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Articles 1 - 17 of 17

Full-Text Articles in Law

Reflections On Augusta: Judicial, Legislative And Economic Approaches To Private Race And Gender Consciousness, Scott R. Rosner Oct 2003

Reflections On Augusta: Judicial, Legislative And Economic Approaches To Private Race And Gender Consciousness, Scott R. Rosner

University of Michigan Journal of Law Reform

In light of the recent controversy surrounding Augusta National Golf Club's exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members' claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under ...


White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado Mar 2003

White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado

Michigan Law Review

I had just settled down, taken off my tie, and was about to go over the two-page handout entitled "Information for Wedding Parties " that the minister of the small church had handed me minutes earlier, when I heard a knock and familiar voice from the other side of the anteroom door.


Foreword: Why Retry? Reviving Dormant Racial Justice Claims, Martha Minow Mar 2003

Foreword: Why Retry? Reviving Dormant Racial Justice Claims, Martha Minow

Michigan Law Review

Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale - this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of these ...


Retrying Race, Anthony V. Alfieri Mar 2003

Retrying Race, Anthony V. Alfieri

Michigan Law Review

This Essay investigates the renewed prosecution of long-dormant criminal and civil rights cases of white-on-black racial violence arising out of the 1950s and 1960s. The study is part of an ongoing project on race, lawyers, and ethics within the criminal-justice system. Framed by this larger project, the Essay explores the normative and sociolegal meaning of that resurgent prosecution. My hope in pursuing this inquiry is to better understand, and perhaps begin to refashion, the prosecutor's redemptive role in cases of racial violence. Both descriptive and prescriptive in nature, the inquiry addresses race in relation to law and community. Grappling ...


Cleansing Moments And Retrospective Justice, Margaret M. Russell Mar 2003

Cleansing Moments And Retrospective Justice, Margaret M. Russell

Michigan Law Review

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American ...


The Replacement Dilemma: An Argument For Eliminating A Non-Class Replacement Requirement In The Prima Facie Stage Of Title Vii Individual Disparate Treatment Discrimination Claims, Marla Swartz Mar 2003

The Replacement Dilemma: An Argument For Eliminating A Non-Class Replacement Requirement In The Prima Facie Stage Of Title Vii Individual Disparate Treatment Discrimination Claims, Marla Swartz

Michigan Law Review

Although manifestations of discrimination in the workplace have changed greatly over time, employment discrimination continues to be a tremendous problem in society. By enacting Title VII of the Civil Rights Act of 1964 ("Title VII"), Congress shielded employees from arbitrary adverse employment actions arising from discrimination related to race, color, religion, sex, or national origin. Three years later, Congress passed the Age Discrimination in Employment Act ("ADEA"), guaranteeing the same protections against discrimination based on age.4 Finally, the Americans with Disabilities Act ("ADA"), passed in 1990, prohibited discrimination based on personal disability. Ten years after Congress enacted the Civil ...


Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert Jan 2003

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior ...


Expressivism, Empathy And Equality, Rachel D. Godsil Jan 2003

Expressivism, Empathy And Equality, Rachel D. Godsil

University of Michigan Journal of Law Reform

In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory ...


In The Supreme Court Of The United States Barbara Grutter, Petitioner, V. Lee Bollinger, Et Al., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit, Jerome S. Hirsch, Joseph N. Sacca, Scott D. Musoff, Mark Lebovitch, Linda M. Wayner Jan 2003

In The Supreme Court Of The United States Barbara Grutter, Petitioner, V. Lee Bollinger, Et Al., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit, Jerome S. Hirsch, Joseph N. Sacca, Scott D. Musoff, Mark Lebovitch, Linda M. Wayner

Michigan Journal of Gender & Law

Brief of the University of Michigan Asian Pacific American Law Students Association, the University of Michigan Black Law Students' Alliance, the University of Michigan Latino Law Students Association, and the University of Michigan Native American Law Students Association as Amici Curiae in Support of Respondents


Regulating Target Marketing And Other Race-Based Advertising Practices, Ross D. Petty, Anne-Marie G. Harris, Toni Broaddus, William M. Boyd Iii Jan 2003

Regulating Target Marketing And Other Race-Based Advertising Practices, Ross D. Petty, Anne-Marie G. Harris, Toni Broaddus, William M. Boyd Iii

Michigan Journal of Race and Law

Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to ...


The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie Jan 2003

The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie

Michigan Journal of International Law

This Note analyzes the Hungarian Status Law in the context of general principles of international law. By specifically examining the Hungarian minority, this Note questions whether the implementation of the Hungarian Status Law is the most effective method of ensuring the protection and respect of the Hungarian minority in Eastern Europe. The conclusion argues that the unilateral approach of the Hungarian Status Law should be abandoned for a bilateral approach to secure rights for the Hungarian minority.


The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan Jan 2003

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes ...


"The Implicit Association Test": A Measure Of Unconscious Racism In Legislative Decision-Making, Reshma M. Saujani Jan 2003

"The Implicit Association Test": A Measure Of Unconscious Racism In Legislative Decision-Making, Reshma M. Saujani

Michigan Journal of Race and Law

This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however ...


Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe Jan 2003

Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe

Michigan Journal of Race and Law

Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor ...


Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr Jan 2003

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be ...


Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz Jan 2003

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

Articles

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 ...


Equal Protection And Disparate Impact: Round Three, Richard A. Primus Jan 2003

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

Articles

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 ...