Law Commons^™

Discretionary Pricing, Mortgage Discrimination, And The Fair Housing Act, Robert G. Schwemm, Jeffrey L. Taren

Law Faculty Scholarly Articles

For generations, mortgage lending has always been the gateway to the American dream of homeownership, and, historically, has also been characterized by widespread discrimination against racial and ethnic minorities and their communities. Mortgage discrimination in the modem era has often been accomplished through a technique known as discretionary pricing, in which lenders allow their loan officers and brokers to increase borrowers' costs from an objectively determined base rate. In the past decade alone, discretionary pricing has cost minority homeowners billions of dollars in extra payments, which, in tum, has led these minorities to suffer higher foreclosure rates than whites and …

Equally Insured? Lasting Insurance Industry Reform Came Only With A Rethinking Of Race, Mary L. Heen

Law Faculty Publications

Earlier this decade, some of America’s best-known life insurance companies quietly settled multimillion-dollar civil rights lawsuits challenging race-based life insurance rates and benefits. As a result, those companies closed a chapter of American economic history that began after the Civil War with the door-to-door marketing of small individual life insurance policies to poor workers, including former slaves, and their families. The closing of this chapter in history also marked the end of a form of Jim Crow race discrimination largely invisible to the American public.

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Another Hair Piece: Exploring New Strands Of Analysis Under Title Vii, Angela Onwuachi-Willig

Faculty Scholarship

This Essay re-examines antidiscrimination case law that allows employers to enforce hair grooming policies that prohibit natural hairstyles for black women, such as braids, locks, and twists. In so doing, this Essay sets forth an intersectional, biological - as opposed to cultural - argument for why such bans are discriminatory under Title VII. Specifically, this Essay argues that antidiscrimination law fails to address intersectional race and gender discrimination against black women through such grooming restrictions because it does not recognize braided, twisted, and locked hairstyles as black-female equivalents of Afros, which are protected as racial characteristics under existing law. The …

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Social Justice Feminism, Kristin (Brandser) Kalsem, Verna L. Williams

Faculty Articles and Other Publications

For the past three years, women leaders from national groups, grassroots organizations, academia and beyond have gathered to address dissonance in the women's movement, particularly dissatisfaction with the movement's emphasis on women privileged on account of their race, class, or sexuality. At these meetings of the New Women's Movement Initiative (NWMI), advocates who no longer want to do feminism have articulated a desire for social justice feminism. This article analyzes what such a shift might mean for feminist practice and legal theory.

Drawing on history, specifically the work of the women behind the Brandeis brief in the Muller v. Oregon …

Stratification Of The Welfare Poor: Intersections Of Gender, Race & "Worthiness" In Poverty Discourse And Policy, Bridgette Baldwin

Faculty Scholarship

This Article analyzes the historical, cultural and legal treatments and representations of poor black women from Progressive Era philanthropic aid to early "work-to-welfare" reform protocol. When black women serve as the case study for a larger examination of social policy issues we see that welfare was rarely meant to remedy the structural crunch of poverty. Working class black women have been at the center of the construction of the poor and serve as the designation to determine which people deserve to be compensated for being poor.

Furthermore, the Author discusses both the ramifications and rationale of why the government never …

A Bittersweet Heritage: Learning From The Making Of South African Legal Culture, Stephen Ellmann

Articles & Chapters

This essay responds to Martin Chanock's argument that race tainted the entire enterprise of South African judging. It seeks to understand how that could have been so, and looks to such driving forces as whites' guilt, denial, identity-building, self-protection, and legitimation for explanations. Then it asks whether an institution so tainted should now be altogether abandoned as part of the rebuilding of post-apartheid South Africa. The essay answers that much should be changed, but that the existence of a judiciary laying claim to a special expertise and responsibility in interpreting law and protecting rights a key heritage of the old …

The Meeting: A Transformational Train Ride Through Race In America And Apartheid In South Africa, Joseph Karl Grant

Journal Publications

No abstract provided.

Racializing Disability, Disabling Race: Policing Race And Mental Status, Camille Nelson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman

Faculty Scholarship

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a …

Collateral Consequences Of Criminal Convictions: Confronting Issues Of Race And Dignity, Michael Pinard

Faculty Scholarship

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, …

Book Review: What Comes Naturally: Miscegenation Law And The Making Of Race In America, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

Publications

This article revises widespread application of the racialization thesis to Arabs, Muslims, and South Asians following September 11. It suggests in its place an “alienation thesis” to describe the formation of an alien identity for those perceived and treated as noncitizens. This thesis draws on Asian American and critical race scholarship to re-interpret sociological understandings of the post-September 11 response to Arabs, Muslims, and South Asians. The article concludes that shifting conceptions of this phenomenon is critical to reforming “alienating” practices that function not only to cause harm to their intended targets, but also to distort the legal requirements of …

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

Journal Articles

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 …

Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson

All Faculty Scholarship

This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick

All Faculty Scholarship

The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Publications

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

In Praise Of Martin Chanock, Stephen Ellmann, Heinz Klug, Penelope Andrews

Articles & Chapters

No abstract provided.

The Unspoken Voices Of Indigenous Women In Immigration Raids, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

The voices of the most vulnerable populations often point towards social constructs in dire need of systemic change. The treatment of immigrant women in workplace raids exemplifies this concept. Over the last couple of years, Immigration and Customs Enforcement, a division of the Department of Homeland Security, has executed several workplace raids to deport undocumented immigrants who are unauthorized to work in this country. When discussing workplace raids, most news articles focus on the mass deportation of men, this paper will take a different perspective, and examine indigenous immigrant Guatemalan women’s stories in migrating to the United States, seeking employment …

Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents, Adjoa A. Aiyetoro, Adrienne D. Davis

Faculty Scholarship

Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three law suits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an …

Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N’Cobra) And Its Antecedents, Adrienne D. Davis, Adjoa A. Aiyetoro

Scholarship@WashULaw

Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three law suits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an …

Race, American Law And The State Of Nature, George A. Martinez

Faculty Journal Articles and Book Chapters

This article advances a new theoretical framework to help explain and understand race and American law. In particular, the article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, this article argues that there is a tendency for the dominant group to act as though it were in the state of …

The Struggling Class: Replacing An Insider White Female Middle Class Dream With A Struggling Black Female Reality, Angela Mae Kupenda

Journal Articles

“What is the appropriate role of former outsiders who are now on the inside?” I propose that the appropriate role for an outsider who is now an insider, is not to sprawl out on plush, white, crushed velvet sofas, sipping vintage wines or imported teas and nibbling at aged cheese and delicate crackers while enjoying being one among a quota or token few that made it to the inside. Rather, the role of a former outsider is to go to work from the inside to dismantle the house, shrewdly using available tools to remove the nails from the walls, loosening …

Discrimination Redefined, Ann C. Mcginley

Scholarly Works

In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

Scholarly Works

This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Scholarship@WashULaw

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community. Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

Negotiating The Situation: The Reasonable Person In Context, Lu-In Wang

Articles

This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics - not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or …