Law Commons^™

What, To The Marginalized Person, Is The American Dream, Deidre Keller

Journal Publications

I will organize this Note around three themes Douglass articulated in his speech. These themes, which remain timely and relevant over 170 years later, are (1) the importance of attending to those most impacted by injustices; (2) the responsibility of each of us to address the injustices we see in the world around us; and (3) the practice of remaining hopeful in the face of what, at times, may feel like daunting circumstances. I will structure this Note around these three themes as I consider what the American Dream means for marginalized persons. Throughout, I will weave in examples of …

The Battle Of Brandy Creek: How One Black Community Fought Annexation, Tax Revaluation, And Displacement, Mark Dorosin

Journal Publications

The Brandy Creek community is a working class, Black neighborhood located just east of I-95, south of Weldon, North Carolina.' In 2005, this rural neighborhood and its surrounding land were legislatively annexed into the city of Roanoke Rapids as part of a planned economic development project. The decision to pursue legislative annexation allowed city officials to bypass the statutory notice and municipal service requirements of a city-initiated, involuntary annexation. Residents were never informed of Roanoke Rapids' intent to annex the community and had no opportunity to voice their opinions on the issue to town officials. In fact, the community first …

Historically Black Colleges & Universities: A Model For American Education, Jennifer M. Smith

Journal Publications

Hungry for freedom and knowledge, enslaved Blacks engaged in a massive general strike against slavery by transferring their labor from the Confederate planter to the Northern invader, and this decided the Civil War. In 1865, the North conquered the South, and slavery officially ended. Having been starved of the opportunity to learn to read or write, the recently emancipated Blacks were eager to learn. Within a year after slavery ended, however, Florida and other Southern states enacted laws to ensure the continuation of the vestiges of slavery in the United States. The legacy of slavery and racism evolved into an …

Damn It! A Conversation On Being Black, Female, And Marginalized During The Covid-19 Pandemic: Is The World Listening? A Conversation Between Black Female Law Professors, Patricia A. Broussard

Journal Publications

We are African American women with a combined forty-four years in academia. We are professors of law and have seen firsthand how COVID-19 has ravaged African Americans across this country. As we conversed with one another in the Spring of 2020 about what we were witnessing, we began to look through the spectrum of the law and discrimination, and how this novel Coronavirus is laying bare the inequities and inequalities that have been evident for hundreds of years in the Black community. We felt compelled to put pen to paper and document our conversations in an attempt to give a …

North Carolina's H.B.2: A Case Study In Lgbtq Rights, Preemption, And The (Un)Democratic Process, Mark Dorosin

Journal Publications

In 2014, community advocates in Charlotte, North Carolina, began organizing to press the city to amend its antidiscrimination ordinance to add several new protected classes, including sexual orientation, gender identity, and gender expression. After a contentious hearing where opponents argued that the change-which would allow transgender people to use public restrooms according to their gender identity-would subject women and children to "sexual predators," the city council voted down the amendment. Undaunted, advocates worked over the next several months to elect new council members and a mayor who supported LGBTQ rights. The amendments to the civil rights ordinance were then brought …

Enforcing The Right To Public Education, Areto A. Imoukuede

Journal Publications

This paper suggests that although each state within the United States currently recognizes a right to public education, the states do not provide meaningful and consistent judicial enforcement of the right. Recognizing a federal fundamental right to public education would be a step towards ensuring meaningful and consistent judicial enforcement of the right.

Unbowed, Unbroken, And Unsung: The Unrecognized Contributions Of African American Women In Social Movement, Politics, And The Maintenance Of Democracy, Patricia A. Broussard

Journal Publications

Black women have made huge contributions to American society in movements, politics, and maintenance of the democracy. Black women have been relegated to footnotes, turned in memes, and largely ignored in politics and other areas of power. Notwithstanding the disrespect, disregard, and failures of the larger society to acknowledge that black own have made significant contributions, not only in the in entertainment industry, but in numerous other ways that have shaped out cultural and political landscape, black women's contributions to the larger society have been huge and impactful; yet there are so many blank spaces where their stories should reside. …

The Female Body In The Workplace: Judges And The Common Law, Maritza I. Reyes

Journal Publications

If the common law serves to liberate women, everybody, including judges, should understand the role they do play and should play in the development of the common law. As a career law clerk in the federal courts, I witnessed the decision-making process inside the chambers of federal judges and in the courtrooms. I came to the conclusion that judges, more than statutory law, influence what happens to female bodies in the workplace. Litigants initially drive the common law by filing complaints. However, judicial decisions affect not only the litigants in their individual cases, they also serve as precedent for future …

The Double Whammy Of Being Female And African-American: How Black Women Are More Vulneralbe To Trafficking And Other Forms Of Discrimination, Cheryl Page

