2018)
"The Constitutional Law of Incarceration, Reconfigured," 103 Cornell L. Rev. 357 (2018)
"Prisoners with Disabilities: Individualization and Integration," in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., October 2017)
"Trends in Prisoner Litigation, as the PLRA Aproaches 20," Correctional Law Reporter (February / March 2017)
"Anti-Incarcerative Remedies for Illegal Conditions of Confinement," 6 University of Miami Race & Social Justice Law Review 1 (2016)
"How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities,"
ACS Issue Brief (May 19, 2016)
"The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem," Annals of the American Academy of Political and Social Science 64:1 (March 2016)
Link (paywalled) | Link (late draft, free)
Entire Symposium Issue, on California's Criminal Justice Realignment:
Video (slides and audio) |
"No Reason To Blame Liberals (Or, The Unbearable Lightness of Perversity Arguments),"
The New Rambler Review (June 15, 2015) (reviewing
Naomi Murakawa, The First Civil Right: How Liberals Built Prison America).
PDF | Link
"Against Solitary Confinement: Jonah's Redemption and Our Need for Mercy," 16
Rutgers J. L. & Religion 345 (2015) (People of the Book Symposium)
"Stealth Advocacy Can (Sometimes) Change the World," 113
Mich. L. Rev. 897 (2015) (reviewing
Alison L. Gash, Below the Radar: How Silence Can Save Civil Rights).
"Trends in Prisoner Litigation, as the PLRA Enters Adulthood," 5 U.C. Irvine L. Rev. 153 (2015).
"Prisoners' Rights Lawyers' Strategies for Preserving the Role of the Courts," 69 U. Miami L. Rev. 519 (2015).
PDF | PDF via SSRN (draft)
"Intelligence Legalism and the National Security Agency's Civil Liberties Gap," 6 Harv. Nat'l Sec. J. 112 (2015).
PDF via SSRN
"The Equal Employment Opportunity Commission and Structural Reform of the American Workplace," 91 Wash. U. L. Rev. 1519 (2014).
PDF | PDF via SSRN
Replication Code - Figures and Tables
Replication Code - Statements in Text
"Offices of Goodness: Influence Without Authority In Federal Agencies," 36
Cardozo L. Rev. 53 (2014).
PDF | PDF via SSRN |
"Prison Segregation: Symposium Introduction and Preliminary Data on Racial Disparities," 18 Mich. J. Race & L. 241 (2013).
Abstract and PDF (including data note) via SSRN
"Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics," 48
Harv. Civ. Rghts-Civ. Lib. L. Rev. 165 (2013).
Abstract and PDF via SSRN | Appendix
"Women behind the Wheel: Gender and Transportation Law, 1960-1930," in Tracy A. Thomas & Tracey Jean Boisseau, eds.,
Feminist Legal History: Essays on Women and Law (2011).
"Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners," 47
Am. Crim. L. Rev. 1421 (2010).
"Against Secret Regulation: Why and How We Should End the Practical Obscurity of Injunctions and Consent Decrees," 59
DePaul L. Rev. 515 (2010).
"How Should We Study District Judge Decision-Making?” 29
Wash. U. J. Law & Pol'y 83 (2009) (with Pauline Kim, Christina Boyd, Andrew D. Martin).
“Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act,” 11
Penn. J. Const. Law 139 (2008) (with Giovanna Shay).
"Operationalizing Deterrence: Claims Management (in Hospitals, a Large Retailer, and Jails and Prisons),” 2
Journal of Tort Law, issue 1, article 1 (2008).
Link | PDF
"Jail Strip-Search Cases: Patterns and Participants," 71
Law & Contemp. Problems 65 (2008) (Symposium: Galanter-Influenced Scholars)
Link | PDF | Appendix.pdf |
"Hedonic Damages, Hedonic Adaptation, and Disability," 60
Vand. L. Rev. 745 (2007), with Sam Bagenstos.
PDF | Abstract and PDF via SSRN
"Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Clearinghouse" 75
U.M.K.C. L. Rev. 153 (2006) (Symposium: NARA Federal Civil Court Records: New Territory for Empirical, Historical, and Legal Research), with Denise Lieberman
PDF | Appendix
"What We Know and What We Should Know about American Trial Trends," 2006
J. Disp. Res. 35
PDF | Abstract and PDF via SSRN
"Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders," 81
N.Y.U. L. Rev. 550 (2006)
PDF | PDF via SSRN | Appendix
"Second Best Damage Action Deterrence," 55
DePaul L. Rev. 517 (2006) (Clifford Symposium)
PDF | Abstract and PDF via SSRN
Anne Morrison Piehl & Margo Schlanger, "Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates," 1
J. Empirical Legal Stud. 79 (2004).
Summary | PDF | Appendix
Theodore Eisenberg & Margo Schlanger, "The Reliability of the Administrative Office of the U.S. Courts Dasabase: An Initial Empirical Analysis," 78
Notre Dame L. Rev. 1455 (2003).
Summary | PDF
"Inmate Litigation," 116
Harv. L. Rev. 1555 (2003).
Summary | PDF | Appendix | Correspondence
"Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law," 45
St. Louis Univ. L.J. 769 (2001).
"Beyond the Hero Judge: Institutional Reform Litigation as Litigation. (Review Essay) 97
Mich. L. Rev. 1994 (1999).
Summary | PDF
"Injured Women before Common Law Courts, 1860-1930," 21
Harvard Women's L.J. 79 (1998).
I Was One of Justice Ginsburg's First Law Clerks. The Experience Shaped My Career and My Marriage, Time (Sept. 19, 2020).
The President and Immigration Law Series: The Urgent Need to Shrink Immigration Detention,
Just Security (Oct. 13, 2020)
The DOJ’s COVID-19 Nursing Home Inquiry Is Nakedly Corrupt,
Slate (Aug. 31, 2020) (with Sam Bagenstos)
Lomax v. Ortiz-Marquez, on SCOTUSblog: Opinion analysis:
Strike out (June 8, 2020); Argument analysis:
Does prejudice matter? (Feb. 27, 2020); Argument preview:
Calling (PLRA) strikes (Feb. 19, 2020)
"Let's pause Iraqi deportations,"
The Hill (July 24, 2019)
"What You Need to Know About the Crisis at the Border,"
Slate (June 24, 2019) (with Dahlia Lithwick)
"Where are the Jews",
Sh'ma Now (The Jewish Forward) (Sept. 28, 2018).
"Restoring Objectivity to the Constitutional Law of Incarceration",
ACS Issue Brief (Sept. 2018)
Podcast: RBG, Beyond Notorious,
CNN (Aug. 20, 2018) (A Higher Court: 1990s)
"Clerking for Ginsburg: The Equality Lessons",
Law360 (Aug. 1, 2018)
"You've heard the calls to #AbolishICE. Here's what that could mean",
Wash. Post Monkey Cage, with Seth Grossman (July 9, 2018)
"Here's how you can help fight family separation at the border: Lawyers, translators, donations, protest,
Slate", with Dahlia Lithwick (June 15, 2018)
Teachout: Civil Rights in the Trump Era, University of Michigan (June 2018)
Link to Youtube Videos
"Could this be the end of plenary power?"
SCOTUSBlog, July 14, 2017.
"Why the Trump Administration is Treating Immigration Detainees Like Criminals" (Q&A),
Mother Jones (June 8, 2018).
"This is what's really happening to kids at the border",
Wash. Post Monkey Cage, with Michelle Brane (May 30, 2018)
"Illegal Immigration and the Book of Ruth",
Tablet Magazine, May 26, 2017.
"Obama should finish what he started and end NSEERS,
The Hill", Dec. 6, 2016.
"Equality Matters in the National Security Context, Too",
ACSblog, Sept. 14, 2016
"Where Scalia's Vote Was Decisive",
Prospect.org, Feb. 15, 2016
"Class-Action Suit Brings Sweeping Changes to Solitary Confinement in New York",
Prospect.org, Dec. 23, 2015 (with Amy Fettig)
Link | Solitary Reform Milestones (with Amy Fettig)
"Eight Principles for Reforming Solitary Confinement,"
American Prospect, Fall 2015 (with Amy Fettig)
Link | Related:
Solitary Reform Milestones
"With one decision, Obama and Lynch could reshape the criminal justice system," WashingtonPost.com, Aug. 3, 2015 (with Robert Ferguson & Judith Resnik)
"A Civil Rights Vision for Countering Violent Extremism,"
The Hill (Congress Blog), July 14, 2015
"The Declining Prisoner Litigation Docket,"
Alliance for Justice Blog, Feb. 25, 2015
"U.S. Intelligence Reforms Still Allow Plenty of Suspicionless Spying on Americans,"
JustSecurity.org, Feb. 13, 2015
"When is it Ok to Racially Profile?"
Dec. 18, 2014
"Intelligence Legalism and the Torture Report,"
JustSecurity.org, Dec. 17, 2014
"Infiltrate the NSA," Democracy (Issue #35, Winter 2015); Dec. 15, 2014 and TheAtlantic.com, Dec. 30, 2014
Democracy Link | PDF | The Atlantic Link
"A Civil Rights Lawyer Explains Why Obama's Immigration Order Is an Even Bigger Deal Than It Seems," TheNewRepublic.com, Nov. 25, 2014
"The Problem with Legalism in the Surveillance State,"
JustSecurity.org, Nov. 7, 2014
"A Cult of Rules: The Origins of Legalism in the Surveillance State,"
JustSecurity.org, Nov. 5, 2014
"Justice Alito Would Be Just Fine if Congress Undid Yesterday's Landmark Privacy Decision,"
TheNewRepublic.com, June 26, 2014
"The Bigger No Fly List Problem,"
JustSecurity.org, June 25, 2014
"Even Conservative Judges Can't Deny the Constitutional Logic of Same-Sex Marriage,"
The Daily Beast, May 18, 2014.
"In the Story of Jonah, an Urgent Lesson About the Dangers of Solitary Confinement,"
Tablet Magazine, Sept. 11, 2013.
ABA Criminal Justice Standards on the Treatment of Prisoners, Crim. Justice Mag., Summer 2010, at 14 (with Margaret Colgate Love & Carl Reynolds).
"Prison Litigation Reform Act Update," in The State of Criminal Justice, 2007-2008 (American Bar Association, Criminal Justice Section, Apr. 2008).
Testimony before the National Prison Rape Elimination Commission, The Role of Courts and Litigation in Regulating Prison and Jail Prevention of Sexual Violence and Misconduct (Dec. 6, 2007).
Testimony before the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, hearing on: "Review of the Prison Litigation Reform Act: A Decade of Reform or an Increase in Prison Abuses" (Nov. 8, 2007).
"The Political Economy of Prison and Jail Litigation,"
Prison Legal News, June 2007, at 1.
"Preserving the Rule of Law in America's Prisons: The Case for Amending the Prison Litigation Reform Act,"
An American Constitution Society Issue Brief, March 28, 2007, with Giovanna Shay
Amicus Brief for the ACLU and other prisoners' advocacy organizations, Woodford v. Ngo, 05-416 (U.S. Supreme Court).
"National Prison Commission Begins Work,"
Correctional Law Reporter, June/July 2005, at 1.
"Inmate Litigation: Results of a National Survey," National Institute of Corrections Large Jail Network Exchange, July 2003, at 1.
Summary | PDF | Survey Instruments