Law Commons^™

Legal Education At A Crossroads: Innovation, Integration, And Pluralism Required!, Antoinette M. Sedillo Lopez, Robert F. Seibel, Peggy Maisel, Karen Tokarz

Faculty Scholarship

We conclude in this Article that expanded practice-based, experiential education will provide foundational learning for the successful transition from law student to law practice, and that clinical education (in-house clinics, hybrid clinics, and externships) is crucial to the preparation of competent, ethical law graduates who are "ready to become professionals." We urge law schools to require each graduate complete a minimum of twenty-one experiential course credits over the three years of law school, including at least five credits in law clinics or externships. Twenty-one required credits (or roughly 25 percent of the eighty-three required credits for graduation from an American …

Judicial Modesty In The Wartime Context, Dawinder S. Sidhu

Faculty Scholarship

“The most important thing we do is not doing,” Justice Louis D. Brandeis noted of the Supreme Court. At the height of the Civil War, the Supreme Court in Roosevelt v. Meyer claimed that it could not review, and therefore let stand, a state court decision upholding the Legal Tender Act (“Act”), a critical wartime measure designed to stabilize the Union economy and fund the Union’s war efforts. In this essay, I suggest that this oft-overlooked case warrants the legal community’s consideration because it implicates a question fundamental to our constitutional system: should the courts decline judicial review—or, “not do”—in …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel, Maritza I. Reyes

Journal Publications

No abstract provided.

Opening Borders: African Americans And Latinos Through The Lens Of Immigration, Maritza I. Reyes

Journal Publications

African-American and Latino voter turnout during the 2008 and 2012 presidential elections hit record numbers. Polls show that the immigration debate influenced Latino voter turnout and preference. Presidential candidate Barack Obama's voiced support of comprehensive immigration reform strengthened his lead among Latino voters in 2008 and, once in office, his executive policy of granting temporary protection to DREAMers solidified his lead among Latino voters in 2012. Both elections showed the power that minority groups can exert when they vote in support of the candidate. If the demographic changes continue as currently estimated, African Americans and Latinos will contribute in large …

Rising Arizona: The Legacy Of The Jim Crow Southwest On Immigration Law And Policy After 100 Years Of Statehood, Kristina M. Campbell

Journal Articles

United States immigration law and policy is one the most controversial issues of our day, and perhaps no location has come under more scrutiny for the way it has attempted to deal with the problem of undocumented immigration than the State of Arizona. Though Arizona recently became notorious for its “papers please” law, SB 1070, the American Southwest has long been a bastion of discriminatory race-based law and policy – immigration and otherwise – directed toward Latinos, American Indians, African-Americans, and other non-White racial and ethnic minorities. While largely ignored by both legal and American historians, the socalled “Jim Crow …

The Case Of Dixon V. Alabama: From Civil Rights To Students' Rights And Back Again, Philip Lee

Journal Articles

On February 25, 1960, African American students from Alabama State College participated in a sit-in at a segregated lunch grill at the Montgomery County Courthouse. The lunch grill refused to serve the students and ordered them to leave. The students left and went to the courthouse corridor, where they remained for an hour before going back to campus.

When Alabama State College learned of the students’ actions, it summarily expelled them without notice or hearing. In expelling the students, the college relied on Alabama State Board of Education regulations that allowed it to expel students for “conduct unbecoming a student …

Race And The Reference Librarian, Mary Whisner

Librarians' Articles

Ms. Whisner examines how race arises in the day-to-day work of law librarians, and discusses how law librarians can foster cultural competence and create more welcoming environments in diverse institutions.

Converge! Reimagining The Movement To End Gender Violence Symposium: Panel On Intersections Of Gender, Economic, Racial, And Indigenous (In) Justice, Margaret E. Johnson

All Faculty Scholarship

JOHNSON: This presentation envisions what a better domestic violence legal system might look like for persons subjected to domestic abuse who have not had their needs met or who have been harmed by the current legal system. The paper reframes the focus of the civil legal system from a paradigm of safety into a paradigm of security, including economic, housing, health, and relationship security. This reframing permits a focus on the domestic violence legal system and its intersecting systems of oppression such as race, gender, class, and ethnicity.

Currently, the domestic violence legal system targets short-term physical safety of the …

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

All Faculty Scholarship

This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity …

The Breach Of The Common Law Trust Relationship Between The United States And African Americans – A Substantive Right To Reparations, Ayesha Bell Hardaway

Faculty Publications

Domination and elaborate control of Africans in colonial America, and later the United States, were exerted to provide the requisite framework for the economically profitable Trans-Atlantic slave trade. Proponents of slavery characterized the aims of slavery in pseudo-paternalistic terms to “train” and “civilize[e] the untutored savage.” Even after the formal end of slavery, the U.S. and local governments continued to exercise its domination and elaborate control by enforcing a national system of racial segregation and discrimination. That system of government-sanctioned laws was so pervasive and commonly accepted that it has been personified as “Jim Crow.” As a result, racial hierarchy …

Zero Tolerance Policies: Criminalizing Childhood And Disenfranchising The Next Generation Of Citizens, S. David Mitchell

