Law and Race Commons^™

Through A Glass, Darkly: Systemic Racism, Affirmative Action, And Disproportionate Minority Contact, Robin Walker Sterling

Michigan Law Review

This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

On Time, (In)Equality, And Death, Fred O. Smith Jr.

Michigan Law Review

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …

Municipal Reparations: Considerations And Constitutionality, Brooke Simone

Michigan Law Review

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow …

The Ban And Its Enduring Bandwidth, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay is a contribution the Michigan Journal of Race & Law’s special issue marking the 20th anniversary of September 11, 2001 and the ensuing War on Terror. It reflects on Executive Order 13769, widely known as the “Muslim Ban,” years after it was signed into law, as an extra-legal catalyst of state-sponsored and private Islamophobia that unfolded outside of the United States.

Black Lawyers Matter: Enduring Racism In American Law Firms, Vitor M. Dias

University of Michigan Journal of Law Reform

Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession?

In this Article, I address this question drawing upon data from the first nationally representative, longitudinal …

Blue Racing: The Racialization Of Police In Hate Crime Statutes, Christopher Williams

University of Michigan Journal of Law Reform

Content warning: this Article discusses police brutality.

The relationship between race, law, and policing is one that has been analyzed by many scholars throughout U.S. history. The vast majority of research about police has highlighted policing in relation to groups they police, focusing on areas such as policing practices, policies, or involvement in the racialization of minority groups. This scholarship has far outpaced research on actions taken by law enforcement on behalf of law enforcement— specifically, how law enforcement engages in racialization out of self-interest. A better understanding of the ways in which law enforcement engages in racialization that is …

The Enemy Is The Knife: Native Americans, Medical Genocide, And The Prohibition Of Nonconsensual Sterilizations, Sophia Shepherd

Michigan Journal of Race and Law

This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. …

Law In The Shadows Of Confederate Monuments, Deborah R. Gerhardt

Michigan Journal of Race and Law

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily …

State Sponsored Radicalization, Sahar F. Aziz

Michigan Journal of Race and Law

Where was the FBI in the months leading up to the violent siege on the U.S. Capitol in 2021? Among the many questions surrounding that historic day, this one reveals the extent to which double standards in law enforcement threaten our nation’s security. For weeks, Donald Trump’s far right-wing supporters had been publicly calling for and planning a protest in Washington, D.C. on January 6, the day Congress was to certify the 2021 presidential election results. Had they been following credible threats to domestic security, officials would have attempted to stop the Proud Boys and QAnon from breaching the Capitol …

American Informant, Ramzi Kassem

Michigan Journal of Race and Law

Part of my childhood was spent in Baghdad, Iraq, during the rule of Saddam Hussein. At that time, the regime offered free and universal education and healthcare. Literacy rates in the country surpassed much of the Arabic-speaking world and, indeed, the Global South. As the celebrated Egyptian intellectual, Taha Hussein, famously put it: “Cairo writes; Beirut prints; and Baghdad reads.” Booksellers were everywhere in Baghdad. Its people read voraciously and passionately debated literature, poetry, and a range of other subjects.

But what struck me, even as a child, was the absence of sustained talk about politics in bookshops, markets, and …

A Religious Double Standard: Post-9/11 Challenges To Muslims’ Religious Land Usage, Asma T. Uddin

Michigan Journal of Race and Law

Muslims in the United States face real limits on their religious freedom. Numerous influential individuals and organizations even posit that Islam is not a religion and that, therefore, Muslims do not have rights to religious freedom. The claim is that Islam is a political ideology that is intent on taking over the country and subverting Americans’ constitutional rights. This narrative has gained momentum since the attacks of September 11, 2001 and continues to be amplified and disseminated by a well-funded cadre of anti-Muslim agitators. One area where its effects can be seen clearly is in religious land use, where a …

9/11 Impacts On Muslims In Prison, Spearit

Michigan Journal of Race and Law

It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels …

Material Support Prosecutions And Their Inherent Selectivity, Wadie E. Said

Michigan Journal of Race and Law

The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory …

The World Of Private Terrorism Litigation, Maryam Jamshidi

Michigan Journal of Race and Law

Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing …

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

Articles

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.

Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond

Michigan Law Review

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

Debt To Society: The Role Of Fines & Fees Reform In Dismantling The Carceral State, Wesley Dozier, Daniel Kiel

University of Michigan Journal of Law Reform

Fines and fees that result from contact with the criminal legal system serve as a suffocating debt for those against whom they are assessed. Many states have countless laws that require taxes, fines, and fees to be assessed against individuals involved in the criminal legal system at various stages of the criminal legal process, and they have the effect of permanently trapping individuals within the system. In Tennessee, for example, these debts, which can accumulate to over $10,000 in a single criminal case, stand in the way of individuals getting their criminal records expunged, keeping valid driver’s licenses, and restoring …

Remarks, Lisa Foster

University of Michigan Journal of Law Reform

In both Greek and Roman mythology, a Hydra guards the entrance to the underworld. For those who don’t remember their mythology, a Hydra is a multi-headed serpent who exhales poisonous fumes. If you get close enough to the Hydra and are able to cut off one of its heads, two grow back in its place. Slaying the Hydra was number two on Hercules’ famous list of Labors. He was successful, but not without a fierce struggle.

As you’ve heard over the last four days, fines and fees are Hydralike. Fines are imposed for almost every minor offense — misdemeanors, infractions, …

Fee Simple Failures: Rural Landscapes And Race, Jessica A. Shoemaker

Michigan Law Review

Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of …

White Tape And Indian Wards: Removing The Federal Bureaucracy To Empower Tribal Economies And Self-Government, Adam Crepelle

University of Michigan Journal of Law Reform

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources.

This Article asserts the federal regulatory “white …

How The Supreme Court Can Improve Educational Opportunities For African American And Hispanic Students By Ruling Against Harvard College’S Use Of Race Data, Genevieve Kelly

University of Michigan Journal of Law Reform Caveat

Students for Fair Admissions v. Harvard has not only exposed ways in which Harvard College’s admissions office unfairly assesses Asian American applicants, but it has also revealed that Harvard’s fixation on race per se can disadvantage the very African American and Hispanic students best positioned to bring instructive and underrepresented perspectives to the college. The facts show that Harvard’s “tips” and “one-pager” system values African American and Hispanic students for their ability to boost Harvard’s racial profile more than for their actual experiences confronting racial discrimination. This Comment explains how, by ruling against Harvard (and without overruling Grutter or Fisher …

A Different Type Of Property: White Women And The Human Property They Kept, Michele Goodwin

Michigan Law Review

A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.

The "Innocence" Of Bias, Osamudia James

Michigan Law Review

A Review of Biased: Uncovering the Hidden Prejudices that Shapes What We See, Think, and Do. by Jennifer L. Eberhardt.

Affirmative Inaction: A Quantitative Analysis Of Progress Toward “Critical Mass” In U.S. Legal Education, Loren M. Lee

Michigan Law Review

Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note’s quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of …

The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown

Michigan Journal of Race and Law

Note: Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the …

“We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach To Remedying The Trump Administration’S Cancellation Of Tps Protections For Haitians, Sarah E. Baranik De Alarcón, David H. Secor, Norma Fuentes-Mayorga

Michigan Journal of Race and Law

This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the …

How To Sue An Asue? Closing The Racial Wealth Gap Through The Transplantation Of A Cultural Institution, Cyril A.L. Heron

Michigan Journal of Race and Law

Asues, academically known as Rotating Savings and Credit Associations (or ROSCAs for short), are informal cultural institutions that are prominent in developing countries across the globe. Their utilization in those countries provide rural and ostracized communities with a means to save money and invest in the community simultaneously. Adoption of the asue into the United States could serve as the foundation by which to close the racial wealth gap. Notwithstanding the benefits, wholesale adoption of any asue model runs the risk of cultural rejection because the institution is foreign to the African American community.

Drawing upon principles of cultural and …

In Fear Of Black Revolutionary Contagion And Insurrection: Foucault, Galtung, And The Genesis Of Racialized Structural Violence In American Foreign Policy And Immigration Law, Ciji Dodds

Michigan Journal of Race and Law

This article investigates the power relation between the political anatomy of the Black soul and non-somatic expressions of white supremacy-based violence. Utilizing Michel Foucault’s theories of discipline and punishment in conjunction with Johan Galtung’s theory of structural violence, I posit that the exercise of state-sanctioned discipline and punishment in furtherance of white supremacy constitutes racialized structural violence. Thus, this article contributes to the current public discourse concerning the role white supremacy plays in America by establishing a new construct that can be used to dissect the nature of racial oppression.

Furthermore, this article analyzes the genesis and construction of racialized …