Law Commons^™

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

Incentivizing Fair Housing, Stewart E. Sterk

Articles

Restrictive land use regulation has thwarted the upward mobility of many Americans, particularly Americans of color. Local restrictions imposed by affluent municipalities have limited access to safe neighborhoods, better housing, and good schools. Racism and economic self-interest have both played a role in exclusionary practices which have contributed to high housing costs that place a strain on the entire economy.

Fair Housing Act litigation has been one weapon in the fight against these practices. Despite the Supreme Court's decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. , disparate impact litigation faces significant obstacles that …

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 …

Integration Reclaimed: A Review Of Gary Peller's Critical Race Consciousness, Michelle Adams

Articles

Integration occupies a contested and often paradoxical place in legal and public policy scholarship and the American imagination. Today, more Americans are committed to integration than ever before. Yet this attachment to integration is hardly robust. There is a widespread perception that integration has failed. A vanishingly small percentage of social and economic resources are spent on integration. At the same time, some progressives and those who would otherwise consider themselves on the "left" criticize integration as insufficiently attentive to economic equality and dismissive of black identity and culture. Scholars from across the political spectrum have sought to explain this …

Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams

Articles

In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …

The Historical Race Competition For Corporate Charters And The Rise And Decline Of New Jersey: 1880-1910, Charles M. Yablon

Articles

No abstract provided.

Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …

The Law Of White Spaces: Race, Culture, And Legal Education, Peter Goodrich, Linda G. Mills

Articles

The scene, drawn from memory, is a first-year law school classroom. It is the early 1980s and the class is on civil procedure. The teacher is a white woman. She is nervous, and the class is dominated by students who provide standard right answers to formulaic law school questions. Other points of view, particularly those of a critical or feminist nature, are either passed over quickly or ignored. Questions of color are never mentioned. More than that, the teacher never calls on any African-American students. Students of color are either ignored completely or told, when they have questions, “We are …

Asset Protection Trusts: Trust Law's Race To The Bottom?, Stewart E. Sterk

Articles

No abstract provided.