Law Commons^™

Judges Need To Exercise Their Responsibility To Require That Eligible Defendants Have Lawyers, Robert C. Boruchowitz

Faculty Articles

There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.

There is no question that …

Reinvigorating Commonality: Gender & Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Faculty Articles

The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, …

Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin

Faculty Articles

The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …

The Invention Of Asian Americans, Robert S. Chang

Faculty Articles

The essay begins by examining amicus briefs submitted in Fisher v. Texas by Asian American organizations in support of and in opposition to affirmative action. What does it mean when groups that purportedly protect, advance, and represent the interests of Asian Americans invoke the historical treatment of Asian Americans and present facts about Asian Americans but end up advocating for opposite outcomes? This Essay starts with the competing Asian American perspectives and assertions of authority expressed in these briefs to explore the theme of a Symposium at the UC Irvine School of Law, provocatively entitled, Reigniting Community: Strengthening the APA …

"So Closely Intertwined": Labor Interests And Racial Solidarity, Charlotte Garden, Nancy Leong

Faculty Articles

Conventional wisdom states that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as rightfully fraught with tension. Like much conventional wisdom, the narrative that unions and people of color are rivals is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests; this work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions improve the lives of both members and non-members of …

Drug Panics In The Twenty-First Century: Ecstasy, Prescription Drugs, And The Reframing Of The War On Drugs, Deborah Ahrens

Faculty Articles

The Supreme Court has failed to clarify this important procedural exception to the clear error standard. More than this, the Court has failed to explain why it refuses to apply independent judgment to all constitutional facts. The results of the differential treatment of these two legal concepts are: 1) Rule 52, and the Supreme Court’s approach to its constitutional fact exception is another type of denial of structural due process, preventing the legal norming of intentional discrimination jurisprudence; 2) institutional interests of doctrinal coherence and decisional accuracy are minimized in favor of reducing direct costs to the judicial system; 3) …

Under The Cover Of Gay Rights, Dean Spade

Faculty Articles

The article presents a U.S. Supreme Court case Perry v. Brown wherein the status of marriage is considered as unique and same sex couples are denied of marriage but granted the same rights and responsibilities as married one. It mentions the views of Stephen Reinhardt, a circuit judge on the United States Court of Appeals for the Ninth Circuit, that a granting rights and responsibilities is not sufficient substitute and mystique of marriage is the central issue related LGBT people.

Review Of Colin Dayan’S The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, Dean Spade

Faculty Articles

Professor Dean Spade reviews Colin Dayan’s The Law Is a White Dog: How Legal Rituals Make and Unmake Persons.

Transforming Domestic Violence Representation, Jane Stoever

Faculty Articles

The dominant theories used in the law to explain domestic violence, namely, the Power and Control Wheel and the Cycle of Violence, provide only limited insight into intimate partner abuse. Both theories focus exclusively on the abusive partner' wrongful actions, consistent with recent decades' concentration on criminalization, but fail to educate about the survivor's needs and efforts to end violence. The Stages of Change Model, conversely, reveals that domestic abuse survivors seek an end to relationship violence through a five-stage cyclical sequence and identifies the survivor's needs and actions at each stage. This critical information should inform the representation of …

Promoting Language Access In The Legal Academy, Gillian Dutton, Beth Lyon, Jayesh Rathod, Deborah Weissman

Faculty Articles

Since the 1960s, the United States government has paid increasing attention to the rights of language minorities and to the need for greater civic and political integration of these groups. With the passage of the Civil Rights Act of 1964, the issuance of Executive Orders, and intervention by the federal judiciary, progress has been made in the realm of language access. State and local courts have likewise taken steps (albeit imperfectly) to provide interpretation and translation assistance to Limited English Proficient persons. Most recently, responding to both lack of services and inconsistent practices, the American Bar Association has set out …

Cheaper Than A Slave: Indentured Labor, Colonialism And Capitalism, Tayyab Mahmud

Faculty Articles

The construct of free wage-labor, envisaged as consensual sale of labor-power by an autonomous and unencumbered individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism. However, this conceptual ensemble is an instance, yet again, of a particular masquerading as the universal – Europe’s autobiography passing for world history. It also underscores the divergence between mythologies and historical operations of capitalism. This article takes up the deployment of indentured labor from colonial India in plantation colonies across the globe for over a …

Preliminary Report On Race And Washington’S Criminal Justice System, Robert S. Chang

