Law Commons^™

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

Andrea A. Curcio

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam the led to the Supreme Court decision in Ricci v. DiStefano, as well as …

Embodying The Population: Five Decades Of Immigrant/Integration Policy In Sweden, Leila Brännström

Leila Brännström

Agency, Equality, And Antidiscrimination Law, Tracy E. Higgins, Laura A. Rosenbury

Laura A. Rosenbury

Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state. In this Essay, we do not enter this debate …

The False Choice Between Race And Class And Other Affirmative Action Myths, Lisa R. Pruitt

Lisa R Pruitt

Identity Matters, Sharon E. Rush

Sharon E. Rush

From the Sixth Annual LatCrit Conference in Gainesville, Florida on April 26-29, 2001. Cluster VII: Race, Gender, and Sexuality

Reflections On Racism And World Order, Winston P. Nagan

Winston P Nagan

This Article is about international racism. Racism is not simply a local or national phenomenon, it is an immense global problem. Indeed, its tentacles stretch from the local to the global and back to the local. Let us put the picture of international racism into perspective by tying it to the claims made to eradicate racism in economic relations. Apart from affirmative action, there are two other approaches: either to assert the notion that reparations is a way to ameliorate the worst manifestations of racism and provide for racial justice, or to join that with the notion that there is …

Social Security Reform: Risks, Returns, And Race, Dorothy A. Brown, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

The debate over social security reform has far-reaching implications for the economic well-being of blacks and other minority groups. In this article, we examine how blacks have fared under the existing system, and then consider the likely consequences of moving toward a privatized system. Specifically, we consider the claim, recently advanced by some privatizers, that blacks receive an especially "bad deal" under the existing system and would be better off under a privatized system. We find that, for blacks as a group, this claim tends to overstate both the shortcomings of the existing system and the advantages of privatization. Furthermore, …

Latinas, Culture And Human Rights: A Model For Making Change, Saving Soul, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

This essay provides an overview of progresses achieved for women in the Americas by virtue of the use of the human rights model to further women's rights and attain betterment of their lives. Specifically, this work reviews the location of Latinas both within and outside the United States fronteras. As women of color within larger U.S. society and as women within their comunidad Latina, Latinas experience different multifaceted subordinations. A human rights model that recognizes the multidimensional nature of gendered racial discrimination and of racialized gender discrimination can serve to improve the lives of Latinas as well as non-Latina women …

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Sahar F. Aziz

No abstract provided.

Bail: Reforming Policies To Address Overcrowded Jails, The Impact Of Race On Detention, And Community Revival In Harris County, Texas, Marcia Johnson, Luckett Anthony Johnson

Marcia A Johnson

Starting in the 1970s, the U.S. federal government and many state and local governments adopted “get tough” policies against crime. These new strict policy initiatives produced an explosion of incarceration in prisons throughout the country. They also impacted local jails as well, particularly in the numbers of persons detained pre-trial. This Article explores this phenomenon and its implications for local governments, as well as its unforeseen consequences on communities, particularly communities of color. The Article uses Harris County, Texas to exemplify the systematic problems resulting from the over-jailing of its citizens, particularly persons who are detained pre-trial. We attempt to …

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Victor C. Romero

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Interrogating Iqbal: Intent, Inertia, And (A Lack Of) Imagination, Victor C. Romero

Victor C. Romero

In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court …

Race Indeed Above All: A Reply To Professors Andrea Curcio, Carol Chomsky, And Eileen Kaufman, Dan Subotnik

Dan Subotnik

This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination. This article specifically responds to Andrea A. Curcio, Carol L. Chomsky, and Eileen Kaufman’s article, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others.

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

Darren L Hutchinson

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

The Way Of Colorinsight: Understanding Race And Law Effectively Through Mindfulness-Based Colorinsight Practices, Rhonda Magee

Rhonda V Magee

Most of us know that, despite the counsel of the current Supreme Court, colorblindness does not comport with our cognitive experience of the real world. Thus legal scholars, backed by cognitive scientists, have called for a move from colorblindness to color insight -- defined as an understanding of race and its pervasive operation in our lives and in the law. This Article is the first to explore the role of research-grounded mindfulness-based contemplative practices in enhancing what may be called Colorinsight, and to suggest specific practices that assist in its development not only of personal capacity to deal more effectively …

A Majority-Minority Nation: Racing The Population In The Twenty-First Century, John A. Powell

john a. powell

This article explores the factors that affect the creation of racial classifications and how they are reflected in the Census categories, particularly in regard to the classification of Hispanics. The article argues that an increase in racial minorities will not solely stop white racial domination of political power structures because of entrenched racial policies and practices. To end this domination, racial minorities must organize and collaborate to take down these racially oppressive structures.

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for …

Acting White? Or Acting Affluent? A Book Review Of Acting White? Rethinking Race In "Post-Racial" America, Lisa Pruitt

Lisa R Pruitt

Acting White? Rethinking Race in “Post-Racial” America (2013) is the latest installment in Devon Carbado and Mitu Gulati’s decade-plus collaboration regarding issues of race and employment. This review lauds the book’s comprehensive treatment of the double bind that racial minorities—especially blacks—experience within principally white institutions. In this volume, the authors expand on their prior employment-centered work to consider, for example, Barack and Michelle Obama’s presence on the national political stage, racial identity and performance in the context of higher education admissions, and racial profiling by law enforcement. With a focus on intra-racial diversity, Carbado and Gulati begin to gesture to …

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …

The False Choice Between Race And Class And Other Affirmative Action Myths, Lisa R. Pruitt

Lisa R Pruitt

This article refutes the widely held assumption that affirmative action is appropriate either to support only racial and ethnic minorities or to support only low-income students, but that it cannot or should not support both. Pruitt argues that we need not make such a choice and that we should aspire to socioeconomically diversify higher education institutions—including the most elite sector—with low-income students of all colors. Pruitt thus disputes the framing of Richard Kahlenberg and Richard Sander who have long argued that we should seek socioeconomic diversity in lieu of racial/ethnic diversity, a stance that has needlessly pitted underrepresented minorities against …