Law Commons^™

Retrying Race, Anthony V. Alfieri

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No abstract provided.

Critical Praxis, Spirit Healing And Community Activism: Preserving A Subversive Dialogue On Reparations, Christian Sundquist

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African-American reparations have the potential to deconstruct racial privilege, promote racial reconciliation, and heal the psychic injuries of the African-American community. However, many models of reparations have given up on the promise of reparations in exchange for the slim possibility of short-term progress.

A subversive dialogue on African-American reparations, however, will inevitably critique equal opportunity, individualism, and white innocence and privilege. Embraced by the majority, and internalized by the African-American community, the principles of individualism, equal opportunity, and meritocracy reinforce white innocence and privilege to the extent that future, current and past inequality are cast as the natural and inevitable …

Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring

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This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes.

The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their long term well-being. Among other implications, this study may justify public child welfare …

Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes

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No abstract provided.

How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth

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The past decade has witnessed numerous high-profile criminal trials in which controversial verdicts have been attributed to racethe race of the defendant, the racial composition of a jury, an attorney "playing the race card," and so on. A predominantly Black jury's acquittal of O.J. Simpson and White jurors' leniency in the police brutality cases of Rodney King and Amadou Diallo not only sparked public debate, but also led to rioting and violence. In the wake of trials such as these, many have questioned the viability of the American jury system.' More specific questions regarding the influence of race on jury …

Strangers And Brothers: A Homily On Transracial Adoption, Carl E. Schneider

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The common law speaks to us in parables. Ours is Drummond v. Fulton County Department of Family and Children's Services. Just before Christmas 1973, a boy named Timmy was born to a white mother and a black father. A month later, his mother was declared unfit, and the Department of Family and Children Services placed Timmy with white foster parents - Robert and Mildred Drummond. The Drummonds were "excellent" and "loving" parents, and Timmy grew into "an extremely bright, highly verbal, outgoing 15-month baby boy." Then the Drummonds asked to adopt Timmy. The Department's reviews of the Drummonds' devotion …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

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A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

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Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

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Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

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Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

Class And Status In American Law: Race, Interest, And The Anti-Transformation Cases, Martha R. Mahoney

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No abstract provided.

Encouraging Race-Based Advocacy In Legal Services Practice, Jonel Newman

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Every legal services program has a waiting room, some newly furnished, others with old sofas and tattered chairs. The families, children, and elderly sitting in these waiting rooms consistently are disproportionately racial and ethnic minorities. Despite this constant reminder that those seeking legal assistance for their perceived wrongs are disproportionately racial and ethnic minorities, legal services programs are bringing fewer and fewer affirmative challenges that incorporate race-based antidiscrimination claims.
In this article we explore possible reasons for this lack of affirmative race- and national-origin-based discrimination claims and suggest some ideas for preserving or restarting this type of advocacy, ideas that …

Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Bames

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Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today... the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that."4 Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It never has been con-doned …

"We Must Be Hunters Of Meaning": Race, Metaphor, And The Models Of Steven Winter, D. Marvin Jones

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No abstract provided.

Equal Opportunity, Individual Liberty And Meritocracy In Education: Reinforcing Structures Of Privilege And Inequality, Christian Sundquist

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The paradigm of equal opportunity inevitably seeks to reproduce and maintain structures of class and racial privilege. The deficit story of equal opportunity is as follows: equal opportunity is a truly objective, neutral, and fair method to allocate educational, employment, and political resources to members of society, without regard to race, class, gender or ethnicity. The ideal of equality assumes the possibility of an objective measure of merit under which individuals' free choices and preferences may be evaluated. Accordingly, through the creation of a baseline that presupposes the inherent sameness of all people and disregards systemic discrimination as a fallacy, …

Private Pathologies And Public Policies: Race, Class, And The Failure Of Child Welfare (Book Review), Charlton C. Copeland

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No abstract provided.

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

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In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

Unwarranted Assumptions In The Prosecution And Defense Of Hate Crimes, Lu-In Wang

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Although at far from the level of intensity and prominence that it reached 10 years ago, the controversy over hate crimes legislation continues. In the early 1990s, debate centered on two main points of contention: whether such laws, which either criminalized traditionally racist acts or increased the punishment for other crimes when they were motivated by racial or ethnic bias, violated the First Amendment right to freedom of expression, and whether the laws were unwise and illegitimate because they seemed to provide greater protection against crime to minority groups and to emphasize, rather than obscure or obliterate, the racial divisions …

Racial Profiling Under Attack, Samuel R. Gross, D. Livingston

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The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department ofJustice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence-a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, its use in …

A Comment On Race And The Law, Zanita E. Fenton

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No abstract provided.

The Law Of White Spaces: Race, Culture, And Legal Education, Peter Goodrich, Linda G. Mills

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The scene, drawn from memory, is a first-year law school classroom. It is the early 1980s and the class is on civil procedure. The teacher is a white woman. She is nervous, and the class is dominated by students who provide standard right answers to formulaic law school questions. Other points of view, particularly those of a critical or feminist nature, are either passed over quickly or ignored. Questions of color are never mentioned. More than that, the teacher never calls on any African-American students. Students of color are either ignored completely or told, when they have questions, “We are …

'Suitable Targets'? Parallels And Connections Between 'Hate Crimes' And 'Driving While Black', Lu-In Wang

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While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied racial profiling reveals striking similarities and connections between these two practices. In particular, both hate crimes and racial profiling tend to be condemned only at extremes, in situations where they appear to be irrational and excessive, but overlooked in cases where they seem logical or are expected. The tendency to see only the most extreme cases as problematic, however, fails to recognize that …

Race Prosecutors, Race Defenders, Anthony V. Alfieri

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No abstract provided.

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

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In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

Foster Care: The Border Of Family Identity Maintaining, (Re)Creating, Destroying, Zanita E. Fenton

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No abstract provided.

Myths And Facts About Affirmative Action, Richard O. Lempert, David L. Chambers, Terry K. Adams

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The case against affirmative action in admissions to institutions of higher education is based on the moral attractiveness of colorblind decision making and buttressed by a sense that such programs are not just unfair but pointless. Their intended beneficiaries, the argument goes, are put in situations in which they are unable to compete with whites and not only perform poorly but are destructively demoralized in the process. Common to arguments against affirmative action in admissions is a belief that minorities advantaged by it displace whites who are more deserving of admission because they have accomplished more, can better benefit from …

Teaching The Law Of Race (Book Review), Anthony V. Alfieri

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No abstract provided.

Asset Protection Trusts: Trust Law's Race To The Bottom?, Stewart E. Sterk

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No abstract provided.

Prosecuting Violence/Reconstructing Community, Anthony V. Alfieri

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For two centuries, the private violence of American history has paraded into courts for public trial. Often dramatized by the spectacle of rape and murder, the public trials of private violence increasingly are seen to decide the fates of both the accused and the victim of crime. The fate of community, whether the community of the victim, the accused, or the public, seems at first blush untouched by such trials. Like victims and their families, however, communities struck by violence suffer profound loss. That loss is expressed in the destruction of public discourse, reason, and citizenship. This public ruin is …

Constructing Solidarity: Interest And White Workers, Martha R. Mahoney

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No abstract provided.