Law Commons^™

Turn The Chapter Or Change The Book: Taking Critical Race Theory Forward, Trevor Tan

Trevor Tan

Differentiations between groups are now conceived along cultural lines instead of morphological or geographical lines. This is substantively reflected in academia, law and practical experience. Adoption of an alter-cultural solution will sweep aside arbitrary limits based on an old idea of race, replacing them with porous and readily traversed boarders. It will place autonomy and self-agency firmly at the core of human ambition and achievement. I illustrate this by applying an altercultural lens to a persistent area of Critical Race debate – racial underrepresentation in the legal profession.

Critical Race literature should begin to adopt culture as its root concept, …

Lost In The Numbers: The Underrepresentation Of Asian American Groups And The Case For Disaggregating “Asian” Data, William W. Yu

William W Yu

While certain Asian ethnicities outperform Whites and other groups with respect to socioeconomic achievement, other Asian groups fail to reach the same levels of success. Despite this, the aggregate treatment of Asian Americans continues in affirmative action debates, especially in the educational context. As a result, the unique needs and issues of groups such as Southeast Asians are often ignored. The aggregate treatment is also used to justify the exclusion of Asian Americans from affirmative action policies because of a belief that Asian Americans as a whole are already adequately represented in schools, and thus no longer need affirmative action. …

Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, Harry G. Hutchison

Harry G. Hutchison

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive Movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects …

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer service …

Rights, Race, And Manhood: The Spanish American War And Soldiers’ Quests For First Class American Citizenship, Julie Novkov

Julie Novkov

Unlike the Civil War and Reconstruction, the Spanish American War and the Philippine Resistance were not accompanied by significant rights advances for people of color. Rather, rights continued to flow in retrograde, with increased political and cultural repression. Men of color contributed substantially and formally to the war effort, with companies of black and Filipino soldiers serving in combat and many individual Latinos, Native Americans, and Asian men and male descendants of Asians serving as well. Nonetheless, they were unable to leverage service into successful claims to the rights of manhood. This paper explores these dynamics in the context of …

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

Batson Claims Since Miller-El And The Success Of Miller-El In Light Of Habeas Corpus Deference In The Eleventh Circuit, John J. Cronan

John J Cronan

After grappling with the issue of peremptory challenges for nearly fifty years in this country, one wonders if Justice Breyer’s concurrence in Miller-El is simply the best, and sole solution to this perpetual problem. Thus far, it is surprising how little progress has been made following the Supreme Court’s instruction in Miller-El given the fact that many judges seem all to quick to grant deference, generally under the AEDPA, even in the face of arguably unreasonable applications of federal law. Unfortunately, there appears to be little chance of success on habeas review by federal courts for petitioners. Thus, it seems …

What We Can Learn About Appeals From Mr. Tillman's Case: More Lessons From Another Dna Exoneration, Giovanna Shay

Giovanna Shay

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman’s case is a paradigmatic DNA exoneration—involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This article uses the published opinions affirming Mr. Tillman’s conviction—particularly his direct appeal to the Connecticut Supreme Court and his appeal from the state habeas proceeding—to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman’s exoneration reveal any …

"To Be Or Not To Be" Responsible: The Effectiveness Of Media's Codes Of Ethics As Checks On Biased Reporting, Blake D. Morant

Blake D Morant

“To Be or Not to Be” Responsible: The Effectiveness of the Media’s Codes of Ethics as Checks on Biased Reporting Blake D. Morant Dean and Professor of Law Wake Forest University School of Law “Media bias” has become a clichéd expression. Despite the phrase’s cavalier use by some to minimize the industry’s influence, biased reporting remains an omnipresent cloud on media’s legitimacy as the fourth estate. Polemic issues related to race, gender or traditionally disadvantaged groups, particularly when covered sensationally by news media, exposes problems related to bias and misinformation. This Article deconstructs the problem of media bias through a …

Sacrifice And Civic Membership: The Case Of World War I, Julie Novkov

Julie Novkov

In the Civil War and World War II, many men of color gained rights while women's rights were in retrograde. While World War I is not a perfect mirror image of the Civil War and World War II, it may make sense to think of World War I as reversing the polarities that were in operation in the two other major conflicts. To understand this dynamic, this paper will explore the kinds of claims that men of color and women made for rights based in forms of civic service and sacrifice, how those claims were met by various state actors, …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation – mired in the politics and law of disenfranchising the Cherokee Freedmen – continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe …

Intragroup Discrimination: The Case For "Race Plus", Enrique R. Schaerer

Enrique R. Schaerer

The application of Title VII is uneven. The judiciary applies it to employment discrimination across groups, intergroup discrimination, but is reluctant to do so for discrimination within groups, intragroup discrimination. Even where Title VII recognizes intragroup discrimination, it does so unevenly. A “sex plus” doctrine is used to address intragroup sex discrimination, but no corresponding “race plus” doctrine has emerged for intragroup race discrimination. This Article calls attention to issues of intragroup discrimination, and proposes “race plus” as a natural extension of “sex plus” based on the text, legislative history, and statutory purpose of Title VII. This doctrinal tool would …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

As American Indian tribal nations develop the capacity to govern their own citizens, and engage in substantial economic and political activities with non-citizens, they are heading toward major roadblocks. Tribal nations, like other nations, seek to regulate the activities of all persons within their territorial jurisdictions, including the power to tax and prosecute those persons, citizen or not. The United States Supreme Court has expressed strong skepticism about the possibility of tribal nations asserting this authority and has placed tight controls on the authority of tribal nations to regulate the activities of non-tribal citizens.

Tribal governments are nations and should …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Judicial Diversity On State Supreme Courts, John D. Castiglione, Gregory L. Acquiaviva

John D. Castiglione

State courts of last resort are, in many ways, the primary expositors of law in the United States. Criminal law, contracts, family law, wills, trusts, and estates -- just to name a few -- fall within their purview. And yet, we know surprisingly little about just who sits on these courts -- state supreme court judges have been described as “perhaps the most important and least written about group within the judicial system” of the United States. Indeed, the last study on the characteristics and experiences of the state supreme court justices is almost fifteen years old. This Article presents …

Latina/Os, Locality, And Law In The Rural South, Lisa R. Pruitt

Lisa R Pruitt

In this era of municipal anti-immigrant ordinances and federal-local cooperation to enforce immigration laws, legal issues associated with immigration are playing out at multiple scales, from the national down to the local. Legal actors at the municipal, county, and state levels have become front-line policymakers and law enforcers in relation to immigrant populations. This essay calls attention to phenomenal surge in Latina/o immigration into the rural South in recent years, and it considers how that socio-spatial milieu may influence these legal matters at the local level.

Among other issues, the essay discusses the enhanced opportunity for racial profiling in the …