Journal Publications

Commercial sexual exploitation discriminates even among those that fall prey to this heinous criminal enterprise. It is impossible to comprehensively discuss this topic without addressing the fact that the majority of victims are female, females of color, traditionally are from a lower economic status, tend to not have as many educational opportunities, have experienced some form of abuse and trauma, have been a part of the foster care system, and have other vulnerabilities that make them even more susceptible to being trafficked. This discussion would be incomplete without also addressing how trafficking is connected to race and racial discrimination, poverty, …

Critical Race Ip, Deidre Keller

Journal Publications

In this Article, written on the heels of Race + IP 2017, a conference we co-organized with Amit Basole1 and Jessica Silbey,we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP).Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we articulate …

The Right To Public Education And The School To Prison Pipeline, Areto A. Imoukuede

Journal Publications

The school-to-prison. pipeline is a controversial concept and a disappointing reality. It refers to the draconian disciplinary "trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system-such as suspending or expelling them." Public schools are intended to primarily be institutions for public education. It is clear that serving as a pipeline to prison is not the central purpose of the public school. The purpose of public education is to provide students an opportunity to develop their capabilities and grow as individuals. Public education is intended …

Congress Did Not Give The President Unfettered Discretion To Exclude, Maritza I. Reyes

Journal Publications

No abstract provided.

Rationed Justice, Jennifer M. Smith

Journal Publications

In the United States, "equal justice under law" is at the very forefront of our American justice system. "Equal justice" is meant to guarantee equal access to the justice system. "Equal access to the judicial process is the sin qua non of a just society." Many Americans, however, do not have any access to the justice system, never mind that of equal access. "Equal justice" has not reached the nation's indigent, or even many of our moderate-income citizens.

A Civil Rights Act For The 21st Century: The Privileges And Immunities Clause And A Constitutional Guarantee To Be Free From Discriminatory Impact, Mark Dorosin

Journal Publications

As the nation reflects on the fiftieth anniversaries of the various civil rights legislation of the 1960s' and considers the challenges that remain for fully addressing our history of racial discrimination, segregation, and suppression, we must begin with a very fundamental question: What is the harm that we are seeking to address, and how effectively do our current civil rights laws work towards achieving that goal? Given our collective success in addressing some of the most egregious intentional discrimination, as well as the intransigent, and evolving nature of institutional racism, it is time for a new Civil Rights Act that …

The Color Of Pain: Blacks And The U.S. Health Care System--Can The Affordable Care Act Help To Heal A History Of Injustice?, Part Ii, Jennifer M. Smith

Journal Publications

The state of Americans' health care has been troubling, especially before health care reform.The Affordable Care Act (ACA) is often touted as universal health care, and the initial intention was for the U.S. to have universal health care. However, with all of the compromises involved in its passage, the ACA resulted in comprehensive health insurance reform, significantly increasing the accessibility, affordability, and quality of health care for most, but not all, Americans. The ACA is a substantial step toward universal health care-a near-universal mandate-that may soon provide coverage to all Americans, and even include undocumented immigrants. Americans can find excellent …

One Step Forward, Two Steps Back: Everett Et Al V. Pitt County School (Everett I And Ii) And The Ominous Future Of Federal Court Desegregation Orders, Mark Dorosin

Journal Publications

During the brief zenith of school desegregation litigation in the late 1960s and early 1970s, hundreds of school districts across the nation, and particularly across the South, were found liable for intentional racial discrimination and became subject to federal court supervision of approved plans to achieve integration. The period of aggressive enforcement was short-lived however, and by the mid-1970s, and accelerating through the 1980s and 1990s, an increasingly conservative Supreme Court and presidential administrations first slowed the scope and intensity of school integration, and then actively pushed to end judicial enforcement and oversight of existing desegregation cases. This was true …

Professional Women Silenced By Men-Made Norms, Maritza I. Reyes

Journal Publications

The call of this symposium was for articles regarding women's rights and the movement toward equality. We are still wrestling with what equality should mean. In this Article, when I refer to equality I envision it as both a strategy and as the end goal. Equality as a strategy means assessing the inherent inequalities of particular situations and using the means necessary to remedy the inequalities and achieve equality as the end goal. The end goal is for women (with all our complexities and intersectionalities) to achieve the same rights and results as men (with all their complexities and intersectionalities) …

The Fifth Circuit In Texas V. United States Chose And Advocated The Term “Illegal Alien”, Maritza I. Reyes

Journal Publications

No abstract provided.

"Fuck Your Breath": Black Men And Youth, State Violence, And Human Rights In The 21st Century, Jeremy I. Levitt

Journal Publications

This polemical essay was written at the behest of Black men and youth, and it is dedicated to African American women who relentlessly fight to safeguard the rights and well-being of Black men, even when in the process their maltreatment and welfare are grossly overlooked and forgotten. Bree Newsome's courageous and necessary removal of the confederate flag in the South Carolina State House is a prime example of such fearless activism. Joanne Deborah Chesimard aka Assata Shakur's-a former leader of the revolutionary organization known as the Black Liberation Armyascendency to the FBI's Most Wanted Terrorist list is another tragically intoxicating …

The Color Of Pain: Blacks And The U.S. Health Care System--Can The Affordable Care Act Help To Heal A History Of Injustice?, Part I, Jennifer M. Smith

Journal Publications

Discrimination in its various forms has contributed to the exclusion of blacks and other people of color from the field of medicine both as health care providers and as patients in the United States. Dr. Robinson's story is but one example. Racism has significantly harmed the health care of black people in the U.S. Generally speaking, those with the poorest health and the greatest need have had the poorest access to medical care, as well as lower quality health care than their white counterparts. To understand this, we must consider the historical context of blacks in America and in America's …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel, Maritza I. Reyes

Journal Publications

No abstract provided.

Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

Examining The "Stick" Of Accreditation For Medical Schools Through Reproductive Justice Lens: A Transformative Remedy For Teaching The Tuskegee Syphilis Study, Deleso Alford Washington

Journal Publications

The Tuskegee Syphilis Study, like the traditional recounting of the event, failed to acknowledge the direct impact of untreated syphilis in women. Arguably, the most infamous biomedical research study ever performed by the United States government is the Tuskegee Syphilis Study, which occurred between 1932 and 1972 in Macon County, Alabama. The stated purpose of the Tuskegee Syphilis Study was to determine the effects of untreated syphilis on Black men in Macon County, Alabama. Accordingly, historical and legal accounts have primarily told the stories of the male participants of the Study.

However, an overlooked yet important question looms: What about …

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto A. Imoukuede

Journal Publications

This Article explains why there is a fundamental duty for the government to provide public education under the U.S. Constitution. Numerous scholars and public officials have written on the need to overrule San Antonio v. Rodriguez or adopt alternative approaches to recognizing a right to public education either judicially or by way of constitutional amendment. This Article identifies a consistent and systemic reluctance by the Court to meaningfully enforce positive rights, which are the duties that the government owes to the people. In doing so, it explores the consistent recognition throughout American history that education is a fundamental duty of …

A Conversation With President Obama: A Dialogue About Poverty, Race, And Class In Black America, Joseph Karl Grant

Journal Publications

The date is November 13, 2012.1 Just mere days ago, I received the invitation of a lifetime. Last night, I arrived in Washington, D.C. I am staying in the Hay-Adams Hotel on the third floor. I still cannot believe the extent of my life's journey. I have just been summoned to the White House by second term President-elect Barack Obama, who defeated Mitt Romney, the Republican nominee for President on November 6, 2012. The 2012 Presidential Election was a hard-fought battle between Barack Obama on the Democratic side, and Mitt Romney on Republican side. The election was a like the …

The Meeting: A Transformational Train Ride Through Race In America And Apartheid In South Africa, Joseph Karl Grant

Journal Publications

No abstract provided.

The Anatomy Of A "Pantsuit": Performance, Proxy And Presence For Women Of Color In Legal Education, Deleso Alford Washington

Journal Publications

This essay is intended to begin a dialogue on how the presence of women of color standing at the intersection of gender, race and class can don a pantsuit or not and still experience under-discussed social realities that influence the attainment of 21st Century leadership roles in the legal academy.

Critical Race Feminist Bioethics: Telling Stories In Law School And Medical School In Pursuit Of "Cultural Competency", Deleso Alford Washington

Journal Publications

This article examines how slavery and the concept of race intersect with gender to construct a distinct notion of science and technology that has been historically marginalized at best. The particular aspect of "science" that is explored is the development of the medical specialty of gynecology in the United States. The focal point of this article is to explore a means to address the impact of continuing to tell the narrative on the development of the medical specialty of gynecology in the United States without the benefit of a "herstorical" lens.

Two "Wrongs" Do/Can Make A Right: Remembering Mathematics, Physics, & Various Legal Analogies (Two Negatives Make A Positive; Are Remedies Wrong?) The Law Has Made Him Equal, But Man Has Not, John C. Duncan Jr

Journal Publications

This article demonstrates the incomplete logic and inconsistent legal reasoning used in the argument against affirmative action. The phrase "two wrongs don't make a right" is often heard in addressing various attempts to equalize, to balance, and to correct the acknowledged wrongs of slavery and segregation and their derivative effects. Yet, "two wrongs do/can make a right" has a positive connotation. This article reviews the history of societal and judicial wrongs against Blacks, as well as the evolution of the narrowing in legal reasoning concerning discrimination against minorities, including Blacks. Next, the legal reasoning behind legacy programs will be reviewed …