Faculty Articles

For this Report, the Research Working Group reviewed evidence on disproportionality in Washington’s criminal justice system and considered whether crime commission rates accounted for this disproportionality. They found that crime commission rates by race and ethnicity are largely unknown and perhaps unknowable, but that some researchers simply take arrest rates as good proxies for underlying commission rates for all crimes. They found that use of arrest rates likely overstates black crime commission rates for several reasons. But even if arrest rates are used as a proxy for underlying crime commission rates, the extent of racial disproportionality is not explained by …

Four Reservations On Civil Rights Reasoning By Analogy: The Case Of Latinos And Other Nonblack Groups, Richard Delgado

Faculty Articles

The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a racially discriminatory immigration system. Asian Americans suffered exclusion, wartime internment, and discriminatory labor laws. Middle Eastern people suffer from suspicion that they are terrorists. Blacks suffered slavery and Jim Crow.

Yet our system of civil rights derives, in large part, from the experience of only Blacks, and aims to redress a single, momentous harm, namely slavery and its lingering effects. This is particularly …

En Paz Descanse: Remembering Keith Aoki’S Contributions Toward Latina/O Equality, Steven W. Bender

Faculty Articles

Part of the forthcoming University of Oregon Law Review tribute to the scholarship of the late Professor Keith Aoki (1955-2011), this article situates Keith’s engagement of Latina/o policy issues within his scholarly identity and legacy. Although best remembered for his renowned contributions in the fields of intellectual property, property law, and Asian American jurisprudence, Keith wrote extensively on Latina/o issues in pursuit of equality of treatment. As addressed in the article, Keith’s notable advocacy on behalf of Latinas/os includes the significance of political representation as a strategy for social change and his innovative proposals for regional formulation of immigration policy.

Gringo Alley, Steven W. Bender

Faculty Articles

As a tribute to the late Professor Keith Aoki, this piece engages an uncompleted collaboration with Professor Aoki sketching through art and words a profoundly dystopian immigration nightmare centered in the Southwestern United States. In detailing the plot and themes of the borderlands gauntlet of "Gringo Alley," the article confronts some of the disturbing recent developments in immigration policy that approach or match the horrors imagined in fictional Gringo Alley. Finally, the article draws on science fiction influence and demographic reality to suggest a frightening future for all U.S. residents -- the prospect of economic collapse in a landscape of …

Keith Aoki’S Theory Of Racial Microclimes, Robert S. Chang

Faculty Articles

No abstract provided.

Supercolleague, Margaret Chon

Faculty Articles

This memorial tribute to the late Keith Aoki traces the impact of his overlapping activities as an artist, warrior, and mentor, particularly in the area of Asian-American jurisprudence.

Centennial Reflections On The California Law Review'S Scholarship On Race: The Structure Of Civil Rights Thought, Richard Delgado

Faculty Articles

The author reviews one hundred years of the California Law Review's rich body of scholarship on race and civil rights in an effort to discern its general direction and contours. Discerning two broad paradigms--a black-white binary of race and a liberty-equality divide--he notes that the two not only have been emerging in roughly the same period but are beginning to occupy the same territory. After describing the two paradigms and explaining their origin and operation, he puts forward a prediction for what their convergence may portend for the future of civil rights thought.

Naim V. Naim, Richard Delgado

Faculty Articles

Part of a law review symposium on the worst Supreme Court cases, this essay nominates Naim v. Naim, in which the Court declined to review a Virginia antimiscegenation law, postponing action in this area for over a dozen years. This article argues that the Court's reluctance to enter this arena was unfortunate, short-sighted, and cruel; and that we might be a different nation if the Supreme Court had been less concerned about appearances and more about doing the right thing in 1955.

Diversity And The Virtual Workplace: Performance Identity And Shifting Boundaries Of Workplace Engagement, Natasha T. Martin

Faculty Articles

This article explores the meaning of workplace discrimination where reality meets the imaginary world in virtual work settings. Using a more recent development in the realm of virtual work--workplace avatars--the article considers the impact on law of virtual performance identity by workers where appearances can be altered in virtual reality.

