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Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit Jan 2023

Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit

Book Chapters

For most Americans, “prison jihad” may sound frightening and conjure images of religious militants, bearded, turbaned, and under the spell of foreign radical networks…. While this may be the immediate impression, there is nothing like that happening in American prisons. However, there has been a different type of jihad taking place, one that is real and identifiable. This is not the sensational jihad of headline media; rather, this jihad is uneventful and quiet by comparison and has persisted since the 1960s with hardly any public notice.

Despite little attention and recognition, Muslims in prison occupy a unique spot in the …


Critical Race Theory As Intellectual Property Methodology, Anjali Vats, Deidre A. Keller Jan 2021

Critical Race Theory As Intellectual Property Methodology, Anjali Vats, Deidre A. Keller

Book Chapters

This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In …


Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus Oct 2020

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …


The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats Jan 2020

The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats

Book Chapters

INTELLECTUAL PROPERTY LAW, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal …


A Taxing Feminism, Anthony C. Infanti, Bridget J. Crawford Jan 2020

A Taxing Feminism, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Feminist perspectives are not new to tax law. The first academic piece bringing a feminist perspective to bear on tax law dates to the early 1970s, when Grace Blumberg published “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers.” Contemporaneously, none other than Ruth Bader Ginsburg (along with her tax lawyer husband Marty Ginsburg) brought a feminist perspective to bear on tax law when she argued Moritz v. Commissioner before the Tenth Circuit Court of Appeals, as depicted in the movie On the Basis of Sex. Since then, numerous other contributions have been …


Rules, Tricks And Emancipation, Jessie Allen Jan 2020

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …


Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker Mar 2019

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …


Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford Jan 2017

Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings …


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 Jan 2015

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, …


Justice Ginsburg's Umbrella, Ellen D. Katz Jan 2015

Justice Ginsburg's Umbrella, Ellen D. Katz

Book Chapters

Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”


On Class-Not-Race, Samuel R. Bagenstos Jan 2015

On Class-Not-Race, Samuel R. Bagenstos

Book Chapters

Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. At times, this position-taking has seemed merely tactical, opportunistic, or in bad faith. Many who have opposed race-based civil rights interventions on this basis have not turned around to support robust efforts to reduce class-based or socioeconomic inequality. That sort of opportunism is interesting and important for understanding policy debates in civil rights, but it is not my focus here. I am more interested here in the people who clearly mean it. For example, President Lyndon Baines Johnson—who can …


Enforcing The Fifteenth Amendment, Ellen D. Katz Jan 2015

Enforcing The Fifteenth Amendment, Ellen D. Katz

Book Chapters

This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, …


Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott Jan 2013

Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott

Book Chapters

This chapter is not an attempt to join the fractious debate over philosophical first principles or juridical first usages of the term 'dignity'. Instead, it explores the tight connection between the institution of slavery and the giving of specific meanings to the concept of dignity, in particular times and particular places. To explore the dynamics of the intertwined process of creating and drawing upon meaning for the terms 'dignity' and 'slavery', I examine two historical movements that emerged after formal abolition.


Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott Jan 2012

Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott

Book Chapters

When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being? Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and …


Exploring The Determinants Of High-Cost Mortgages To Homeowners In Low- And Moderate-Income Neighborhoods, Michael S. Barr, Jane K. Dokko, Benjamin J. Keys Jan 2011

Exploring The Determinants Of High-Cost Mortgages To Homeowners In Low- And Moderate-Income Neighborhoods, Michael S. Barr, Jane K. Dokko, Benjamin J. Keys

Book Chapters

In spite of the recent impetus to reform home mortgage markets, particularly as they affect low- and moderate-income (LMI) households, little systematic evidence is available about how potential abuses in mortgage lending manifest in the mortgages held by those households. While racial discrimination in mortgage markets has a long history in the United States, the role of mortgage brokers in lending has only recently increased and become controversial. In this chapter, we uncover two mechanisms through which differential mortgage pricing occurs among LMI homeowners: black borrowers and borrowers who use mortgage brokers pay more for mortgage loans than other borrowers, …


Rosalie Of The Poulard Nation: Freedom, Law, And Dignity In The Era Of The Haitian Revolution, Rebecca J. Scott, Jean M. Hébrard Jan 2010

Rosalie Of The Poulard Nation: Freedom, Law, And Dignity In The Era Of The Haitian Revolution, Rebecca J. Scott, Jean M. Hébrard

Book Chapters

On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to make a proposal. Under the Congressional Reconstruction Acts of1867, the voters of Louisiana had elected ninety-eight delegates-half of them men of color-to a constitutional convention charged with drafting a founding document with which the state could reenter the Union. Edouard Tinchant was a twentysix- year-old immigrant to New Orleans, principal of a school for freed children on St. Claude Avenue. Having made something of a name for himself as a Union Army veteran …


Of Visible Race-Consciousness And Institutional Role: Equal Protection And Disparate Impact After Ricci And Inclusive Communities, Richard A. Primus Jan 2010

Of Visible Race-Consciousness And Institutional Role: Equal Protection And Disparate Impact After Ricci And Inclusive Communities, Richard A. Primus

