Law and Race Commons^™

Racial Targets, Atinuke O. Adediran

Northwestern University Law Review

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros

Northwestern Journal of Law & Social Policy

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools.

Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …

Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania

Northwestern University Law Review

The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is …

Racialized Tax Inequity: Wealth, Racism, And The U.S. System Of Taxation, Palma Joy Strand, Nicholas A. Mirkay

Northwestern Journal of Law & Social Policy

This Article describes the connection between wealth inequality and the increasing structural racism in the U.S. tax system since the 1980s. A long-term sociological view (the why) reveals the historical racialization of wealth and a shift in the tax system overall beginning around 1980 to protect and exacerbate wealth inequality, which has been fueled by racial animus and anxiety. A critical tax view (the how) highlights a shift over the same time period at both federal and state levels from taxes on wealth, to taxes on income, and then to taxes on consumption—from greater to less progressivity. Both of these …

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

NULR Online

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

"Our Taxes Are Too Damn High": Institutional Racism, Property Tax Assessment, And The Fair Housing Act, Bernadette Atuahene

Northwestern University Law Review

To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property’s market value. Between 2009 and 2015, the City of Detroit assessed 55%–85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan’s Wayne County where African-Americans comprise 70% or more of the population—Highland Park and Inkster—have similarly experienced systemic unconstitutional assessments and unprecedented …

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 treatment of statistical …

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting …

"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 …

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis Of The Role Of Racial Bias In Bond Decisions And Ideas For Reform, Lydette S. Assefa

Journal of Criminal Law and Criminology

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such …

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

Looking At Justice Through A Lens Of Healing And Reconnection, Annalise Buth, Lynn Cohn

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Expanding Our Conception Of Justice

Northwestern Journal of Law & Social Policy

No abstract provided.

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Professor Destiny Peery

Northwestern Journal of Law & Social Policy

No abstract provided.

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.

Reforming The Ranks: Policy Initiatives To Ensure Police Accountability & Improve Police And Community Relations

Northwestern Journal of Law & Social Policy

No abstract provided.

Building Movement: Racial Injustice, Transformative Justice And Reimagined Policing

Northwestern Journal of Law & Social Policy

No abstract provided.

Racing Abnormality, Normalizing Race: The Origins Of America's Peculiar Carceral State And Its Prospects For Democratic Transformation Today, Jonathan Simon

Northwestern University Law Review

For those struggling with criminal justice reform today, the long history of failed efforts to close the gap between the promise of legal equality and the practice of our police forces and prison systems can seem mysterious and frustrating. Progress has been made in establishing stronger rights for individuals in the investigatory and sanctioning stages of the criminal process; yet, the patterns of over-incarceration and police violence, which are especially concentrated on people of color, have actually gotten worse during the same period. Seen in terms of its deeper history however, the carceral state is no longer puzzling: it has …

Revisiting Law School Mismatch: A Comment On Barnes (2007, 2011), Doug Williams, Richard Sander, Marc Luppino, Roger Bolus

Northwestern University Law Review

No abstract provided.

Diversifying The Federal Bench: Is Universal Legitimacy For The U.S. Justice System Possible?, Nancy Scherer

Northwestern University Law Review

No abstract provided.