Current protected-class approaches to antidiscrimination law have not served as the antidote to workplace bias and exclusion. Thus, the article investigates whether avatar technology holds promise for facilitating greater inclusion of marginalized workers in the contemporary workplace. Does this mode of virtual work serve as a platform for diversity or …

Reframing Roe: Property Over Privacy, Becca Rausch

Faculty Articles

Roe v. Wade has received much criticism from both sides of the political spectrum. These critiques diverge divisively but for one commonality. Specifically, commentators from both the pro- and anti-choice camps have expressed concern about the absence of an express constitutional right to privacy, upon which the Supreme Court in Roe based its finding of a "fundamental" right to abortion. This lack of express constitutional provision renders the Roe decision, and its resulting reproductive rights, vulnerable. Further, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or governmental support for accessing abortion services. …

American Skin: Dispensing With Colorblindness And Critical Mass In Affirmative Action, Deirdre Bowen

Faculty Articles

This exploratory empirical work examines whether students of color enjoy the benefits articulated by the U.S. Supreme Court in the Grutter decision that rationalized the continuation of affirmative action based on diversity interests. Specifically, the Court stated that affirmative action was permissible because students of all backgrounds would increase their racial understanding and decrease their racial stereotyping of minorities. Neither side was happy with the decision—both skeptical that such benefits could transpire for minority students. Yet, in the heat of continuing debate, neither group has empirical support for their arguments until now.

Using survey data of over 370 under-represented minority …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

Centering The Immigrant In The Inter/National Imagination (Part Iii): Aoki, Rawls, And Immigration, Robert S. Chang

Faculty Articles

Fifteen years ago, Keith Aoki and Professor Robert Chang published "Centering the Immigrant in the Inter/National Imagination" in an early LatCrit symposium. Fifteen years later Professor Chang uses the occasion of the current Symposium to revisit conversations with Keith about centering the immigrant in political theory, as he addresses the issue of immigration, the rights of immigrants, and what is to be our national self-conception. What follows is a sketch that shows how centering the immigrant exposes the inattention paid to the immigrant and the issue of immigration in social contract theory. It focuses on how the immigrant might be …

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

Faculty Articles

This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race-conscious admissions policies at the University of Texas at Austin ("UT"). The resolution proposed here addresses Justice Anthony Kennedy's concerns about race-conscious policies, but also preserves most of the Courts 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of "critical mass" and the scope of deference that courts give to universities) by focusing on a simple idea that permeates …

The Fred T. Korematsu Center For Law And Equality And Its Vision For Social Change, Robert S. Chang

Faculty Articles

The Fred T. Korematsu Center for Law and Equality at Seattle University School of Law takes its name and inspiration from Fred Korematsu. Entrusted with honoring and furthering his legacy, the Korematsu Center, although not speaking as or for him, constructs its identity through its activities as an actor in the legal community and more broadly in the public. The Korematsu Center is very self-consciously engaged in developing a distinct personality as a collective entity that exists not just as a collection of the individuals or projects within the center.

The Korematsu Center is constituted by its commitments, by what …

Latcrit Xv Symposium Afterword, Steven W. Bender, Francisco Valdes

Faculty Articles

In this afterword, the authors begin to sketch the kind of future that they imagine. This afterword starts with an overview account of the first fifteen years of LatCrit theory, community, and praxis. Then turns to a handful of highlights regarding current or new programmatic initiatives that LatCrit scholars have recently launched or plan imminently to launch-a quick survey intended to connect the past with the present before turning to the future. In the concluding part of this afterword, the authors lay out some of the basic parameters for the LatCritical future that they imagine and that they hope to …

Living History Interview With Richard Delgado & Jean Stefancic, Richard Delgado, Jean Stefancic

Faculty Articles

One of the unique features of Transnational Law and Contemporary Problems ("TLCP") is the publication of a "Living History Interview" with a person of international accomplishment and renown. The Living History Interview complements the symposium format of TLCP by blending theory and practice, thus giving a practical perspective to the questions examined in the symposium. The purpose of the Living History Interview is to invite the responses of a prominent international scholar, jurist, or politician-not to explore his or her professional point of view, but to gain insight into his or her personal perspectives as shaped by historical events in …

Meeting Across The River: Why Affirmative Action Needs Race And Class Diversity, Deirdre M. Bowen

Faculty Articles

This paper is a response to Richard Sander’s latest work challenging the notion that race based affirmative action is still relevant and demanding that institutions of higher education consider class based affirmative action. To support his thesis, Sander conducts an empirical study on who benefits from affirmative action.

This Article is divided into three sections, each containing a critique of Sander’s arguments and analysis. First, I briefly reframe and reiterate the history of race and ethnicity in affirmative action’s origins to directly confront the assumption that Sander makes about what affirmative action’s original purpose entailed. The goal of Part I …

What Comes After Gender?, Robert S. Chang

Faculty Articles

A conference paper about postracialism and the end of gender as a social category in the U.S. as of June 2011 is presented. It discusses the management of diversity and the multiplicity of gender formations, as well as gender's role in social identity and the incorporation of masculine and feminine personal traits.