Law Commons^™

Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

(Im)Mutable Race?, Deepa Das Acevedo

Faculty Articles

Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Faculty Articles

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …

Bias In The Classroom, One Degree Removed: The Story Of Turner V. Stime And Amicus Participation, Robert S. Chang

Faculty Articles

This article summarizes a recent amicus brief written by the Korematsu Center. It describes a Spokane, Washington medical malpractice case where juror racial bias toward a party’s attorney was used as direct evidence. It describes the momentum and mobilization of the amicus brief, and the success in the appellate courts. It is offered as a model for how law school clinics can engage in effective advocacy to help democratize the courts.

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren L. Hutchinson

Faculty Articles

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform liti­gation a judicial relic. Part II examines the historical development of in­stitutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post­-Brown era and contrasts those cases with Judge Sanders's rulings on the subject. In …

Racial Exhaustion, Darren L. Hutchinson

Faculty Articles

This Article proceeds in three principle parts. Part II explains the role of rhetoric and narratives in shaping commonly held societal beliefs and argues that racial exhaustion discourse functions as a social script that seeks to portray the United States as a post-racist society. Part II then summarizes the basic content of racial exhaustion rhetoric and identifies five common arguments that have endured across historical contexts, which depict race-based remedies as redundant, taxing, injurious to whites, special handouts to blacks, and futile because law cannot alter racial inequality. Next, Part II examines the political rhetoric employed by nineteenth-century Congressional opponents …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Critical Race Histories: In And Out, Darren L. Hutchinson

Faculty Articles

Insider critiques of CRT also require critical assessment. Recent internal critics complain that racial identity discourse, including multidimensionality theory, marginalizes more important attention to material, class, or economic issues. If their claim holds true, the material harm critics serve a vital purpose: because racial injustice causes and interacts with economic deprivation, any progressive racial justice movement should interrogate class and economic inequality concems. Nevertheless, the analysis of the material harm critics suffers because it dichotomizes class and multidimensionality. Although these critics bifurcate multiplicity and class analysis, multiplicity theories relate to class analysis in two important respects. First, poverty has multidimensional …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Progressive Race Blindness: Individual Identity, Group Politics, And Reform, Darren L. Hutchinson

Faculty Articles

This Article responds to the advocates of "progressive race blindness" with several critiques of their central claims. Part I examines the contours of progressive race blindness in greater detail, giving centrality to the emergence of this theory in legal scholarship. Part I sets forth the common themes articulated in progressive race blindness arguments and highlights important differences among its proponents. Part II isolates several problems with the progressive race blindness literature and demonstrates that these weaknesses make the literature unhelpful as a political or legal theory and even dangerous to the cause of antiracism. Part III offers suggestions for future …

Identity Crisis: "Intersectionality," "Multidimensionality," And The Development Of An Adequate Theory Of Subordination, Darren L. Hutchinson

Faculty Articles

This Article arises out of the intersectionality and post-intersectionality literature and makes a case against the essentialist considerations that informed HRC's endorsement of D'Amato. Part I discusses the pitfalls that occur when scholars and activists engage in essentialist politics and treat identities and forms of subordination as conflicting forces. Part II examines how essentialism negatively affects legal theory in the equality context. Part III considers the historical motivation for and the efficacy of the "intersectionality" response to the problem of essentialism. Part III also extensively analyzes the "multidimensional" critiques of essentialism offered by the most recent school of thought in …

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren L. Hutchinson

Faculty Articles

Several historical reasons explain opposition to the airing of internal criticism by scholars and activists within progressive social movements and by members of subordinate communities. Opponents often contend that such criticism might reinforce negative stereotypes of subordinate individuals and that reactionary movements and activists might appropriate and misuse negative portrayals of the oppressed. A related fear holds that internal criticism will dismantle political unity within oppressed communities and progressive social movements, thereby forestalling social change. While these concerns provide some context for understanding the resistance to internal criticism within progressive social movements, I argue in this essay that they do …

Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren L. Hutchinson

Faculty Articles

My argument proceeds in four parts. Part I situates my discussion of the synergistic relationship among race, class, gender, and sexuality within a broader body of research on the "intersectionality'' of systems of oppression and of identity categories. Part I then examines how my scholarship attempts to advance this literature both substantively and conceptually. Part II expounds my claim that the comparative and essentialist treatment of race and sexuality within pro-gay and lesbian theory and politics marginalizes gay, lesbian, bisexual, and trans­gendered persons of color and constructs and reinforces the notion that the gay and lesbian community is uniformly white …

