Law and Race Commons^™

"Just Another Little Black Boy From The South Side Of Chicago": Overcoming Obstacles And Breaking Down Barriers To Improve Diversity In The Law Professoriate, Michael Z. Green

Faculty Scholarship

As I reflected on my personal experience to help address the persistence of discrimination in legal academia, I chose to focus on five areas of discussion for the open mic portion of the program held at the Association of American Law Schools Cross-Cutting Program, “The More Things Change ...: Exploring Solutions to Persistent Discrimination in Legal Academia,” held on January 4, 2015, in Washington, D.C. First, I decided to address my personal development as an only child and male in a family of mostly black women struggling through the socioeconomic challenges of being poor and black. To add to that …

Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman

Faculty Scholarship

Racial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared …

Reparations For Slavery And Jim Crow, Its Assumptions And Implications, David B. Lyons

Faculty Scholarship

This paper develops the case for reparations to African Americans today, based on wrongdoing that began with slavery, that was not repaired by Reconstruction, that was continued in new forms under Jim Crow, and that left a deeply-entrenched legacy of disadvantage despite civil rights reforms of the twentieth century. It reviews relevant aspects of U.S. history and policies since 1607 and lays out the moral considerations that call for a system of reparations far beyond anything yet contemplated by American society. It argues that cash payments, while needed, would not suffice, because slavery and Jim Crow were not just a …

Book Review: The Color Of Our Shame: Race And Justice In Our Time, By Christopher J. Lebron, David B. Lyons

Faculty Scholarship

Ideal theory seeks to identify the basic conditions of social justice but does not tell us how to achieve them. Christopher Lebron’s important new book The Color of Our Shame is a philosophically enterprising venture in non-ideal theory, suggesting how we might bring about racial equality in America. A reader who is passingly familiar with civil rights developments of the 1950s and 1960s might imagine that racial inequality is a disappearing vestige of past discrimination; so an essential step in Christopher Lebron’s argument is to establish that racial inequality remains a grave issue half a century later. That task is …

Michael Brown, Eric Garner, And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

Threshold Liberty, Dawinder S. Sidhu

Faculty Scholarship

To ensure that the Thirteenth Amendment has modern application in a manner consistent with these important constitutional considerations and these cases, the Amendment should no longer be interpreted to prohibit the “badges and incidents” of slavery, a non-textual category of harms that is virtually limitless in scope and is therefore virtually limitless as a source of congressional action. Instead, drawing from the Amendment’s textual prohibitions against “slavery” and “involuntary servitude,” direct or functional limitations on physical mobility should be the touchstone for the enforcement power moving forward. To justify this proposal, this Article summarizes the Supreme Court’s Thirteenth Amendment jurisprudence, …

Richard Delgado And Ice Cube: Brothers In Arms, André Douglas Pond Cummings

Faculty Scholarship

Critical Race Theory as a movement is best understood through the lens of founding voice Richard Delgado. Delgado’s prolific and fearless writings have inspired thousands and launched theories that have literally changed the course of race law in the United States. In fact, two explosive movements were born in the United States in the 1970s. While the founding of both movements was humble and lightly noticed, both grew to become global phenomena that have profoundly changed the world. Founded by prescient agitators, these two movements were borne of disaffect, disappointment, and near desperation — a desperate need to give voice …

Racial Mirroring, Dawinder S. Sidhu

Faculty Scholarship

“Racial mirroring” refers to efforts by one group to match the primary racial composition of another group. In contrast to racial balancing, which takes place when two groups are adjusted simultaneously to achieve a desired degree of racial equilibrium between them, racial mirroring occurs when the racial makeup of one group is adjusted so as to reflect the predominant racial identity of the second group. Employers and even federal courts engage in racial mirroring. For example, in order to generate trust among customers, employers have hired or promoted individuals of the same race as the employers’ primary customer base. Further, …

We All Do It: Unconscious Behavior, Bias, And Diversity, Ronald E. Wheeler

Faculty Scholarship

Mr. Wheeler suggests that many of our behaviors, in the workplace and elsewhere, are motivated by unconscious triggers and emotions, including racial biases. These behaviors, however, can be prevented by making conscious choices that enhance diversity.

