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Full-Text Articles in Law

Bivens In The End Zone: The Court Punts To Congress To Make The Right (Of Action) Play, Gilbert Paul Carrasco May 2021

Bivens In The End Zone: The Court Punts To Congress To Make The Right (Of Action) Play, Gilbert Paul Carrasco

University of Miami Race & Social Justice Law Review

No abstract provided.


Border Solutions From The Inside, Raquel E. Aldana May 2021

Border Solutions From The Inside, Raquel E. Aldana

University of Miami Race & Social Justice Law Review

No abstract provided.


Covid-19 And The Caregiving Crisis: The Rights Of Our Nation’S Social Safety Net And A Doorway To Reform, Leanne Fuith, Susan Trombley May 2021

Covid-19 And The Caregiving Crisis: The Rights Of Our Nation’S Social Safety Net And A Doorway To Reform, Leanne Fuith, Susan Trombley

University of Miami Race & Social Justice Law Review

On March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children ...


Covid-19, Lying, Mask-Less Exposures And Disability During A Pandemic, Madeleine M. Plasencia May 2021

Covid-19, Lying, Mask-Less Exposures And Disability During A Pandemic, Madeleine M. Plasencia

University of Miami Race & Social Justice Law Review

This article focuses on disability law in the context of COVID-19. In dealing with this pandemic, businesses, schools and other covered entities have to navigate and manage (at least) three different categories of people congregating. First are those who act as if there were no pandemic at all; they simply do not care if they are contagious and insist upon not complying with safety precautions, such as mask-wearing and social distancing; second are people who have medical conditions that make them especially vulnerable and at high-risk for severe symptoms associated with the infection; third are people who have already contracted ...


Some Objections To Strict Liability For Constitutional Torts, Michael Wells Apr 2021

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

Scholarly Works

Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers ...


Hair Goes Nothing: Proposing The Uniform Enactment Of The Crown Act Across The United States, Alexandra Halbert Jan 2021

Hair Goes Nothing: Proposing The Uniform Enactment Of The Crown Act Across The United States, Alexandra Halbert

Journal of Race, Gender, and Ethnicity

No abstract provided.


Miscarriage, Stillbirth, & Reproductive Justice, Jill Wieber Lens Jan 2021

Miscarriage, Stillbirth, & Reproductive Justice, Jill Wieber Lens

Washington University Law Review

Each year in the United States, millions of women’s pregnancies end not with the birth of a living child, but in miscarriage or with the birth of a dead, stillborn child. Marginalized women face a higher risk of these undesired endings. Compared to white women, Black women are twice as likely to suffer a late miscarriage and to give birth to a stillborn child. Compared to wealthier women, women of lower socioeconomic status face a heightened risk of miscarriage and are twice as likely to give birth to a stillborn child.

Miscarriage and especially stillbirth are significant life experiences ...


Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman Jan 2021

Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman

Touro Law Review

No abstract provided.


Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate ...


Tainted Precedent, Darrell A. H. Miller Jan 2021

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.


Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson Jan 2021

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape ...


Pursuing Diversity: From Education To Employment, Amy L. Wax Oct 2020

Pursuing Diversity: From Education To Employment, Amy L. Wax

Faculty Scholarship at Penn Law

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce ...


Kofifi/Covfefe: How The Costumes Of "Sophiatown" Bring 1950s South Africa To Western Massachusetts In 2020, Emma Hollows Jul 2020

Kofifi/Covfefe: How The Costumes Of "Sophiatown" Bring 1950s South Africa To Western Massachusetts In 2020, Emma Hollows

Masters Theses

This thesis paper reflects upon the costume design process taken by Emma Hollows to produce a realist production of the Junction Avenue Theatre Company’s musical Sophiatown at the Augusta Savage Gallery at the University of Massachusetts in May 2020. Sophiatown follows a household forcibly removed from their homes by the Native Resettlement Act of 1954 amid apartheid in South Africa. The paper discusses her attempts as a costume designer to strike a balance between replicating history and making artistic changes for theatre, while always striving to create believable characters.


Crisis? Whose Crisis?, Jack Beermann Mar 2020

Crisis? Whose Crisis?, Jack Beermann

Faculty Scholarship

Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and ...


Foreword, Honorable Nathaniel R. Jones Jan 2020

Foreword, Honorable Nathaniel R. Jones

Freedom Center Journal

The articles in this issue of The Freedom Center Journal are timely challenges to the persistent efforts to undermine the American values enshrined in the Preamble of the Constitution and the body of the Constitution itself with its three Civil War Amendments.

The student editors of this volume intended the selected contributions to offer readers a nuanced view of our nation’s current identity crisis. The collection is offered in the hope that it will encourage further thinking and discussion about what it means to be part of the American experiment with democratic self-governance in an age of resurgent white ...


Rules, Tricks And Emancipation, Jessie Allen Jan 2020

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Jan 2020

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence ...


Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose Jan 2020

Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose

Faculty Scholarship

Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury ...


Furtive Blackness: On Blackness And Being, T. Anansi Wilson Jan 2020

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law ...


The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson Jan 2020

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law ...


Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell Jan 2020

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data ...


Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay Oct 2019

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias Aug 2019

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang Aug 2019

Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang

Seattle Journal for Social Justice

No abstract provided.


Bias In, Bias Out, Sandra G. Mason Jun 2019

Bias In, Bias Out, Sandra G. Mason

AI-DR Collection

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment ...


Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance Apr 2019

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance

Jason P. Nance

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S ...


Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay Jan 2019

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Articles

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the ...


A Genealogy Of Programmatic Stop And Frisk: The Discourse-To-Practice-Circuit, Frank Rudy Cooper Oct 2018

A Genealogy Of Programmatic Stop And Frisk: The Discourse-To-Practice-Circuit, Frank Rudy Cooper

University of Miami Law Review

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men.

Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels ...


Section 5'S Forgotten Years: Congressional Power To Enforce The Fourteenth Amendment Before Katzenbach V. Morgan, Christopher W. Schmidt Sep 2018

Section 5'S Forgotten Years: Congressional Power To Enforce The Fourteenth Amendment Before Katzenbach V. Morgan, Christopher W. Schmidt

Northwestern University Law Review

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the ...