Centering The Immigrant In The Inter/National Imagination, Robert S. Chang, Keith Aoki

Faculty Articles

In this Article, Professors Chang and Aoki examine the relationship between the immigrant and the nation in the complicated racial terrain known as the United States. Special attention is paid to the border which contains and configures the local, the national and the international. They criticize the contradictory impulse that has led to borders becoming increasingly porous to the flows of information, goods and capital while simultaneously constricting when it comes to the movement of certain persons, particularly those of Asian and Latinalo ancestry. The authors examine Monterey Park, California, as one site where there has been a large influx …

Symbol And Substance In The Minority Professoriat's Future, Henry Mcgee

Faculty Articles

Professor McGee addresses the issues faced by minority professors. In an environment that is mostly white, the minority professor is confronted with problems simply by being present on campus. The minority professor also faces significant dilemmas with respect to his/her own community. As increasing numbers of minorities fall farther below the national socio-economic and social indicators, and racial isolation deepens and becomes more pervasive, the minority law professor becomes estranged from his/her own community.

Self-Reliance And Coalition In An Age Of Reaction, Henry Mcgee

Faculty Articles

In this Foreward, Professor McGee comments on the continued vitality of the Black Law Journal. This vitality shows that the plight of racial minorities will be continually addressed from a variety of intellectual perspectives.

Gentrification And The Law: Combatting Urban Displacement, Henry Mcgee, Donald C. Bryant Jr.

Faculty Articles

This article stresses a "push" perspective in its examination of how these legally structured forces have stimulated the return of the gentry to the central urban areas of the United States.

Race, Class, And The Contradictions Of Affirmative Action, Henry Mcgee, Alan Freeman, Derrick A. Bell

Faculty Articles

A panel discussion on "Race, Class, and the Contradictions of Affirmative Action" was held as a part of the Third Annual Conference on Critical Legal Studies on November 10, 1979. Professor Alan Freeman, of the University of Minnesota Law School, convened the panel by setting forth the questions to be discussed and critiquing existing theories that have been offered to address the topic. The questions set forth for the panel was whether racism, although a historically separate and identifiable form of oppression, can be approached and remedied in any substantial way without simultaneously confronting the class structure in general. Can …

Illusion And Contradiction In The Quest For A Desegregated Metropolis, Henry Mcgee

Faculty Articles

A decade of litigation in which the central issue of discrimination essentially was uncontested thus far has failed to disestablish racial segregation or produce desperately needed low-income housing for Chicago blacks. Recently, the unconcluded litigation has produced a unanimous United States Supreme Court decision exposing suburban racial sanctuaries to the possibility of integrated public housing units. Although the first-named plaintiff in the suit, Dorothy Gautreaux, did not survive the decision, the extent of her posthumous triumph is the central theme of this article. Although Gautreaux superficially indicates that a federal judge has the power to desegregate federally subsidized housing and …

Power(Lessness) And Dispersion: Comments On Chester Mcguire's The Urban Development Act Of 1974, Community Development Funds And Black Economic Problems, Henry Mcgee

Faculty Articles

Professor McGee discusses Chester McGuire's comprehensive, provocative and good-humored assessment of the Housing and Community Development Act of 1974 (HCDA). McGuire suggests both ominous and benign trends in the shift of political power and allocation of material resources in the United States. In analyzing the McGuire’s assessment of the HCDA, Professor McGee addresses how the act affects minority groups, particularly Black Americans.

Blacks, Due Process And Efficiency In The Clash Of Values As The Supreme Court Moves To The Right, Henry Mcgee

Faculty Articles

Professor McGee examines the move by the Supreme Court to limit rights for minority defendants. Led by its law enforcement-oriented Chief Justice, an emerging majority of the Court has managed to reverse or seriously abridge precedents - both recent and time-honored - which ensured some fairness for minority defendants. Professor McGee addresses the implications of these decisions, and how they have affected due process for Black defendants.

Minority Students In Law School: Black Lawyers And The Struggle For Racial Justice In The American Social Order, Henry Mcgee

Faculty Articles

Professor McGee addresses the endeavor of Black Americans--their struggle against discrimination and segregation--and their entry into law school and the legal profession. The emerging cadre of Black law students represents the newest source of leadership in the struggle for Black liberation. They are part of a surging tide of blackness that may yet save the nation from the decay and death of racism. As such they command attention and respect.

Urban Renewal In The Crucible Of Judicial Review, Henry Mcgee

Faculty Articles

An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the "common law," and the ultimate guarantees associated with the Constitution.