Grutter's Denouement: Three Templates From The Roberts Court, 2013 University of Michigan Law School
Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz
Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of ...
A Cure Worse Than The Disease?, 2013 University of Michigan Law School
A Cure Worse Than The Disease?, Ellen D. Katz
The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.
What Was Wrong With The Record?, 2013 University of Michigan Law School
What Was Wrong With The Record?, Ellen D. Katz
Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, 2013 University of Michigan Law School
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes ...
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, 2013 University of Michigan Law School
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi
In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising ...
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, 2013 University of Michigan Law School
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal ...
Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, 2013 University of Michigan Law School
Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger
For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.
Leniency As A Miscarriage Of Race And Gender Justice, 2013 University of Colorado Law School
Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber
No abstract provided.
Considering Class: College Access And Diversity, 2013 Center for College and Career Success
Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart
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 ...
The Significance Of Skin Color In Asian And Asian-American Communities: Initial Reflections, Trina Jones
No abstract provided.
Neofeminism, 2013 University of Colorado Law School
Neofeminism, Aya Gruber
Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice ...
Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, 2013 University of Colorado Law School
Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee
The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges ...
The Dangerous Law Of Biological Race, 2013 Boston Univeristy School of Law
The Dangerous Law Of Biological Race, Khiara Bridges
The idea of biological race -- a conception of race that postulates that racial groups are distinct, genetically homogenous units -- has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination ...
Growing Inequality And Racial Economic Gaps, 2013 Texas A&M University School of Law
Growing Inequality And Racial Economic Gaps, Thomas W. Mitchell
Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a ...
Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , 2013 University of Michigan Law School
Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , Adam Wright
Michigan Journal of Race and Law
No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public benefits to immigrants unlawfully ...
Introduction: "A Radical Notion Of Democracy": Law, Race And Albion Tourgee, 1865-1905, 2012 UNC-Chapel Hill
Introduction: "A Radical Notion Of Democracy": Law, Race And Albion Tourgee, 1865-1905, Sally Greene
Introduction to proceedings from symposium on Albion Tourgee.
"Simple" Takes On The Supreme Court, 2012 American University
"Simple" Takes On The Supreme Court, Robert Tsai
Robert L Tsai
This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably ...
Postracialism: Race After Exclusion, 2012 Chapman University Dale E. Fowler School of Law
Postracialism: Race After Exclusion, Janine Young Kim
Social Change Requires Civic Infrastructure, 2012 Howard University School of law
Social Change Requires Civic Infrastructure, Harold A. Mcdougall Iii
Harold A. McDougall III
Article explores how civil society might become sufficiently organized to hold business accountable beyond consumer choice, and government beyond merely voting.
Revisiting The Work We Know So Little About: Race, Wealth, Privilege, And Social Justice, 2012 Santa Clara University
Revisiting The Work We Know So Little About: Race, Wealth, Privilege, And Social Justice, Stephanie M. Wildman, Margalynne Armstrong, Beverly Moran
UC Irvine Law Review
No abstract provided.