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Full-Text Articles in Law and Race

Equal Protection Under The Carceral State, Aya Gruber Jan 2018

Equal Protection Under The Carceral State, Aya Gruber

Articles

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 ...


Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton Jan 2016

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Articles

No abstract provided.


From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart Jan 2015

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Articles

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs ...


Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart Jan 2013

Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart

Articles

Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This article ...


Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux Jan 2011

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Articles

No abstract provided.


From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart Jan 2011

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Articles

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the Court's ...


Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks Jan 2010

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Articles

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent ...


The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton Jan 2010

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

Articles

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent ...


Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart Jan 2009

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Articles

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five ...


Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya Jan 2007

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

Articles

No abstract provided.


Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber Jan 2006

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Articles

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense ...


Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton Jan 2005

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Articles

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter Jan 2005

Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter

Articles

No abstract provided.


Note, Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen Jan 2004

Note, Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Articles

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.


Diversity And The Practice Of Interest Assessment, Robert F. Nagel Jan 2004

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Articles

No abstract provided.


Beyond Indian Law: The Rehnquist Court’S Pursuit Of States’ Rights, Color-Blind Justice And Mainstream Values, David H. Getches Jan 2001

Beyond Indian Law: The Rehnquist Court’S Pursuit Of States’ Rights, Color-Blind Justice And Mainstream Values, David H. Getches

Articles

No abstract provided.


Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel Jan 2000

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

Articles

No abstract provided.


Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya Jan 1997

Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya

Articles

No abstract provided.


Affirmative Action As A Women's Issue, Helen Norton Jan 1995

Affirmative Action As A Women's Issue, Helen Norton

Articles

No abstract provided.


Shaw V. Reno: On The Borderline, Emily Calhoun Jan 1993

Shaw V. Reno: On The Borderline, Emily Calhoun

Articles

No abstract provided.


Peremptory Challenges: Free Strikes No More, H. Patrick Furman Jan 1993

Peremptory Challenges: Free Strikes No More, H. Patrick Furman

Articles

No abstract provided.


A Tribute To Thurgood Marshall, Peter N. Simon Jan 1993

A Tribute To Thurgood Marshall, Peter N. Simon

Articles

No abstract provided.


Batson V. Kentucky: Curing The Disease But Killing The Patient, William T. Pizzi Jan 1987

Batson V. Kentucky: Curing The Disease But Killing The Patient, William T. Pizzi

Articles

No abstract provided.


The Thirteenth And Fourteenth Amendments: Constitutional Authority For Federal Legislation Against Private Sex Discrimination, Emily Calhoun Jan 1977

The Thirteenth And Fourteenth Amendments: Constitutional Authority For Federal Legislation Against Private Sex Discrimination, Emily Calhoun

Articles

No abstract provided.


Comment, Federal Removal And Injunction To Protect Political Expression And Racial Equality: A Proposed Change, Christopher B. Mueller Jan 1969

Comment, Federal Removal And Injunction To Protect Political Expression And Racial Equality: A Proposed Change, Christopher B. Mueller

Articles

No abstract provided.