Book Chapters

Six years ago, Ricci v. DeStefano foregrounded the possibility that statutory disparate-impact standards like the one in Title VIl might be on a collision course with the Fourteenth Amendment's Equal Protection Clause. For many observers, it was a radically new possibility. Until that point, disparate-impact doctrine had usually been understood as an ally of equal protection rather than as a potentially conflicting aspect of the law. But between the 1970s and the beginning of the present century, equal protection doctrine became more individualistic and less tolerant of race-conscious actions intended to redress inherited racial hierarchies. Those developments put equal protection …


Critical Tax Theory: An Introduction, Anthony C. Infanti, Bridget J. Crawford Jan 2009

Critical Tax Theory: An Introduction, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Our book Critical Tax Theory: An Introduction (Cambridge University Press 2009) highlights and explains the major themes and methodologies of a group of scholars who challenge the traditional claim that tax law is neutral and unbiased. The contributors to this volume include pioneers in the field of critical tax theory, as well as key thinkers who have sustained and expanded the investigation into why the tax laws are the way they are and what impact tax laws have on historically disempowered groups. This volume will provide an accessible introduction to this new and growing body of scholarship. It will be …


Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott Jan 2009

Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Book Chapters

Sidney Mintz’s Worker in the Cane is a model life history, uncovering the subtlest of dynamics within plantation society by tracing the experiences of a single individual and his family. By contrast, Mintz’s Sweetness and Power gains its force from taking the entire Atlantic world as its scope, examining the marketing, meanings, and consumption of sugar as they changed over time. This essay borrows from each of these two strategies, looking at the history of a single peripatetic family across three long-lived generations, from enslavement in West Africa in the eighteenth century through emancipation during the Haitian Revolution in the …


Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr Jan 2008

Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr

Book Chapters

This essay is based on comments delivered at the Conference on on Entrepreneurship in Low- and Moderate-Income Communities, November 3-4, 2005. This has been a productive conversation. In my closing comments, I want to shift our focus somewhat, from entrepreneurship in low-income communities to minority entrepreneurship generally. I want to do so because many minority entrepreneurs are connected to or hire from low-income communities, and because minority entrepreneurs face critical barriers even when they attempt to create and grow firms outside of distressed communities. In this comment, I want to highlight key barriers and suggest five steps for Congress, the …


Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz Jan 2007

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …


The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott Jan 2006

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.


Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott Jan 2003

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …


Cultural Differences And Discrimination: Samoans Before A Public Housing Eviction Board, Richard O. Lempert, Karl Monsma Jan 1999

Cultural Differences And Discrimination: Samoans Before A Public Housing Eviction Board, Richard O. Lempert, Karl Monsma

Book Chapters

In the 1971 case, Griggs v. Duke Power (401 U.S. 424), the United States Supreme Court held that if an employment test (or other mechanism for screening job applicants) had a disparate impact on a group protected by Title VII of The Civil Rights Act of 1964, discrimination in violation of the Act would be presumed unless the employer could prove the "job-relatedness" of the test. (For details on the Griggs case, see England 1992 chap. 5.) The Griggs case represents a high-water mark in the Supreme Court's jurisprudence of discrimination, for it establishes proof rules that can catch both …


Jury Discrimination, James Boyd White Jan 1986

Jury Discrimination, James Boyd White

Book Chapters

Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or …


Minority Preferences In Law School Admissions, Terrance Sandalow Jan 1980

Minority Preferences In Law School Admissions, Terrance Sandalow

Book Chapters

In addressing the subject of "reverse discrimination," I want to caution at the outset against permitting the use of the word "discrimination" to prejudice consideration of the subject. "Discrimination" has, in recent years, become a bad word. It tends to be used as a shorthand for "unjustifiably unequal treatment." In its original and still proper meaning, however, the word is quite neutral. Discrimination merely means differentiation. It comes from a Latin word that means "to distinguish." Accordingly, when we discriminate-i.e., when we differentiate or distinguish-among people, the propriety of our action depends upon the reasons that we have acted as …


Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow Jan 1977

Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow

Book Chapters

... Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government

...Professor Ely [see pp. 208-216, herein] defends the constitutionality of racial preferences, essentially on the ground that the equal-protection clause should not be read to prevent a majority from discriminating between itself and a minority only to its own disadvantage. The predicate for an active judicial role is lacking, ... …


An Introduction To Riot Legislation, Jerold H. Israel Jan 1970

An Introduction To Riot Legislation, Jerold H. Israel

Book Chapters

My speech will provide an introduction to criminal code legislation specifically pertaining to riots and a brief description of our recent experience with riots. Hopefully, this description, supplemented by the film on the Detroit riot, will provide an appropriate factual background for both the remainder of my own talk and the analyses of proper police procedures during riots (and other civil disorders) to be presented by Major Brown and Professor Martin.


The School Desegregation Cases In Retrospect—Some Reflections On Causes And Effects, Yale Kamisar Jan 1969

The School Desegregation Cases In Retrospect—Some Reflections On Causes And Effects, Yale Kamisar

Book Chapters

Recently, when asked to give a lecture on appellate advocacy, Justice Thurgood Marshall reminded his audience what Judge Benjamin Cardozo had once said: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by." An outstanding example, he might have added, is Brown v. Board of Education.

In a sense, the significant changes which have occurred in the Black man's status in the last two decades had their beginnings in the rise of numerically, and hence politically, important Black communities in the North. For the importance of civil rights …