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Full-Text Articles in Law
The Problem Is The Court, Not The Constitution, Jonathan Feingold
The Problem Is The Court, Not The Constitution, Jonathan Feingold
Faculty Scholarship
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Faculty Scholarship
In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
Faculty Scholarship
The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …
When They Hear Us: Race, Algorithms And The Practice Of Criminal Law, Ngozi Okidegbe
When They Hear Us: Race, Algorithms And The Practice Of Criminal Law, Ngozi Okidegbe
Faculty Scholarship
We are in the midst of a fraught debate in criminal justice reform circles about the merits of using algorithms. Proponents claim that these algorithms offer an objective path towards substantially lowering high rates of incarceration and racial and socioeconomic disparities without endangering community safety. On the other hand, racial justice scholars argue that these algorithms threaten to entrench racial inequity within the system because they utilize risk factors that correlate with historic racial inequities, and in so doing, reproduce the same racial status quo, but under the guise of scientific objectivity.
This symposium keynote address discusses the challenge that …
Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose
Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose
Faculty Scholarship
The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …