Law and Race Commons^™

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

The Impact Of Government Sponsored Segregation On Health Inequities: Addressing Death Gaps Through Reparations, Mariya Denisenko

Washington and Lee Law Review

Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.

Segregated Black communities struggle with economic inequality, environmental racism, and face …

Sheriffs, Shills, Or Just Paying The Bills?: Rethinking The Merits Of Compelling Merchant Cooperation With Third-Party Policing In The Aftermath Of George Floyd’S Death, Stephen Wilks

Washington and Lee Law Review

This Article frames the killing of George Floyd as the result of flawed business regulation. More specifically, it captures the expansion of third-party policing paradigms throughout local nuisance abatement regulations over a period of time that coincided with the militarization of policing culture across the United States. Premised on the notion that law enforcement alone cannot succeed in reducing crime and disorder, such regulations transform grocery stores, pharmacies, bars, and other retail spaces into surveillance hubs by prescribing situations that obligate businesses to contact the police. This regulatory framework, however, sustains the larger historical project of rationalizing enhanced scrutiny of …

Taking The Knee No More: Police Accountability And The Structure Of Racism, David Dante Troutt

Washington and Lee Law Review

From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through …

Higher Education Redress Statutes: A Critical Analysis Of States’ Reparations In Higher Education, Christopher L. Mathis

Washington and Lee Law Review

This Article introduces a novel concept, higher education redress statutes (“HERS”), to illustrate efforts that acknowledge and amend past wrongs towards African Americans. More proximally, the Article shines a probing light on the escalation of HERS in southeastern states that serve as a site for state regulation and monitoring. The Author exposes how higher education redress statutes, designed to provide relief or remedy to Black people for states’ higher education’s harm, categorically ignore groups of Black people who rightfully should also be members of the statutorily protected class. This Article queries whether legislators can expand the scope of such statutes …

Birthing Alone, Elizabeth Kukura

Washington and Lee Law Review

Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink …

(G)Local Intersectionality, Martha F. Davis

Washington and Lee Law Review

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of …

Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson

Washington and Lee Law Review

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the …

Foreword: Centering Intersectionality In Human Rights Discourse, Johanna Bond

Washington and Lee Law Review

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between …

Comment: Understanding Xenophobia As Intersectional Discrimination, Shreya Atrey

Washington and Lee Law Review

This Comment examines the nature of xenophobia and why it seems to fall through the cracks of international human rights law, especially as a form of racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination. It considers an understanding of xenophobia as a sui generis case of intersectional discrimination because it has to do with racial grounds but also perhaps other grounds (such as nationality, religion, language, culture, and class), which makes it difficult to disentangle the basis of xenophobic discrimination as based on strictly racial grounds alone.

Honoring Lutie A. Lytle And John Mercer Langston With Our Words, Carliss Chatman

Washington and Lee Law Review

The recent attacks on critical race theory make one fact very clear: the lack of Black voices in public discourse creates distortion and exploitation. This inaugural Black Scholars Book, the first of its kind published annually, is not about defining or justifying critical race theory—as some scholars in this book would not deem themselves to be critical race theorists. Instead, it is about righting the wrongs that enable the weaponization of scholarship by and about Black people. The goal of the W&L Law Review is to hold space for scholarship of historically marginalized and silenced voices. This inaugural book contains …

The Golem In The Machine: Ferpa, Dirty Data, And Digital Distortion In The Education Record, Najarian R. Peters

Washington and Lee Law Review

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history …

Whiteness As Contract, Marissa Jackson Sow

Washington and Lee Law Review

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Deportation And Depravity: Does Failure To Register As A Sex Offender Involve Moral Turpitude?, Rosa Nielsen

Washington and Lee Law Review

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes …

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Say The Magic Words: Establishing A Historically Informed Standard To Prevent Partisanship From Shielding Racial Gerrymanders From Federal Judicial Review, Emily K. Dalessio

Washington and Lee Law Review

In its 2019 decision in Rucho v. Common Cause, the Supreme Court closed the doors of the federal courts to litigants claiming a violation of their constitutional rights based on partisan gerrymandering. In Rucho, the Court held that partisan gerrymandering presents a political question that falls outside the jurisdiction of the federal courts. However, the Supreme Court did not address an insidious consequence of this ruling: namely, that map-drawers may use partisan rationales to obscure what is otherwise an unconstitutional racial gerrymander. This Note uses North Carolina as an example of a state with a long history of …