Faculty Publications

A juvenile adjudication of guilt has far more drastic consequences than existed just ten years ago ... Some of these consequences may not be apparent for a number of years, but their possibility should be anticipated, fully considered, and planned for, wherever possible. Under zero tolerance, students are suspended, expelled, or referred to juvenile authorities or some combination thereof for specified offenses. Zero tolerance policies punish students harshly regardless of the severity of the infraction, the existence of mitigating circumstances, or the context in which the conduct occurred. Part II discusses the origin and evolution of zero tolerance policies, as …

Challenging Presumed (Im)Morality: A Personal Narrative, Angela Mae Kupenda

Journal Articles

This narrative essay is about presumptions of (im)morality in academic settings. Such biased presumptions affect our abilities, even as educators, to work together and foster a society built on principles of justice that could help us work, live, and play better together. Learning to understand, work with, live near, and care about others are goals to which many of us would say we aspire. As law professors, we consider collegiality to be one of the factors we use in evaluating candidates for hiring and promotion decisions. However, these evaluations may rest not on the worthiness or respected humanity of others, …

Will The South Rise Again And, If So, In What Form?: Lessons From Latcrit About Resisting The Fear Of Cultural Understanding, Angela Mae Kupenda

Journal Articles

Through lessons learned from LatCrit 2013, this essay is hoping to evoke the missing sentiment of understanding and equality by signifying that the south that will rise again will be a south that is transformed, as Dr. Martin Luther King said “into an oasis of freedom and justice,” by moving out of its fears of understanding and moving to a far greater level of cross-cultural understanding.

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

The Legacy Of Stop And Frisk: Addressing The Vestiges Of A Violent Police Culture, Kami Chavis Simmons

Faculty Publications

For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed.

While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. …

Twenty Years After The Education Apocalypse: The Ongoing Fall Out From The 1994 Omnibus Crime Bill, Spearit, Mary Gould

Articles

This essay is an introduction to the 2013 National Conference on Higher Education in Prison, organized by the Saint Louis University Prison Program. It is a primer on the current state of higher education in prison, which provides a social-legal framework for the conference and the symposium essays that follow. Beginning with the recent history of the exponential growth of incarceration in the past four decades, it charts the unprecedented reliance on incarceration that, at present, distinguishes the country as a world-class punisher. It was in the middle of this shift that the 1994 Omnibus Crime Bill was born, which …

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew …

Race To Incarcerate: Punitive Impulse And The Bid To Repeal Stand Your Ground, Aya Gruber

Publications

Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium--The Plenary Panel, Maritza I. Reyes, Angela Mae Kupenda, Angela Onwuachi-Willig, Stephanie M. Wildman, Adrien K. Wing

Journal Articles

Presumed Incompetent was produced thanks to the vision and commitment of its editors: Dr. Gabriella Gutiérrez y Muhs, Dr. Yolanda Flores Niemann, Carmen G. González, and Angela P. Harris. This symposium came to fruition because the Berkeley Journal of Gender, Law & Justice invited the two law professor editors, Professor Harris and Professor González, to convene a distinguished group of scholars from Canada and the United States to expand and deepen the conversation initiated by the book. The very successful day-long symposium and the publication of the resulting articles were made possible by the resources, time, and dedication provided by …

The Story Behind A Letter In Support Of Professor Derrick Bell, Cheryl Nelson Butler, Sherrilyn Ifill, Suzette Malveaux, Margaret E. Montoya, Natsu Taylor Saito, Nareissa L. Smith, Tanya Washington

Publications

Professor Derrick A. Bell, Jr. had a long and proud history of disturbing authority. He is widely noted as one of the founders of Critical Race Theory. His scholarship on race was not only a direct challenge to the traditionally conservative legal academy, but also to the more liberal bastions within the academy, such as the Critical Legal Studies movement. His writings about the role of race in American law have made him one of the most prominent legal scholars of a generation.

However, Professor Bell did not merely write about racial injustices. He was willing to take risks to …

The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.

Articles

This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …

Muslim Radicalization In Prison: Responding With Sound Penal Policy Or The Sound Of Alarm?, Spearit

Articles

This article assesses radicalization among Muslim prisoners in the post- 9/11 era by analysis of ethnographic data in light of the available research. There are two primary motives that drive this inquiry: (1) to determine whether prisons are “fertile soil for jihad” as claimed, and (2) to the extent prisoner radicalization does occur, determine the ideological motives. In the last decade, politicians and analysts have clamored about the “danger” and “threat” posed by Islam in American prisons. Yet these characterizations sit in tension with several decades of sustained Islamic outreach in prison to support inmate rehabilitation and re-entry. They also …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

Articles

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay …

At The Tipping Point: Race And Gender Discrimination In A Common Economic Transaction, Lu-In Wang

Articles

This Article examines the ubiquitous, multibillion dollar practice of tipping as a vehicle for race and gender discrimination by both customers and servers and as a case study of the role that organizations play in producing and promoting unequal treatment. The unique structure of tipped service encounters provides plenty of opportunities and incentives for the two parties to discriminate against one another. Neither customers nor servers are likely to find legal redress for the kinds of discrimination that are most likely to occur in tipped service transactions, however, because many of the same features of the transaction that promote discrimination …

Testing, Discrimination, And Opportunity: A Reply To Professor Harvey Gilmore, Dan Subotnik

Scholarly Works

This article was written as part of an ongoing dialog about the author’s previous article, "Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning," which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to an article written by Professor Harvey Gilmore which focuses mostly on the SAT and the LSAT.

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and subsequent …