Law Commons^™

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Michigan Journal of International Law

If, with the benefit of hindsight, Mr. Choudhury's case was a harbinger of the emergence of various problems associated with Islam and the rights of Muslim minorities in European nation-states, then the events of September 11, 2001 have propelled these issues to the forefront of law and politics in a way unimaginable even a decade earlier. In Denmark, cartoons depicting the Islamic prophet Muhammad as a suicide bomber have been published leading to protests and violence across Europe and the Islamic world; a law prohibiting students in public schools from wearing symbols or attire through which they conspicuously exhibit a …

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

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 …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Preserving A Racial Hierarchy: A Legal Analysis Of The Disparate Racial Impact Of Legacy Preferences In University Admissions, Kathryn Ladewski

Michigan Law Review

Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their nonwhite counterparts, because past generations of college students were less diverse than today's applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

Engineering The Endgame, Ellen D. Katz

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski

Michigan Law Review First Impressions

Courts, legislatures, and scholars are increasingly turning away from traditional Aristotelian thinking in favor of a substantive, pro-active approach to equality. Under the substantive approach, the identification and eradication of systematic discrimination replace an adherence to neutral principles. This Comment argues that while a substantive approach is the most effective way to bring about true equality, it will not succeed unless it centers on protecting group rights. State decision-makers and international human rights advocates must focus on group experiences in order to create societies where no one is favored based on immutable characteristics.

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, …

Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Book Chapters

Sidney Mintz’s Worker in the Cane is a model life history, uncovering the subtlest of dynamics within plantation society by tracing the experiences of a single individual and his family. By contrast, Mintz’s Sweetness and Power gains its force from taking the entire Atlantic world as its scope, examining the marketing, meanings, and consumption of sugar as they changed over time. This essay borrows from each of these two strategies, looking at the history of a single peripatetic family across three long-lived generations, from enslavement in West Africa in the eighteenth century through emancipation during the Haitian Revolution in the …

Law Enforcement In Subordinated Communities: Innovation And Response, Richard Delgado

Michigan Law Review

Policing styles and policy reform today exhibit a ferment that we have not seen since the turbulent sixties. The reasons propelling reform include some of the same forces that propelled it then - minority communities agitating for a greater voice, demands for law and order - but also some that are new, such as the greater premium that society places on security in a post-9/11 world. Three recent books discuss this new emphasis on styles of policing. Each centers on policing in minority communities. Steve Herbert's Citizens, Cops, and Power: Recognizing the Limits of Community examines the innovation known as …

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 Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon

Michigan Law Review First Impressions

The dirty little secret is out: people with more money get a better deal in our criminal justice system. Anyone who has spent more than a nanosecond in this system knows it to be true, yet that does not make it right. It is an abomination to divert our attention to pay-to-stay programs instead of finding the resources to improve our general jail facilities to make them tolerable for every inmate. Don’t get us wrong—if we suffered the misfortune of being arrested, we would dearly love the opportunity to pay for a private jail facility. However, the pay-to-stay initiative is …

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

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

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …

Mission Accomplished?, Ellen D. Katz

Articles

My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

The Fair Housing Act And Disparate Impact In Homeowners Insurance, Dana L. Kaersvang

Michigan Law Review

This Note argues that because homeowners insurance is central to homeownership, the FHA applies to insurance underwriting policies, such as those mentioned above, that have a disparate impact on minority potential homeowners. Part I considers whether the FHA applies to homeowners insurance and concludes that homeowners insurance is covered by the Act. Part II goes on to argue that the FHA applies to homeowners insurance even where the discrimination results from disparate impact, rather than from disparate treatment. Finally, Part III analyzes the above-mentioned policies of the insurance industry under the FHA disparate impact standard.

Documenting Discrimination In Voting: Judicial Findings Under Section 2 Of The Voting Rights Act Since 1982, Ellen D. Katz, Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, Anna Weisbrodt

Other Publications

The Voting Rights Initiative ("VRI") at the University of Michigan Law School was created during the winter of 2005 to help inform [...] the debates that led to this latest congressional reauthorization and the legal challenge to it that is certain to follow. A cooperative research venture involving 100 students working under faculty direction set out to produce a detailed portrait of litigation brought since 1982 under Section 2. This Report evaluates the results of that survey. The comprehensive data set may be found in a searchable form at http://www.votingreport.org or http://www.sitemaker.umich.edu/votingrights. The aim of this report and the accompanying …

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

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

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

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 …

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

Articles

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Documenting Discrimination In Voting: Judicial Findings Under Section 2 Of The Voting Rights Act Since 1982, Ellen D. Katz, Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, Anna Weisbrodt

Other Publications

This year marks the fortieth anniversary of one of the most remarkable and consequential pieces of congressional legislation ever enacted. The Voting Rights Act of 1965 ("the VRA") targeted massive disfranchisement of African-American citizens in numerous Southern states. It imposed measures drastic in scope and extraordinary in effect. The VRA eliminated the use of literacy tests and other "devices" that Southern jurisdictions had long employed to prevent black residents from registering and voting. The VRA imposed on these jurisdictions onerous obligations to prove to federal officials that proposed changes to their electoral system would not discriminate against minority voters. Resistance …

Fair Representation On Juries In The Eastern District Of Michigan: Analyzing Past Efforts And Recommending Future Action, Andrew J. Lievense

University of Michigan Journal of Law Reform

This Note builds on past recommendations to reform jury selection systems to make juries more representative of the community. Juries representing a fair cross section of the community are both a statutory and constitutional requirement, as well as a policy goal. How a judicial district designs and implements its jury selection system is important to meeting this requirement.

Part I of this Note analyzes the history and development of the representativeness interest on juries, explains how the United States District Court for the Eastern District of Michigan attempted to meet this interest in the 1980s and 1990s, and reports and …