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Full-Text Articles in Law
Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins
Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins
Michigan Journal of Race and Law
In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine …
Barriers To The Ballot Box: Implicit Bias And Voting Rights In The 21st Century, Arusha Gordon, Ezra D. Rosenberg
Barriers To The Ballot Box: Implicit Bias And Voting Rights In The 21st Century, Arusha Gordon, Ezra D. Rosenberg
Michigan Journal of Race and Law
While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding …
Disparaging Trademarks: Who Matters, Jasmine Abdel-Khalik
Disparaging Trademarks: Who Matters, Jasmine Abdel-Khalik
Michigan Journal of Race and Law
For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the …
There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell
There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell
Michigan Journal of Race and Law
At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas —the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces—social media and employment where slurs and epithets …
Functionally Suspect: Reconceptualizing "Race" As A Suspect Classification, Lauren Sudeall Lucas
Functionally Suspect: Reconceptualizing "Race" As A Suspect Classification, Lauren Sudeall Lucas
Michigan Journal of Race and Law
In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For …
Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz
Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz
Michigan Journal of Race and Law
Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Michigan Journal of Race and Law
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …
Systemic Racial Bias And Rico's Application To Criminal Street And Prison Gangs, Jordan Blair Woods
Systemic Racial Bias And Rico's Application To Criminal Street And Prison Gangs, Jordan Blair Woods
Michigan Journal of Race and Law
This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the prosecuted White-affiliated gangs fell into three categories: international organized crime groups, outlaw motorcycle gangs, and White supremacist prison gangs. Some scholars and practitioners would explain these findings by contending that most criminal street gangs are comprised of racial minorities. This Article challenges and problematizes this …
The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo
The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo
Michigan Journal of Race and Law
In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …
Racial Cartels, Daria Roithmayr
Racial Cartels, Daria Roithmayr
Michigan Journal of Race and Law
This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values …
Do Not (Re)Enter: The Rise Of Criminal Background Tenant Screening As A Violation Of The Fair Housing Act, Rebecca Oyama
Do Not (Re)Enter: The Rise Of Criminal Background Tenant Screening As A Violation Of The Fair Housing Act, Rebecca Oyama
Michigan Journal of Race and Law
Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, …
From Proposition 209 To Proposal 2: Examining The Effects Of Anti-Affirmative Action Voter Initiatives, Michigan Journal Of Race & Law
From Proposition 209 To Proposal 2: Examining The Effects Of Anti-Affirmative Action Voter Initiatives, Michigan Journal Of Race & Law
Michigan Journal of Race and Law
Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100
The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker
The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker
Michigan Journal of Race and Law
The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of …
The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Michigan Journal of Race and Law
This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …
Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun
Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun
Michigan Journal of Race and Law
This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
Michigan Journal of Race and Law
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …
Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford
Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford
Michigan Journal of Race and Law
This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth …
Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee
Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee
Michigan Journal of Race and Law
This Article begins by comparing the concerns of American racial profiling to current terrorism concerns. Part II is an overview of the Bank Secrecy Act and its role in privacy issues concerning bank customers (as the predecessor to the USA Patriot Act). Here, the value of traditional reporting devices, specifically CTRs and SARs used by banks to alert law enforcement to possible terrorist activities, are discussed and evaluated. The facts suggest these reports have been ineffective in identifying terrorists, and have not only greatly infringed upon First Amendment privacy rights, but also diminished the Fourth Amendment protection against warrant-less searches …
A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill
A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill
Michigan Journal of Race and Law
This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms …
Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert
Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert
Michigan Journal of Race and Law
This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …
Vigilante Racism: The De-Americanization Of Immigrant America, Bill Ong Hing
Vigilante Racism: The De-Americanization Of Immigrant America, Bill Ong Hing
Michigan Journal of Race and Law
Sadly, the de-Americanization process is capable of reinventing itself generation after generation. We have seen this exclusionary process aimed at those of Jewish, Asian, Mexican, Haitian, and other descent throughout the nation's history. De-Americanization is not simply xenophobia, because more than fear of foreigners is at work. This is a brand of nativism cloaked in a Euro-centric sense of America that combines hate and racial profiling. Whenever we go through a period of de-Americanization like what is currently happening to South Asians, Arabs, Muslim Americans, and people like Wen Ho Lee-a whole new generation of Americans sees that exclusion and …
The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu
The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu
Michigan Journal of Race and Law
This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.
