Law Commons^™

Reflections On Augusta: Judicial, Legislative And Economic Approaches To Private Race And Gender Consciousness, Scott R. Rosner

University of Michigan Journal of Law Reform

In light of the recent controversy surrounding Augusta National Golf Club's exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members' claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under which …

Breaking The Camel's Back: A Consideration Of Mitigatory Criminal Defenses And Racism-Related Mental Illness, Camille A. Nelson

Michigan Journal of Race and Law

This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent …

In The Supreme Court Of The United States Barbara Grutter, Petitioner, V. Lee Bollinger, Et Al., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit, Jerome S. Hirsch, Joseph N. Sacca, Scott D. Musoff, Mark Lebovitch, Linda M. Wayner

Michigan Journal of Gender & Law

Brief of the University of Michigan Asian Pacific American Law Students Association, the University of Michigan Black Law Students' Alliance, the University of Michigan Latino Law Students Association, and the University of Michigan Native American Law Students Association as Amici Curiae in Support of Respondents

Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe

Michigan Journal of Race and Law

Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. …

Regulating Target Marketing And Other Race-Based Advertising Practices, Ross D. Petty, Anne-Marie G. Harris, Toni Broaddus, William M. Boyd Iii

Michigan Journal of Race and Law

Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to regulate …

Prologue: Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Luke Charles Harris

Michigan Journal of Race and Law

The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.

Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Mary Mack Adu Esq.

Michigan Journal of Race and Law

In the Supreme Court of the United States. Barbara Grutter V. Lee Bollinger

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

Power, Possibility And Choice: The Racial Identity Of Transracially Adopted Children, Twila L. Perry

Michigan Journal of Race and Law

Review of The Ethics of Transracial Adoption by Hawley Fogg-Davis

"The Implicit Association Test": A Measure Of Unconscious Racism In Legislative Decision-Making, Reshma M. Saujani

Michigan Journal of Race and Law

This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if …

Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett

Michigan Journal of Race and Law

As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

Land And Liberation: Lessons For The Creation Of Effective Land Reform Policy In South Africa, Hasani Claxton

Michigan Journal of Race and Law

Based upon the premise that land reform is essential to creating socio-economic equality, easing racial tensions and stemming the tide of violence in South Africa, this note will provide suggestions for effective land reform policy. To accomplish this, this Note will examine the paths taken by several other transitional African governments in land reform policy. It will attempt to extract practical lessons from their experiences and apply them towards the development of effective land redistribution policy in South Africa. Part I of this note will provide a historical overview of colonialism and land law in Africa. Part II will examine …

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …

How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

The past decade has witnessed numerous high-profile criminal trials in which controversial verdicts have been attributed to racethe race of the defendant, the racial composition of a jury, an attorney "playing the race card," and so on. A predominantly Black jury's acquittal of O.J. Simpson and White jurors' leniency in the police brutality cases of Rodney King and Amadou Diallo not only sparked public debate, but also led to rioting and violence. In the wake of trials such as these, many have questioned the viability of the American jury system.' More specific questions regarding the influence of race on jury …

Strangers And Brothers: A Homily On Transracial Adoption, Carl E. Schneider

Articles

The common law speaks to us in parables. Ours is Drummond v. Fulton County Department of Family and Children's Services. Just before Christmas 1973, a boy named Timmy was born to a white mother and a black father. A month later, his mother was declared unfit, and the Department of Family and Children Services placed Timmy with white foster parents - Robert and Mildred Drummond. The Drummonds were "excellent" and "loving" parents, and Timmy grew into "an extremely bright, highly verbal, outgoing 15-month baby boy." Then the Drummonds asked to adopt Timmy. The Department's reviews of the Drummonds' devotion …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

Articles

Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

Articles

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …