Law Commons^™

“The Biggest Problem With You…”: Racial Profiling And Canada’S Program Of Extra-Territorial Migrant Interdiction, Simon Wallace, Benjamin Perryman, Gábor Lukács, Sean Rehaag

All Papers

On April 3, 2019, Andrea and Attila Kiss tried to board an Air Canada Rouge flight from Budapest to Toronto. Andrea’s sister was ailing, and the couple planned to visit Canada for two months to support her family. Their travel was legitimate and lawful. Their documents were in order. But when they lined up to check in, Andrea made a mental note of a fact that was about to become relevant: as members of the Hungarian Roma community, they were the only racialized people in line.

Andrea and Attila did not reach the check-in counter. They were stopped and pulled …

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 …

Reframing Hate, Lu-In Wang

Articles

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet

Arkansas Law Review

I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication. So, for …

Policing And "Bluelining", Aya Gruber

Publications

In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about …

Race, Dignity, And Commerce, Lu-In Wang

Articles

This Essay was written at the invitation of the Journal of Law and Commerce to contribute a piece on racism and commerce—an invitation that was welcome and well timed. It arrived as renewed attention was focused on racialized policing following the killing of George Floyd and in the midst of the worsening pandemic that highlighted unrelenting racial, social, and economic inequities in our society.

The connections between racism and commerce are potentially numerous, but the relationship between discriminatory policing and commerce might not be apparent. This Essay links them through the concept of dignity. Legal scholar John Felipe Acevedo has …

The Music Of Mass Incarceration, Andrea L. Dennis

Scholarly Works

Intellectual property law reaches every aspect of the world, society, and creativity. Sometimes, creative expression is at the very crux of societal conflict and change. Through its history, rap music has demonstrated passionate creative expression, exploding with emotion and truths. Now the most popular musical genre in America, rap has always shared—and consistently critiqued—disproportionate effects of the criminal legal system on Black communities. The world is increasingly hearing these tunes with special acuity and paying more attention to the lyrics. Virtually every music recording artist would consider the following numbers a major career achievement: 500 percent increase; 222 percent growth; …

Racial & Identity Profiling Advisory Board Annual Report 2020, Racial & Identity Profiling Advisory Board

Civil Rights & Human Rights

California’s Racial and Identity Profiling Advisory Board (Board) is pleased to release its Third Annual Report. The Board was created by the Racial and Identity Profiling Act of 2015 (RIPA) to shepherd data collection and provide public reports with the ultimate objective to eliminate racial and identity profiling and improve and understand diversity in law enforcement through training, education, and outreach. For the first time, the Board’s report includes an analysis of the stop data collected under RIPA, which requires nearly all California law enforcement agencies to submit demographic data on all detentions and searches. This report also provides recommendations …

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

Publications

This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

Racial & Identity Profiling Advisory Board Annual Report 2019, Racial & Identity Profiling Advisory Board

Civil Rights & Human Rights

California's Racial and Identity Profiling Act of 2015 (RIPA) is truly groundbreaking legislation - the first of its kind and scale in the United States. This law requires nearly all California law enforcement agencies to collect, maintain, and analyze demographic data on all detentions and searches, thereby codifying the recommendation of the President's Task Force on 21st Century Policing which aimed to improve understanding and create evidence based policies through this data collection. The Racial and Identity Profiling Advisory Board (Board) was created by the Act to shepherd this data collection and provide public reports with the ultimate objective to …

Racial & Identity Profiling Advisory Board Annual Report 2018, Racial & Identity Profiling Advisory Board

Civil Rights & Human Rights

The Racial and Identity Profiling Advisory (RIPA) Board began its work in July 2016 as part of the Racial and Identity Profiling Act of 2015 (AB 953) with a momentous purpose: to eliminate racial and identity profiling and improve racial and identity sensitivity in law enforcement.1 In order to achieve these goals, the RIPA Board was charged with several responsibilities including publishing an annual report on the past and current status of racial and identity profiling with policy recommendations for eliminating it. This is the first report of the RIPA Board, and similarly represents California’s first ever statewide report on …

“Show Me Your Papers”: An Equal Protection Violation Of The Rights Of Latino Men In Trump’S America, Monica Chawla

Touro Law Review

No abstract provided.

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Utah V. Strieff: Lemonade Stands And Dragnet Policing, Guy Padula

West Virginia Law Review

No abstract provided.

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Blue Lives Have Always Mattered: The Usurping Of Hate Crime Laws For An Unintended And Unnecessary Purpose, Lisa M. Olson

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Persistence Of Memory: The Continuing Influence Of Antebellum Missouri Laws Regarding African Americans, Roy Dripps

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Racial Profiling In The Era Of Black De-Constitutionalism, Donald F. Tibbs

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and …

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Articles

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.

Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr

Articles

In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …

Newsroom: Logan Honored For Diversity, Equal Justice, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Victor C. Romero

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

Critical Race Theory In Three Acts: Racial Profiling, Affirmative Action, And The Diversity Visa Lottery, Victor C. Romero

Victor C. Romero

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery, often with seemingly contradictory results. Liberals often favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.

Always Already Suspect: Revising Vulnerability Theory, Frank Rudy Cooper

Scholarly Works

Martha Fineman proposes a post-identity "vulnerability" approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people's burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary …

Say Her Name: Resisting Police Brutality Against Black Women, Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, Luke Harris

Faculty Scholarship

Say Her Name sheds light on Black women’s experiences of police violence in an effort to support a gender-inclusive approach to racial justice that centers all Black lives equally. It is our hope that this document will serve as a tool for the resurgent racial justice movement to mobilize around the stories of Black women who have lost their lives to police violence ...Our goal is not to offer a comprehensive catalog of police violence against Black women – indeed, it would be impossible to do so as there is currently no accurate data collection on police killings nationwide, no …

Race And The Decision To Detain A Suspect, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.

Profiling With Apologies, Sherry F. Colb

Sherry Colb

No abstract provided.

Stopping A Moving Target, Sherry F. Colb

Sherry Colb

No abstract provided.

Racial Profiling: A Status Report Of The Legal, Legislative, And Empirical Literature, Katheryn Russell-Brown

Katheryn Russell-Brown

In recent years, there have been several widely-publicized cases in which racial profiling became police brutality. As well, there have been scores of famous Black men who have offered their personal accounts as victims of racial profiling. All of these have helped to propel the issue onto the nation's front burner. The varied responses to racial profiling indicate the range of groups affected by and concerned about the practice. Notably, this includes former President Bill Clinton, who shared his belief that racial profiling is a national problem. The issue of racial profiling has evoked a wide range of policy responses, …