Striking A Sincere Balance: A Reasonable Black Person Standard For "Location Plus Evasion" Terry Stops, Mia Carpiniello
Striking A Sincere Balance: A Reasonable Black Person Standard For "Location Plus Evasion" Terry Stops, Mia Carpiniello
Michigan Journal of Race and Law
Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and …
Subtracting Race From The "Reasonable Calculus": An End To Racial Profiling? United States V. Montero-Camargo 208 F.3d 1122 (9th Cir. 2000) Cert. Denied Sub Nom, Elisabeth R. Calcaterra, Natalie G. Mitchell
Subtracting Race From The "Reasonable Calculus": An End To Racial Profiling? United States V. Montero-Camargo 208 F.3d 1122 (9th Cir. 2000) Cert. Denied Sub Nom, Elisabeth R. Calcaterra, Natalie G. Mitchell
Michigan Journal of Race and Law
This Case Note presents the facts of Montero-Camargo, describes the decision of the Ninth Circuit Court in historical context, and analyzes the effect of the Court's holding. The Case Note argues that while the Ninth Circuit's decision to prohibit the use of race as a factor in determining the reasonableness calculus in traffic stops is progressive in spirit, implementing the decision will be difficult. Thus far, mechanisms designed to limit officers' use of race in traffic stops have been ineffective and have left victims with little recourse, resulting in a disproportionate number of innocent African American and Latino drivers …
Blood Will Tell: Scientific Racism And The Legal Prohibitions Against Miscegenation, Keith E. Sealing
Blood Will Tell: Scientific Racism And The Legal Prohibitions Against Miscegenation, Keith E. Sealing
Michigan Journal of Race and Law
This article first examines the miscegenation paradigm in terms of a seven-point conceptual framework that not merely allowed but practically demanded anti-miscegenation laws, then looks at the legal arguments state courts used to justify the constitutionality of such laws through 1967. Next, it analyzes the Biblical argument, which in its own right justified miscegenation, but also had a major influence on the development of the three major strands of scientific racism: monogenism, polygenism and Darwinian theory. It then probes the concept upon which the entire edifice is constructed-race--and discusses the continuing vitality of this construct. Next, this article turns to …
Racial Profiling: "Driving While Mexican" And Affirmative Action, Victor C. Romero
Racial Profiling: "Driving While Mexican" And Affirmative Action, Victor C. Romero
Michigan Journal of Race and Law
This Essay will focus on "racial profiling" not just in the way many people think about the term-that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black"-but also in the context of "affirmative action"-namely, using race as a factor in employment and educational decisions. More broadly, then, the author wants us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual," which moves us slightly away from more pejorative notions of the phrase that have seeped into the national …
The Charleston Policy: Substance Or Abuse?, Kimani Paul-Emile
The Charleston Policy: Substance Or Abuse?, Kimani Paul-Emile
Michigan Journal of Race and Law
In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.
Some Observations On Teaching From The "Pioneer" Generation, James E. Jones Jr.
Some Observations On Teaching From The "Pioneer" Generation, James E. Jones Jr.
Michigan Journal of Race and Law
A paper from the perspective of the "pioneer" generation.
Affirmative Action: Where Is It Coming From And Where Is It Going?, Denise Page Hood
Affirmative Action: Where Is It Coming From And Where Is It Going?, Denise Page Hood
Michigan Journal of Race and Law
A review of We Wont Go Back: Making the Case for Affirmative Action by Charles R. Lawrence III & Mari J. Matsuda
Asian America's Greatest Hits: A Review Of Angelo Ancheta's Race, Rights, And The Asian American Experience, Kevin M. Pimentel, Ronnie H. Rhoe
Asian America's Greatest Hits: A Review Of Angelo Ancheta's Race, Rights, And The Asian American Experience, Kevin M. Pimentel, Ronnie H. Rhoe
Michigan Journal of Race and Law
A review of Race, Rights, and the Asian American Experience by Angelo N. Ancheta.