Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law and Race (40)
- Civil Rights and Discrimination (39)
- Supreme Court of the United States (16)
- Election Law (15)
- Law and Society (15)
-
- Constitutional Law (13)
- Courts (13)
- Legislation (11)
- Criminal Law (10)
- Social and Behavioral Sciences (9)
- Fourteenth Amendment (8)
- Labor and Employment Law (8)
- Sociology (8)
- Law Enforcement and Corrections (6)
- Legal History (6)
- Race and Ethnicity (6)
- Anthropology (5)
- Inequality and Stratification (5)
- Jurisprudence (5)
- Social and Cultural Anthropology (5)
- Criminal Procedure (4)
- Economics (4)
- Law and Politics (4)
- Health Law and Policy (3)
- Judges (3)
- Political Economy (3)
- Public Affairs, Public Policy and Public Administration (3)
- Science and Technology Law (3)
- Social Justice (3)
- Institution
Articles 1 - 30 of 52
Full-Text Articles in Law
Surveillance Normalization, Christian Sundquist
Surveillance Normalization, Christian Sundquist
Articles
Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …
Resurrecting Arbitrariness, Kathryn E. Miller
Resurrecting Arbitrariness, Kathryn E. Miller
Articles
What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …
Reframing Hate, Lu-In Wang
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? …
Race Belongs In Week One Of Lrw, Beth H. Wilensky
Race Belongs In Week One Of Lrw, Beth H. Wilensky
Articles
I talk to my 1Ls about race and the law in their first week of law school. In doing so, I have discovered that discussing race helps me introduce foundational concepts about legal writing and law school that we will return to throughout the year. That is partly because race is relevant to nearly every topic law school touches on. But it is also because race is present in—and often conspicuous in its absence from—court opinions in ways that provide rich fodder for discussing how to approach law school. That topic interests all students—even those who might be skeptical about …
Pandemic Surveillance Discrimination, Christian Sundquist
Pandemic Surveillance Discrimination, Christian Sundquist
Articles
The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …
The Eighth Amendment Power To Discriminate, Kathryn E. Miller
The Eighth Amendment Power To Discriminate, Kathryn E. Miller
Articles
For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.' After decades of attempting to eliminate the requirement, conservative justices …
Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton
Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton
Articles
No abstract provided.
The Blues And The Rule Of Law: Musical Expressions Of The Failure Of Justice, David Pimentel
The Blues And The Rule Of Law: Musical Expressions Of The Failure Of Justice, David Pimentel
Articles
No abstract provided.
Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle
Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle
Articles
This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …
Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz
Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz
Articles
Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
Articles
Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …
Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb
Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb
Articles
No abstract provided.
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Articles
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …
The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr
The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr
Articles
This paper adds to the empirical evidence that criminal records are a barrier to employment. Using data from 2,655 online applications sent on behalf of fictitious male applicants, we show that employers are 60 percent more likely to call applicants that do not have a felony conviction. We further investigate whether this effect varies based on applicant race (black versus white), crime type (drug versus property crime), industry (restaurants versus retail), jurisdiction (New Jersey versus New York City), local crime rate, and local racial composition. Although magnitudes vary somewhat, in every subsample the conviction effect is large, significant, and negative.
Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.
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.
Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos
Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos
Articles
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being. In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that …
Dismissing Deterrence, Ellen D. Katz
Dismissing Deterrence, Ellen D. Katz
Articles
The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.
Economic Interest Convergence In Downsizing Imprisonment, Spearit
Economic Interest Convergence In Downsizing Imprisonment, Spearit
Articles
This Essay employs a variation of the “interest convergence” concept to examine the competing interests at stake in downsizing imprisonment in the United States. In the last few decades, the country has become the world leader in both incarceration rates and number of inmates. Reversing these trends is a common goal of multiple parties, who advocate prison reform under different rationales. Some advocate less imprisonment as a means of tempering the disparate effects of imprisonment on individual offenders and the communities to which they return. Others support downsizing based on conservative values that favor reduced government size, spending, and interference …
The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.
The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.
Articles
This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …
Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos
Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos
Articles
After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …
The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos
The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos
Articles
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Articles
The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and …
What Was Wrong With The Record?, Ellen D. Katz
What Was Wrong With The Record?, Ellen D. Katz
Articles
Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.
South Carolina's 'Evolutionary Process', Ellen D. Katz
South Carolina's 'Evolutionary Process', Ellen D. Katz
Articles
When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Articles
Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.
A Cure Worse Than The Disease?, Ellen D. Katz
A Cure Worse Than The Disease?, Ellen D. Katz
Articles
The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.
On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz
On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz
Articles
The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
Articles
The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death than white …
The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist
The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist
Articles
This Article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. This examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. The Article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” Relying on insights from System Justification Theory, a burgeoning field of social psychology, the Article argues that the seemingly incoherent results in racial standing cases can be understood as …
Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan
Articles
Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …