Law Commons^™

The Conflict Among African American Penal Interests: Rethinking Racial Equity In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

This Article argues that neither the criminal justice reform platform nor the penal abolition platform shows the ambition necessary to advance each of the primary African American interests in penal administration. It contends, first, that abolitionists have rightly called for a more robust conceptualization of racial equity in criminal procedure. Racial equity in criminal procedure should be considered in terms of both process at the level of the individual, and the number of criminal procedures at the level of the racial group—in terms of both the quality and “quantity” of stops, arrests, convictions, and the criminal sentencings that result in …

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers

Scholarly Articles

In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.

What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that …

Black Women And Voter Suppression, Carla Laroche

Scholarly Articles

Black women who are eligible to vote do so at consistently high rates during elections in the United States. For thousands of Black women, however, racism, sexism, and criminal convictions intersect to require them to navigate a maze of laws and policies that keep them from voting. With the alarming rate of convictions and incarceration of Black women, criminal law intersects with civil rights to bar their involvement in the electoral process. This voting ban is known as felony disenfranchisement, but it amounts to voter suppression.

By reconceptualizing voter suppression based on criminal convictions through the experiences of Black women’s …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Faculty Scholarship

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis …

Defamation: The Play, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Moral Panics And Body Cameras, Howard Wasserman

Faculty Publications

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing the body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.

The Mismatch Myth In U.S. Higher Education: A Synthesis Of The Empirical Evidence At The Law School And Undergraduate Levels, William C. Kidder, Richard O. Lempert

Book Chapters

Opponents of affirmative action in higher education commonly cite two principles to justify their opposition. One is that admissions to institutions of higher education should be based on "merit," which is often treated by critics of affirmative action as consisting of little more than test score results and high school or undergraduate grades. The second is the legal and moral imperative of not making consequential decisions based on race. We shall not address these principles except to note that others have shown that they do not make the case against affirmative action (Carbado & Harris 2008, Shultz & Zedeck 2011, …

Still Hazy After All These Years: The Lack Of Empirical Evidence And Logic Supporting Mismatch, Angela Onwuachi-Willig, William Kidder

Faculty Scholarship

In the context of reviewing the book "Mismatch" by Sander and Taylor, the authors provide a comprehensive review and synthesis of dozens of social science research studies regarding affirmative action, mismatch, graduation rates and labor market earnings. In addition, the authors look at the recent graduation rates of nearly two hundred thousand black and Latino students at one hundred U.S. research intensive universities (Table 1). The authors conclude that the social science research overall, and particularly the best peer-reviewed studies, do not support the mismatch hypothesis with respect to affirmative action and African American and Latino college graduation rates and …

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

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 throughout the post-arrest justice process, extending beyond the …

How Predatory Mortgage Lending Changed African American Communities And Families, Cheryl L. Wade

Faculty Publications

(Excerpt)

This symposium focuses on efforts to reform the secondary mortgage market in the aftermath of the most potent economic downturn in U.S. history since The Great Depression. One question posed at the symposium in several forms was whether low-income Americans should be encouraged to own a home. Implicit in this question is the idea that low­-income homebuyers were responsible for the losses that investors in mortgage-backed securities incurred. This question is part of a familiar narrative: investors in mortgage-backed securities suffered, and the economy suffered, because low-income homebuyers defaulted. My essay, however, looks beyond the alleged irresponsibility of homebuyers …

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …

Crossing The Color Line: Racial Migration And The One-Drop Rule, 1600-1860, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Scholars describe the one-drop rule--the idea that any African ancestry makes a person black--as the American regime of race. While accounts of when the rule emerged vary widely, ranging from the 1660s to the 1920s, most legal scholars have assumed that once established, the rule created a bright line that people were bound to follow. This Article reconstructs the one-drop rule's meaning and purpose from 1600 to 1860, setting it within the context of racial migration, the continual process by which people of African descent assimilated into white communities. While ideologies of blood-borne racial difference predate Jamestown, the rhetoric of …

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

Scholarly Works

No abstract provided.

Book Review: Michele Goodwin's Black Markets: The Supply And Demand Of Body Parts, Barbara A. Noah

Faculty Scholarship

The Author reviews Michele Goodwin’s book BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS, published by Cambridge University Press, 2006. The book discusses the shortage of cadaveric organs available for transplantation. It argues that the shortage disproportionately impacts racial minorities. It then analyzes existing organ procurement laws and proposed alternatives, with a focus on market solutions.

BLACK MARKETS is impeccably researched and persuasively argued, though some of its points are certainly controversial. The book is aimed at and very accessible to a general audience, but it will also prove interesting and informative to legal, medical and public health academic …

From Reconstruction To Deconstruction: Undermining Black Landownership, Political Independence, And Community Through Partition Sales Of Tenancies In Common, Thomas W. Mitchell

Faculty Scholarship

This article considers one of the primary ways in which African Americans have lost millions of acres of land that they were able to acquire in the latter part of the nineteenth century and the beginning part of the twentieth century and the sociopolitical implications of this land loss. Specifically, this article highlights the fact that forced partition sales of tenancy in common property, referred to more commonly as heirs' property, have been a major source of black land loss within the African American community. The article argues that involuntary black land loss has had a significant negative impact upon …

Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy

Scholarly Works

No abstract provided.