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Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel 2018 University of Michigan Law School

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the ...


Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks 2018 University of Michigan Law School

Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks

Michigan Journal of Race and Law

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting ...


Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins 2018 Rutgers Law School

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine ...


The Case Against Police Militarization, Eliav Lieblich, Adam Shinar 2018 Tel Aviv University

The Case Against Police Militarization, Eliav Lieblich, Adam Shinar

Michigan Journal of Race and Law

We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization.

This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is ...


The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler 2018 Northwestern Pritzker School of Law

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional ...


“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act, Allison Krause Elder 2018 Northwestern Pritzker School of Law

“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act, Allison Krause Elder

Northwestern Journal of Law & Social Policy

In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the ...


Equal Work, Stephanie Bornstein 2018 University of Maryland Francis King Carey School of Law

Equal Work, Stephanie Bornstein

Maryland Law Review

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually ...


A Tribute To Hope Lewis, Karen E. Bravo 2018 Indiana University Robert H. McKinney School of Law

A Tribute To Hope Lewis, Karen E. Bravo

Georgia Journal of International & Comparative Law

No abstract provided.


Disenfranchisement 2.0: Recent Voter Id Laws And The Implications Thereof, Erin A. Penrod 2018 University of St. Thomas, Minnesota

Disenfranchisement 2.0: Recent Voter Id Laws And The Implications Thereof, Erin A. Penrod

University of St. Thomas Law Journal

No abstract provided.


The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White 2018 College of William & Mary Law School

The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White

William & Mary Journal of Women and the Law

No abstract provided.


Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington 2018 University of Maryland Francis King Carey School of Law

Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington

Maryland Law Review

No abstract provided.


Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz 2018 Syracuse University

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts ...


Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu 2018 St. Mary's University School of Law

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell 2018 Indiana University Maurer School of Law

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors ...


The School To Deportation Pipeline, Laila L. Hlass 2018 Tulane University

The School To Deportation Pipeline, Laila L. Hlass

Georgia State University Law Review

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes.

Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves ...


Transcending Through Education: Noah Kilroy, Rwu Class Of 2013 5-2018, Roger Williams University School of Law 2018 Roger Williams University

Transcending Through Education: Noah Kilroy, Rwu Class Of 2013 5-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing 2018 University of San Francisco

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems ...


The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin 2018 University of Pennsylvania Law School

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

Fordham Law Review

This Essay reconsiders or reaffirms the Lovings’ status as civil rights icons by drawing on source material provided by the documentary The Loving Story. This nonfiction treatment of the couple and their lawsuit reveals their complexity as individuals and as a couple, the social relationships that made them desperate to live together and raise their children in Virginia, and the oppression they suffered at the hands of state actors motivated by a virulent white supremacy to make the Lovings’ desire to make a home for themselves in the state impossible. Part I briefly describes the Lovings’ struggle against Virginia’s ...


Foreword, R.A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile 2018 Fordham University School of Law

Foreword, R.A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile

Fordham Law Review

This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of issues ...


Loving’S Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray 2018 University of California, Berkeley, School of Law

Loving’S Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray

Fordham Law Review

2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years ...


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