Law Commons^™

A Decade After 9/11, Ignorance Persists, Dawinder S. Sidhu

Faculty Scholarship

While our soldiers do their job in Iraq and elsewhere, we as members of this society possess our own solemn responsibility to eradicate ignorance and discrimination, and extend social acceptance and respect to all Americans – irrespective of skin color or ethnic origin.

Racing Towards Colorblindness: Stereotype Threat And The Myth Of Meritocracy, Jonathan Feingold

Faculty Scholarship

Education law and policy debates often focus on whether college and graduate school admissions offices should take race into account. Those who advocate for a strictly merits-based regime emphasize the importance of colorblindness. The call for colorblind admissions relies on the assumption that our current admissions criteria are fair measures, which accurately capture talent and ability. Recent social science research into standardized testing suggests that this is not the case.

Part I of this Article explores the psychological phenomenon of stereotype threat. Stereotype threat has been shown to detrimentally impact the performance of individuals from negatively stereotyped groups when performing …

Hip-Hop And Housing: Revisiting Culture, Urban Space, Power, And Law, Lisa T. Alexander

Faculty Scholarship

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based …

Post Racialism?, André Douglas Pond Cummings

Faculty Scholarship

The 2008 election of President Barack Obama represents a halcyon moment in U.S. history. President Obama’s election begs a critical question: whether his nationwide landslide victory catapulted the United States, with its sordid racial past, into a truly post-racial place as many claim. While Obama’s election was possible due to important changes that have taken place in the United States in the past fifty years, the reality is that profound disparities continue to exist between minority and white Americans that show no sign of dissipating during this Obama presidency. Of these profound disparities, some of the most striking include those …

The Exclusion Of Non-English-Speaking Jurors: Remedying A Century Of Denial Of The Sixth Amendment In The Federal Courts Of Puerto Rico, Jasmine Gonzales Rose

Faculty Scholarship

This Article explores the constitutional implications of the Jury Selection and Service Act’s English language juror prerequisite, as applied in the federal courts in Puerto Rico. The language requirement results in the exclusion of approximately 90% of the age-eligible population of Puerto Rico from federal jury service and disproportionately excludes Puerto Ricans of color and the poor. The Article argues that application of the language requirement in Puerto Rico violates monolingual Spanish speakers’ fundamental Sixth Amendment right to a jury selected from a fair cross section of the community in federal criminal proceedings. It also examines the English language juror …

Building On Best Practices–Call For Ideas And Authors, Antoinette M. Sedillo Lopez

Faculty Scholarship

The Clinical Legal Association Best Practices Implementation Committee is planning a follow-up publication to Best Practices for Legal Education by Roy Stuckey and others. The vision of the book is to build on ideas for implementing best practices, and to develop new theories and ideas on Best Practices for Legal Education.

A Crisis Of Confidence And Legal Theory: Why The Economic Downturn Should Help Signal The End Of The Doctrine Of Efficient Breach, Dawinder S. Sidhu

Faculty Scholarship

To understand subprime behavior and efficient breaches, it is imperative to first examine the necessary social predicate for economic transactions. Accordingly, Part I will offer an overview of society and the market, highlighting the importance of reciprocity and trust to both. Part II will define the economic transactions implicated by this Article: basic contracting, efficient breach of contract, and the subprime behavior of the current economic crisis. Part III will make explicit the nexus between subprime behavior and efficient breaches by explaining that subprime behavior and efficient breaches are linked by shared elements; they are opportunistic in nature, are interested …

Respecting Language As Part Of Ethnicity: Title Vii And Language Discrimination At Work, Carlo A. Pedrioli

Faculty Scholarship

This article argues that, in the absence of a legitimate, non-discriminatory reason or a business necessity, Title VII of the 1964 Civil Rights Act can protect employees from language-based discrimination in the workplace. Language is a part of one’s ethnicity, which refers to one’s culture. Ethnicity, much as race already does, should receive protection under Title VII. Plaintiffs, however, have the burden of proof in litigation, and so a plaintiff who sues under a discrimination theory should have to make his or her case to the appropriate fact-finder. Drawing upon the insights of critical theory, particularly to explore concepts like …

Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.

White Male Heterosexist Norms In The Confirmation Process, Theresa M. Beiner

Faculty Scholarship

Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former …

Inside Out, Elizabeth F. Emens

Faculty Scholarship

Russell Robinson has done it again. With Masculinity as Prison: Sexual Identity, Race, and Incarceration, he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves. The Article represents much of what generally makes Robinson’s work so compelling. First, he writes about tremendously complex subjects and attends to their many complexities in remarkably lucid prose. Second, despite his critical perspective, he does not hesitate to make prescriptive arguments.

In this Article, he even ventures into the hallowed ground of constitutional argument, something he has not done since his first article on race-based …

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities. …

Class, Classes, And Classic Race Baiting: What’S In A Definition?, Angela Onwuachi-Willig, Amber Fricke

Faculty Scholarship

Overall, in this Article, we briefly lay out each of our challenges to Sander's arguments in Class in American Legal Education. In Part I, we first address the very problems that Sander's article highlights about the difficulties of defining class and SES, problems that may make classbased affirmative action programs less feasible and effective than Sander suggests. In so doing, we identify what we consider to be defects in Sander's class/SES groupings. We also highlight the complexities around class and race that already exist within law student populations, answering in part the important questions about to whom black law students …

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West

Faculty Scholarship

New research has identified the consequences of high rates of incarceration on neighborhood crime rates, but few studies have looked beyond crime to examine the collateral effects of incarceration on the social and economic well being of the neighborhoods themselves and their residents. We assess two specific indicia of neighborhood economic well-being, household income and human capital, dimensions that are robust predictors of elevated crime, enforcement and incarceration rates. We decompose incarceration effects by neighborhood racial composition and socio-economic conditions to account for structural disadvantages in labor force and access to wealth that flow from persistent patterns of residential segregation. …

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

Originalism's Race Problem, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

Response Essay: Temporal Variance, Hockey, And The Wartime Constitution, Dawinder S. Sidhu

Faculty Scholarship

In "Let 'em Play: A Study in the Jurisprudence of Sport," Professor Mitch Berman explores the concept of "temporal variance," the notion that sports officials should call infractions less strictly in the last, critical moments of a close match, in order to foster the public impression that the players themselves are responsible for the final outcome of the game. Professor Berman relies on several major sports in support of his argument, though hockey is largely absent from his discussion. It seems to me that an analysis of rules and enforcement in this particular sport reveal the wide-ranging problematics of "temporal …

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

Faculty Scholarship

The purpose of this Article is to explain why the D.C. Circuit got it wrong. Part I provides an overview of the facts and relevant law that formed the basis for the decision. Part II shows that the court misapplied the basic factors set forth initially by the Court in Eisentrager and later clarified in Boumediene. Part III contains a proposed framework that reorients and reframes these factors in order to make habeas jurisdiction analyses more workable and consistent with the historical justifications for the writ, separation of powers considerations, and governing case law. Part IV applies this framework to …

Response Essay: Temporal Variance, Hockey, And The Wartime Constitution, Dawinder S. Sidhu

Faculty Scholarship

In “Let ‘Em Play”: A Study in the Jurisprudence of Sport,1 Professor Mitchell Berman offers a thoughtful and engaging defense of the concept of temporal variance, the notion that “some rules of some sports should be enforced less strictly toward the end of close matches.” In support of his position, Professor Berman draws on various professional sports, including tennis, basketball, and baseball. Largely absent as a source of information or subject of the overall discussion is hockey, a sport with which Professor Berman acknowledges he is less familiar. The purpose of this response is to address my concerns with temporal …

Rethinking The Fourth Amendment: Race, Citizenship, And The Equality Principle, Bennett Capers

Faculty Scholarship

No abstract provided.

Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw

Faculty Scholarship

This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. The second objective is to explore the contemporary significance of CRT's trajectory in light of today's "post-racial" milieu. The Article posits …

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed …