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Full-Text Articles in Law

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas Jan 2011

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural ...


Originalism's Race Problem, Jamal Greene Jan 2011

Originalism's Race Problem, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer ...


Stimulus And Civil Rights, Olatunde C.A. Johnson Jan 2011

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities ...


Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke Jan 2011

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question ...


Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan Jan 2011

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana ...


Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt Jan 2011

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt

Faculty Scholarship

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use ...


Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West Jan 2011

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West

Faculty Scholarship

New research has identified the consequences of high rates of incarceration on neighborhood crime rates, but few studies have looked beyond crime to examine the collateral effects of incarceration on the social and economic well being of the neighborhoods themselves and their residents. We assess two specific indicia of neighborhood economic well-being, household income and human capital, dimensions that are robust predictors of elevated crime, enforcement and incarceration rates. We decompose incarceration effects by neighborhood racial composition and socio-economic conditions to account for structural disadvantages in labor force and access to wealth that flow from persistent patterns of residential segregation ...


Adopting, Using, And Discarding Paper And Electronic Payment Instruments: Variation By Age And Race, Ronald J. Mann Jan 2011

Adopting, Using, And Discarding Paper And Electronic Payment Instruments: Variation By Age And Race, Ronald J. Mann

Faculty Scholarship

This paper uses data from the 2008 Survey of Consumer Payment Choice to discuss the adoption, use, and discarding of various common payment instruments. Using a nationally representative sample of individual-level data, it presents evidence in unparalleled detail about how consumers use different payment instruments. Most interestingly, it displays robust evidence of significant age and race-related differences in payments choices. Among other things, it suggests that the range of payment instruments adopted and regularly used by blacks is narrower than that chosen by whites, presumably because of relatively limited access to financial institutions. With regard to age, it documents pervasive ...


Discrimination By Comparison, Suzanne B. Goldberg Jan 2011

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed ...