Law Commons^™

Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold

Faculty Scholarship

“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …

Colorblind Capture, Jonathan Feingold

Faculty Scholarship

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or …

The Crt Of Black Lives Matter, Angela Onwuachi-Willig

Faculty Scholarship

Critical Race Theory ("CR T"), or at least its principles, stands at the core of most prominent social movements of today-from the resurgence of the #MeToo Movement, which was founded by a Black woman, Tarana Burke, to the Black Lives Matter Movement, which was founded by three Black women: Opal Tometi, Alicia Garza, and Patrisse Cullors. In fact, Critical Race Theorists have long defined CRT itself as a movement, one that has not only provided theoretical interventions regarding the relationship between race, racism, power, and the law, but that has also encouraged and, in fact, inspired and guided social movements. …

Civil Rights Catch 22s, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro

Faculty Scholarship

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

Excavating Race-Based Disadvantage Among Class-Privileged People Of Color, Khiara Bridges

Faculty Scholarship

The aim of this article is to begin to theorize the fraught space within which class-privileged racial minorities exist — the disadvantage within their privilege. The article posits that the invisibility of the racial subordination of wealthier people of color (that is, their marginalization on account of their race) is fertile soil for the germination of post-racialism — the sense that we, as a nation, have overcome our racial problems. The dramatic visibility of the minority poor’s suffering, combined with the relative invisibility of the suffering of those minorities who are not poor, breeds the belief that class is now …

Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose

Faculty Scholarship

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …

The Deserving Poor, The Undeserving Poor, And Class-Based Affirmative Action, Khiara M. Bridges

Faculty Scholarship

This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives …

Defusing Implicit Bias, Jonathan Feingold, Karen Lorang

Faculty Scholarship

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined …