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Full-Text Articles in Law

The Fair Housing Act And Disparate Impact In Homeowners Insurance, Dana L. Kaersvang Aug 2006

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.


The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado May 2006

The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado

Michigan Law Review

It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. In civil-rights law, one thinks of such areas as women's sports or the problems of intersectional groups, such as women of color or gay black men. One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs or execution ...


The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen Jan 2006

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section ...


Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff Jan 2006

Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff

Michigan Law Review First Impressions

League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far ...


Race, Media Consolidation, And Online Content: The Lack Of Substitutes Available To Media Consumers Of Color, Leonard M. Baynes Jan 2006

Race, Media Consolidation, And Online Content: The Lack Of Substitutes Available To Media Consumers Of Color, Leonard M. Baynes

University of Michigan Journal of Law Reform

In its 2003 media ownership proceedings, the FCC relied on the existence of the Internet to provide justification for radically relaxing the FCC ownership rules. These rules limited the national audience reach of the broadcast licensees and the cross-ownership of different media properties by broadcasters and newspapers. In relaxing these rules, the FCC failed to recognize that a media submarket for African Americans and Latinos/as existed. This separate market is evidenced by the different television viewing habits of African Americans and Latinos/as as compared to Whites and Billboard magazine's delineation of R&B/urban music radio stations ...


Strict In Theory, Loopy In Fact, Nathaniel Persily Jan 2006

Strict In Theory, Loopy In Fact, Nathaniel Persily

Michigan Law Review First Impressions

Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal ...


The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott Jan 2006

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.


Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams Jan 2006

Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Michigan Journal of Race and Law

This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown ...


Choice And Fraud In Racial Identification: The Dilemma Of Policing Race In Affirmative Action, The Census, And A Color-Blind Society, Tseming Yang Jan 2006

Choice And Fraud In Racial Identification: The Dilemma Of Policing Race In Affirmative Action, The Census, And A Color-Blind Society, Tseming Yang

Michigan Journal of Race and Law

This Article focuses on the implications of self-conscious efforts by individuals to alter their racial identity and the challenge that they pose to social conventions and the law. It also considers some implications of such a framework to the promotion of a color-blind society, in particular with respect to health care services and bureaucratic records.


Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee Jan 2006

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 ...


The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt Ii Jan 2006

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt Ii

Michigan Journal of Race and Law

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court ...


Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder Jan 2006

Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder

Michigan Journal of Race and Law

The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November ...


Dislocated And Deprived: A Normative Evaluation Of Southeast Asian Criminal Responsibility And The Implications Of Societal Fault, Jason H. Lee Jan 2006

Dislocated And Deprived: A Normative Evaluation Of Southeast Asian Criminal Responsibility And The Implications Of Societal Fault, Jason H. Lee

Michigan Journal of Race and Law

This Note argues that certain Southeast Asian defendants should be able to use their families' refugee experience as well as their own economic and social marginalization in the U.S. as a partial excuse for their criminal acts. This argument draws its strength from both the socioeconomic deprivation of much of the Southeast Asian community and the linking of this reality to a careful analysis of the moral foundations of the criminal law. In essence, the American criminal justice system, which draws much of its moral force to punish from the theory of retributivism, cannot morally justify the full punishment ...


Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker Jan 2006

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker

Michigan Journal of Race and Law

This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been cited as ...


The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong Jan 2006

The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong

Michigan Journal of Race and Law

This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.


On Justitia, Race, Gender, And Blindness, I. Bennett Capers Jan 2006

On Justitia, Race, Gender, And Blindness, I. Bennett Capers

Michigan Journal of Race and Law

This Essay focuses on Justitia's more problematic attributes. Like Justitia's blindfold, which has been described as "the most enigmatic" of her traits. Is the blindfold merely emblematic of Justitia's purported impartiality, her claim to algorithmic justice? As law professor Costas Douzinas and art historian Lynda Nead have asked, does the blindfold enable Justitia "to avoid the temptation to see the face that comes to the law and put the unique characteristics of the concrete person before the abstract logic of the institution"? Or does the blindfold signify something more, a second sight of sorts? Maybe that Justitia ...


A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess Jan 2006

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue ...


What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin Jan 2006

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions ...


Cultural Compactness, Daniel R. Oritz Jan 2006

Cultural Compactness, Daniel R. Oritz

Michigan Law Review First Impressions

The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But ...


Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour Jan 2006

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate for this paper ...


Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault Jan 2006

Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault

Michigan Law Review First Impressions

In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate ...


Self-Defeating Minimalism, Adam B. Cox Jan 2006

Self-Defeating Minimalism, Adam B. Cox

Michigan Law Review First Impressions

Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry ...


This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman Jan 2006

This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman

Michigan Law Review First Impressions

After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions ...


"Framing Affirmative Action", Kimberlé W. Crenshaw Jan 2006

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics ...


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 Jan 2006

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 ...


Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford Jan 2006

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 ...


The Diversity Rationale: Unprovable, Uncompelling, Brian N. Lizotte Jan 2006

The Diversity Rationale: Unprovable, Uncompelling, Brian N. Lizotte

Michigan Journal of Race and Law

Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.


Ghosts Of Alabama: The Prosecution Of Bobby Frank Cherry For The Bombing Of The Sixteenth Street Baptist Church, Donald Q. Cochran Jan 2006

Ghosts Of Alabama: The Prosecution Of Bobby Frank Cherry For The Bombing Of The Sixteenth Street Baptist Church, Donald Q. Cochran

Michigan Journal of Race and Law

Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the ...


A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill Jan 2006

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 ...


Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott Jan 2006

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal ...