Law Commons^™

Corporate Racial Responsibility, Gina-Gail S. Fletcher, H. Timothy Lovelace Jr.

Faculty Scholarship

The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation to extreme progressivism at shareholders’ expense. Others, while thinking corporate engagement was long overdue, critiqued corporate commitment as insincere.

Drawing on historical evidence surrounding the passage of Title II of the Civil Rights Act of …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Reconstruction's Lessons, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

In the current moment in the legal struggle for racial justice in the United States, the Nation appears at risk of repeating its history. The country stands at a time of some hope but more cause for pessimism. The current United States Supreme Court has exhibited hostility towards key legal priorities of the racial justice movement, and all indications point to this trend continuing or getting even worse. Leading commentators on race issues have suggested that the United States is headed back to the post Reconstruction era, sometimes referred to as “Redemption” in reference to southern states’ reassertion of white …

The Problem Is The Court, Not The Constitution, Jonathan Feingold

Faculty Scholarship

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Faculty Scholarship

McCleskey v. Kemp¹ operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.² By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.³ But what if McCleskey had been decided differently? Given that Washington v. Davis⁴ held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”⁵ could McCleskey have articulated an approach to equal protection doctrine …

The Sex Equality Gap: How The 20th Century Sex Equality Paradigm Continues To Leave Women Of Color Behind, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The United States has a sex equality problem that disproportionately impacts women of color. Despite the passage of sweeping federal, state, and local laws that prohibit discrimination on the basis of sex in employment, education, public benefits, housing, healthcare, voting, and in significant aspects of the U.S. economy and society, women — and particularly women of color — continue to experience persistent sex discrimination. These laws, starting with the Equal Pay Act of 1963 and the Civil Rights Act of 1964, make up what we call the 20th Century Sex Equality Paradigm.

At face value, such laws can be …

Table Of Belonging: Exploring Social Reversal At St. Paul's Episcopal Church, Natalie Magnusson

DMin Project Theses

This research project explores the problem of a predominantly white, affluent Episcopal congregation confessing racial justice as a shared value while struggling to embody that conviction. The project pursues the following research question: How might a congregation of the most historically powerful, prominent, and affluent church in the U.S. imagine its life in the Jackson, MI community in light of Luke 14 and encounters with people who experience racial injustice? In the theological chapter, the Tower of Babel narrative in Genesis 11 and the Pentecost narrative in Acts 2 serve as interpretive bookends for Luke 14. In the literature review, …

Affirmatively Furthering Health Equity, Mary Crossley

Articles

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the health care sector, government action, standing alone, is limited in its power to remedy health disparities. This Article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the health care sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal health care funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that …

Advancing Racial Justice Through Civil And Criminal Academic Medical-Legal Partnerships, Yael Cannon, Vida Johnson

Georgetown Law Faculty Publications and Other Works

The medical-legal partnership (MLP) model, which brings attorneys and healthcare partners together to remove legal barriers to health, is a growing approach to addressing unmet civil legal needs. But MLPs are less prevalent in criminal defense settings, where they also have the potential to advance both health and legal justice. In fact, grave racial health inequities are deeply intertwined with both civil and criminal injustice. In both spheres, health justice is racial justice. Building on the experiences of the authors in their respective civil and criminal law school clinics at Georgetown University in Washington, D.C., this Article argues that academic …

Discredited Data, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.

This Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the police, pretrial …

Critical Race Theory: Faq, Candace Bond-Theriault

Center for Gender & Sexuality Law

CRT is not a comprehensive theory of law. Instead, it is an invitation to consider the role that law, even “good” civil rights laws, plays in the creation and maintenance of racial injustice.

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

The Diversity Risk Paradox, Veronica Root Martinez

Faculty Scholarship

There is a growing body of literature discussing the proper role of diversity, equity, and inclusion efforts by and within public firms. A combination of forces brought renewed energy to this topic over the past few years. The #MeToo movement demonstrated a whole host of inequities faced by women within workplaces. Business Roundtable’s 2019 Statement on the Purpose of a Corporation rejected the view that the purpose of the corporation was solely to be focused on the maximization of shareholder wealth. And, in 2020, the murder of George Floyd ignited a racial reckoning within the United States, which prompted many …

Race And Guns, Courts And Democracy, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle and Pistol Association v. Bruen, it is especially prominent in the brief of legal aid attorneys and public defenders who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.

In this Essay we address issues …

Blinding Justice And Video Conferencing?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might dispute resolution processes for civil matters conducted on video conferencing be designed to reduce racial justice inequities and increase Black participants’ sense of procedural justice? In March 2020, responding to Covid-19 pandemic health concerns, all in-person, court-connected, and private dispute resolution processes shifted to video conferencing. Proponents of video conferencing have long touted how video conferencing would increase access to justice by providing an efficient, cost-effective, and time-saving alternative to in-person appearances. An unexplored question in March 2020 was how video conferencing would affect racial justice inequities. Black individuals and other marginalized groups were already disproportionately suffering …

This Is Not A Drill: The War Against Antiracist Teaching In America, Kimberlé W. Crenshaw