Fairly Assessing Risk And Recidivism, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

The Sikh's Public Relations Problem, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Segregating Workplaces By Religion, Dawinder S. Sidhu

Faculty Scholarship

Many employers use dress codes to keep visibly religious employees out of sight. Now, the Supreme Court has a chance to end the practice.

Obama's Looming Legal Trap In Afghanistan, Dawinder S. Sidhu

Faculty Scholarship

The president may create another Guantanamo -- in Afghanistan. Here's why it could backfire on him in a big way.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Faculty Scholarship

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

Holt V. Hobbs: Does A Muslim Prisoner’S Case Foreshadow The End Of Affirmative Action?, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Victim Or Thug? Examining The Relevance Of Stories In Cases Involving Shootings Of Unarmed Black Males, Sherri Keene

Faculty Scholarship

No abstract provided.

Race, Place And Historic Moment – Black And Japanese American World War Ii Veterans: The G.I. Bill Of Rights And The Model Minority Myth, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same.

Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter …

Colorism And The Law In Latin America—Global Perspectives On Colorism Conference Remarks, Tanya K. Hernandez

Faculty Scholarship

Today, persons of African descent make up more than forty percent of the poor in Latin America and have been consistently marginalized and denigrated as undesirable elements of the society since the abolition of slavery across the Americas. However, Latin Americans still very much adhere to the notion that, because racial mixture and the absence of Jim-Crow racial segregation are such a marked contrast to the United States’ racial history, the region is what I term “racially innocent” and thus resistant to proposals that institutions use public policies of inclusion to address the entrenched racial disparities. This resistance exists despite …

Foreword: Reflections On Our Founding, Guy-Uriel Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was …

Spatial Terrorism, Dawinder S. Sidhu

Faculty Scholarship

Terrorism, under federal law, generally means an act of politically- or socially-motivated violence perpetrated against innocents. Terrorism within the meaning of federal law, in other words, exists only if a cognizable motive is uncovered. This definition also sees the United States as an undifferentiated landscape—by its own terms, it fails to take into account any geographic nuance in acts of mass violence. This Article suggests that spatial considerations are relevant in determining whether an act of mass violence constitutes an act of terrorism for purposes of federal law. It points to cities—which are characterized by a highly concentrated, fluid population, …

Moneyball Sentencing, Dawinder S. Sidhu

Faculty Scholarship

Sentencing is a backward- and forward-looking enterprise. That is, sen-tencing is informed by an individual’s past conduct as well as by the criminal jus-tice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statisti-cal technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of …

Say Her Name: Resisting Police Brutality Against Black Women, Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, Luke Harris

Faculty Scholarship

Say Her Name sheds light on Black women’s experiences of police violence in an effort to support a gender-inclusive approach to racial justice that centers all Black lives equally. It is our hope that this document will serve as a tool for the resurgent racial justice movement to mobilize around the stories of Black women who have lost their lives to police violence ...Our goal is not to offer a comprehensive catalog of police violence against Black women – indeed, it would be impossible to do so as there is currently no accurate data collection on police killings nationwide, no …

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply …

Black Girls Matter: Pushed Out, Overpoliced And Underprotected, Kimberlé W. Crenshaw, Priscilla Ocen, Jyoti Nanda

Faculty Scholarship

For girls, as with boys, the failure to receive a high school diploma often places individuals on a pathway to low-wage work, unemployment, and incarceration. The imposition of harsh disciplinary policies in public schools is a well-known risk factor for stunted educational opportunities for Black and Latino boys. Such punishments also negatively affect their female counterparts, as do other conditions in zero-tolerance schools. Yet, the existing research, data, and public policy debates often fail to address the degree to which girls face risks that are both similar to and different from those faced by boys.

This silence about at-risk girls …