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What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias Aug 2019

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


Arlington Heights Won In The Supreme Court But The Fair Housing Act’S Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose Jan 2019

Arlington Heights Won In The Supreme Court But The Fair Housing Act’S Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose

Touro Law Review

No abstract provided.


Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger Jun 2018

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state.

Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority.

The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in ...


What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky Jun 2018

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


Equal Protection And White Supremacy, Paul Butler Jun 2018

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the ...


"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost Jun 2018

"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost

Northwestern University Law Review

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that ...


Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter Jun 2018

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter

Northwestern University Law Review

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants.

Chief Justice Rehnquist’s disparate ...


A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden Jan 2018

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Buck V. Davis: Anti-Discriminatory Principles In Habeas Corpus Cases, Daniella Rubin Jan 2018

Buck V. Davis: Anti-Discriminatory Principles In Habeas Corpus Cases, Daniella Rubin

Loyola of Los Angeles Law Review

No abstract provided.


Fairness Over Finality: Peña-Rodriguez V. Colorado And The Right To An Impartial Jury, Katherine Brosamle Jan 2018

Fairness Over Finality: Peña-Rodriguez V. Colorado And The Right To An Impartial Jury, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.


Bank Of America V. City Of Miami: Standing And Causation Under The Fair Housing Act, Alan M. White Jan 2018

Bank Of America V. City Of Miami: Standing And Causation Under The Fair Housing Act, Alan M. White

Loyola of Los Angeles Law Review

No abstract provided.


Toward A Fundamental Right To Evade Law? The Rule Of Power In Shelby County And State Farm, Martha T. Mccluskey Nov 2017

Toward A Fundamental Right To Evade Law? The Rule Of Power In Shelby County And State Farm, Martha T. Mccluskey

Martha T. McCluskey

No abstract provided.


From Slavery To Hip-Hop: Punishing Black Speech And What’S “Unconstitutional” About Prosecuting Young Black Men Through Art, Donald F. Tibbs, Shelly Chauncey Jan 2016

From Slavery To Hip-Hop: Punishing Black Speech And What’S “Unconstitutional” About Prosecuting Young Black Men Through Art, Donald F. Tibbs, Shelly Chauncey

Washington University Journal of Law & Policy

This Article, by Professor Donald F. Tibbs and third-year law student Shelly Chauncey, both from the Thomas R. Kline School of Law at Drexel University, addresses the disproportionate targeting and convictions of the African American community through the lens of the “hip-hop” generation. Tibbs and Chauncey show how the prosecutorial use of rap videos and lyrics serves to criminalize Black males within the larger context of policing Black speech in American law. The authors argue that this process is rooted in racial bias toward young Black men and serves no legitimate place in their prosecution.


Placing "Rights And Liberties In Pawn Until The Defeat Of Hitlerism”: Canadian Intelligence Gathering In The Second World War, Austin M H Williams Sep 2015

Placing "Rights And Liberties In Pawn Until The Defeat Of Hitlerism”: Canadian Intelligence Gathering In The Second World War, Austin M H Williams

The Great Lakes Journal of Undergraduate History

Abstract:

A monograph regarding the history of Canada’s intelligence gathering apparatus has not been published, leaving a gap in modern historiography. In an attempt to partially fill this academic void, this essay examines RCMP intelligence Bulletins drafted during World War Two that have been declassified under the Access to Information Act. Analysis of the Bulletins clearly indicates the Canadian intelligence gathering apparatus underwent a massive expansion of scope during the war. The RCMP began investigating people and organizations based upon their race, religion, political affiliation or nationalist beliefs. Disregard of human rights and privacy during the period was so ...


The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz Aug 2015

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Sahar F. Aziz

No abstract provided.


Transformation: Turning Section 2 Of The Voting Rights Act Into Something It Is Not, J. Christian Adams May 2015

Transformation: Turning Section 2 Of The Voting Rights Act Into Something It Is Not, J. Christian Adams

Touro Law Review

No abstract provided.


