Law Commons^™

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

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 that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

On Brown V. Board Of Education's 50th Anniversary: To Integrate Or Separate Is Not The Question

Thomas Kleven

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in …

De Recto, De Jure, Or De Facto: Another Look At The History Of U.S./Tribal Relations, Marren Sanders

Marren Sanders

The history of relations between the United States and Native nations is often divided by scholars into specific eras defined by the Congressional policy in force at the time. Each federal policy had profound consequences for tribes and their sovereign ability to manage their lands and resources. This article surveys the history of U.S./tribal relations through the lens of the Professors Joseph Kalt and Joseph William Singer’s scheme of tribal sovereignty. Part I looks at how tribal sovereign rights to manage their people, lands, and resources have been recognized in varying degrees since the time of first contract with European …

Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, William Corbett

William R. Corbett

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment …

Critical Race Histories: In And Out, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado

Richard Delgado

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases. In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own legitimacy? Professor Delgado examines …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Racial Exhaustion, Darren Hutchinson

Darren L Hutchinson

This Article examines historical and contemporary race discourse contained in political and juridical sources in order to illustrate how opponents to racial egalitarian measures have frequently contested such policies on the grounds that they are redundant, unnecessary, or too burdensome or taxing. Racial exhaustion rhetoric has operated as a persistent discursive instrument utilized to contest claims of racial injustice and to resist the enactment of racial egalitarian legislation. Racial exhaustion rhetoric has enjoyed particular force during and immediately following periods of mass political mobilization by antiracist social movements and institutional political actors, and it retains potency in contemporary racial discourse. …

Law School Legends On Audio Cd: Immigration Law, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Reparations: A Remedies Law Perspective, Darren Hutchinson

Darren L Hutchinson

This article provides a general overview of reparations discourse in the United States and offers suggestions concerning how advocates of reparations might frame their claims. The author discusses how remedies law might be a useful means of redress for litigants and examines some of the political and legal barriers to reparations in the United States. The barriers include the failure of opponents to treat remedies for gross human rights or civil rights deprivations as a public good, rather than as a series of private transactions that benefit or burden individuals. The author ultimately sets the litigation model aside as providing …

Majority Politics And Race Based Remedies, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Factless Jurisprudence, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren Hutchinson

Darren L Hutchinson

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment's Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Progressive Race Blindness: Individual Identity, Group Politics, And Reform, Darren Hutchinson

Darren L Hutchinson

Critical Race Theorists advance race consciousness as a positive instrument for political and legal reform. A growing body of works by left-identified scholars, however, challenges this traditional progressive stance toward race consciousness.

After summarizing the contours of this budding literature, this Article criticizes the "progressive race blindness" scholarship on several grounds and offers an alternative approach to race consciousness that balances skepticism towards the naturalness of race with a healthy appreciation of the realities of racial subjugation and identity.

New Complexity Theories: From Theoretical Innovation To Doctrinal Reform, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Closet Case: Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren Hutchinson

Darren L Hutchinson

This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay lesbian, bisexual, and transgender individuals.

Identity Crisis: Intersectionality, Multidimensionality, And The Development Of An Adequate Theory Of Subordination, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Ignoring The Sexualization Of Race: Heteronormativity, Critical Race Theory And Anti-Racist Politics, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Hutchinson

Darren L Hutchinson

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren Hutchinson

Darren L Hutchinson

No abstract provided.