Faculty Scholarship

On January 5, 2022, Professor Kimberlé Williams Crenshaw received the 2021 Triennial Award for Lifetime Service to Legal Education and the Legal Profession from the Association of American Law Schools (AALS). In this modified acceptance speech delivered at the 2022 AALS Awards Ceremony, she reflects on the path that brought her to this moment and the crisis over antiracist and social justice education that is unfolding today. Arguing that the legal academy bears a collective responsibility to fight back against the silencing of antiracist frameworks, she calls on legal educational institutions to confront their historical agnosticism toward racial subordination and …

Towards Racial Justice: The Role Of Medical-Legal Partnerships, Medha D. Makhlouf

Faculty Scholarly Works

Medical-legal partnerships (MLPs) integrate knowledge and practices from law and health care in pursuit of health equity. However, the MLP movement has not reached its full potential to address racial health inequities, in part because its original framing was not explicitly race conscious. This article aims to stimulate discussion of the role of MLPs in racial justice. It calls for MLPs to name racism as a social determinant of health and to examine how racism may operate in the field. This work sets the stage for the next step: operationalizing racial justice in the MLP model, research, and practice.

A Lineage Of Family Separation, Anita Sinha

Articles in Law Reviews & Other Academic Journals

This article is rooted in the belief that the articulation of shared narrative histories advances the pursuit of justice. Acknowledging shared histories, including narratives that justify unjust practices has been a shortcoming in the United States, particularly when it comes to racial injustice. Included in this oversight is the history of executing and sanctioning family separation. The US government's separation of families under the "zero tolerance" policy, which was in effect over approximately two and a half months, drew national and international criticism.

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

In summer 2020, mass protests spread across the globe challenging police brutality and racial injustice and demanding change. Fueled by the Black Lives Matter (BLM) movement in the wake of the police murder of George Floyd, these protests drew 15 million to 26 million participants in the United States alone to participate in late May and June of 2020. The sheer scale of these protests made them the largest movement in U.S. history. While there has been some consensus that this unprecedented protest movement pushed social awareness and changed the national conversation around race, existing research has yet to clearly …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

#Blacklivesmatter—Getting From Contemporary Social Movements To Structural Change, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

From the haters and hackers to propaganda and privacy concerns, social media often deserves its bad reputation. But the sustained activism that followed George Floyd’s death and the ongoing movement for racial justice also demonstrated how social media can be a crucial mechanism of social change. We saw how online and on-the-ground activism can fuel each other and build momentum in ways neither can achieve in isolation. We have seen in the Black Lives Matter (BLM) movement, and more specifically the hashtag #BlackLivesMatter, a new and powerful approach to using social media that goes beyond symbolic “slacktivism” and performative allyship …

Are We Giving Them A Fair Chance? Racial Stereotypes And The Juvenile Justice System, Cali Bloem

Honors Program Theses and Projects

Prior research indicates that there are racial disparities throughout the criminal justice system, including the juvenile justice system, and that decision-makers may use stereotypes when determining guilt and deciding on sentences for juveniles. We used a mock juror study design in which participants were randomly assigned to read one of four trial summaries of an assault committed by either a White juvenile or Latinx juvenile, with the victim being a White juvenile or Latinx juvenile. The participants were asked to provide a verdict and sentencing decision and explain why they chose the sentence that they did. They were also tasked …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

Of Protest And Property: An Essay In Pursuit Of Justice For Breonna Taylor, H. Timothy Lovelace Jr.

Faculty Scholarship

In March 2020, Louisville police officers fatally shot Breanna Taylor in her apartment while executing a no-knock warrant. There was great outrage over the killing of the innocent woman, and Kentucky Attorney General Daniel Cameron led an investigation of the officer-involved shooting.

Activists protested in Louisville after Taylor's killing, and when Cameron's investigation appeared stalled, these activists even conducted a sit-in on Cameron's front lawn. They demanded immediate justice for Taylor. Cameron sharply responded, lecturing the activists on how to achieve justice. He contended that neither trespassing on private property nor escalation in tactics could advance the cause of justice. …

Equality Metrics, Veronica Root Martinez, Gina-Gail S. Fletcher

Faculty Scholarship

This time is different. This time the death of another Black man at the hands of white police officers prompted calls for change not only within police departments, but across all aspects of American life. Those calls for change resulted in significant displays of support for the Black Lives Matter movement and interest in how to eliminate systemic racism and promote racial diversity and justice within one’s daily life and workplace. For the most part, corporations were quick to publicly align themselves with the movement. When carefully examined, however, many of the statements issued by corporations in support of the …

The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu

Faculty Scholarship

No abstract provided.

Beyond "Children Are Different": The Revolution In Juvenile Intake And Sentencing, Joshua Gupta-Kagan

Faculty Scholarship

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can …

The Ties That Bind: What Pauli Murray Teaches Us About Race, Family, Slavery, And Inequality, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Pauli Murray is an unsung American hero. The modern-day understanding of equality and the legal arguments used to obtain it for various groups including African Americans, women, and the LGBTQ community were the brainchild of Pauli Murray. This essay illustrates how Dr. Murray’s family history is emblematic of the struggle for racial justice and equality in America. The pain and tenacity of her ancestors shaped her destiny and spurred her activism. Her family experiences illuminate the many ways that the foothold of structural racism began with placing insurmountable legal barriers between Black men, women, and children as a family unit. …