Voter Rights And Civil Rights Era Cold Cases: Section Five And The Five Cities Project, Paula C. Johnson May 2015

Voter Rights And Civil Rights Era Cold Cases: Section Five And The Five Cities Project, Paula C. Johnson

Journal of Race, Gender, and Ethnicity

No abstract provided.


An “Equal Sovereignty” Principle Born In Northwest Austin, Texas, Raised In Shelby County, Alabama, David Kow Apr 2015

An “Equal Sovereignty” Principle Born In Northwest Austin, Texas, Raised In Shelby County, Alabama, David Kow

Journal of Race, Gender, and Ethnicity

No abstract provided.


The Path Forward From Shelby County V. Holder, Janet W. Steverson Apr 2015

The Path Forward From Shelby County V. Holder, Janet W. Steverson

Journal of Race, Gender, and Ethnicity

No abstract provided.


Grandpa, Charles Walker Apr 2015

Grandpa, Charles Walker

Journal of Race, Gender, and Ethnicity

No abstract provided.


Arc Of Injustice: Pre- And Post-Decision Thoughts On Shelby County V. Holder, Janai S. Nelson Apr 2015

Arc Of Injustice: Pre- And Post-Decision Thoughts On Shelby County V. Holder, Janai S. Nelson

Journal of Race, Gender, and Ethnicity

No abstract provided.


A Fugitive From The Camp Of The Conquerors: The Revival Of Equal Sovereignty Doctrine In Shelby County V. Holder, Vik Kanwar Apr 2015

A Fugitive From The Camp Of The Conquerors: The Revival Of Equal Sovereignty Doctrine In Shelby County V. Holder, Vik Kanwar

Journal of Race, Gender, and Ethnicity

No abstract provided.


On The Repeal Of The Voting Rights Act And The Breadth Of The Long Counter Revolution, Ifetayo M. Flannery Apr 2015

On The Repeal Of The Voting Rights Act And The Breadth Of The Long Counter Revolution, Ifetayo M. Flannery

Journal of Race, Gender, and Ethnicity

No abstract provided.


The Post-Shelby County Game, Steven R. Morrison Apr 2015

The Post-Shelby County Game, Steven R. Morrison

Journal of Race, Gender, and Ethnicity

No abstract provided.


After Nfib V. Sebelius, When Does The Cost Of Voting Become An Illegal Poll Tax?, Andre L. Smith Apr 2015

After Nfib V. Sebelius, When Does The Cost Of Voting Become An Illegal Poll Tax?, Andre L. Smith

Journal of Race, Gender, and Ethnicity

No abstract provided.


Toward A Fundamental Right To Evade Law? The Rule Of Power In Shelby County And State Farm, Martha T. Mccluskey Apr 2015

Toward A Fundamental Right To Evade Law? The Rule Of Power In Shelby County And State Farm, Martha T. Mccluskey

Journal of Race, Gender, and Ethnicity

No abstract provided.


Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity Apr 2015

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Journal of Race, Gender, and Ethnicity

No abstract provided.


The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz Apr 2015

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Journal of Race, Gender, and Ethnicity

No abstract provided.


One Step Forward, Two Steps Backward: How The Supreme Court’S Decision In Shelby County V. Holder Eviscerated The Voting Rights Act And What Civil Rights Advocates Should Do About It, Pamela Edwards Apr 2015

One Step Forward, Two Steps Backward: How The Supreme Court’S Decision In Shelby County V. Holder Eviscerated The Voting Rights Act And What Civil Rights Advocates Should Do About It, Pamela Edwards

Journal of Race, Gender, and Ethnicity

No abstract provided.


Unseen Exclusions In Voting And Immigration Law, César Cuauhtémoc García Hernández Apr 2015

Unseen Exclusions In Voting And Immigration Law, César Cuauhtémoc García Hernández

Journal of Race, Gender, and Ethnicity

No abstract provided.