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Reckoning With Race And Disability, Jasmine E. Harris Jan 2021

Reckoning With Race And Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars ...


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 ...


How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman Jul 2020

How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman

Faculty Scholarship at Penn Law

This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights.

This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting ...


Misdemeanors By The Numbers, Sandra G. Mayson, Megan T. Stevenson Jan 2020

Misdemeanors By The Numbers, Sandra G. Mayson, Megan T. Stevenson

Faculty Scholarship at Penn Law

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions ...


The Aesthetics Of Disability, Jasmine E. Harris Jan 2019

The Aesthetics Of Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce preju­dicial atti­tudes and shift societal norms. However, neither the scholarship nor disa­bility law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with dis­ability is medi­ated by an affective process that inclines us to like, dislike, be attracted ...


After Suffrage: The Unfinished Business Of Feminist Legal Advocacy, Serena Mayeri Jan 2019

After Suffrage: The Unfinished Business Of Feminist Legal Advocacy, Serena Mayeri

Faculty Scholarship at Penn Law

This Essay considers post-suffrage women’s citizenship through the eyes of Pauli Murray, a key figure at the intersection of the twentieth-century movements for racial justice and feminism. Murray drew critical lessons from the woman suffrage movement and the Reconstruction-era disintegration of an abolitionist-feminist alliance to craft legal and constitutional strategies that continue to shape equality law and advocacy today. Murray placed African American women at the center of a vision of universal human rights that relied upon interracial and intergenerational alliances and anticipated what scholars later named intersectionality. As Murray foresaw, women of color formed a feminist vanguard in ...


Bias In, Bias Out, Sandra G. Mayson Jan 2018

Bias In, Bias Out, Sandra G. Mayson

Faculty Scholarship at Penn Law

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 impacts. 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 ...


Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis Jan 2018

Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis

Faculty Scholarship at Penn Law

Sital Kalantry’s Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India addresses a long-existing gap in feminist theory at the intersection of a migrant woman’s experience and culturally motivated reproductive decisions. By recognising the possibility that ‘practices that are oppressive to women in one country context may not have a negative impact on women in another country context’ Kalantry takes an important step in creating a framework for evaluating competing human rights interests within the complex cultural contexts that arise in migrant-receiving countries. Her proposed framework rejects the decontextualisation and politicisation ...


The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin Jan 2018

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

Faculty Scholarship at Penn Law

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live ...


The Ironies Of Affirmative Action, Kermit Roosevelt Iii Jan 2015

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs ...


Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii Jan 2015

Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the ...


Waiting For Perseus: A Sur-Reply To Professors Graetz And Warren, Ruth Mason, Michael S. Knoll Jan 2014

Waiting For Perseus: A Sur-Reply To Professors Graetz And Warren, Ruth Mason, Michael S. Knoll

Faculty Scholarship at Penn Law

This manuscript responds to Income Tax Discrimination: Still Stuck in a Labyrinth of Impossibility by Professors Michael Graetz and Alvin Warren (121 Yale L.J. 1118). In that article, Professors Graetz and Warren challenge many of the arguments we made in our own article entitled, “What is Tax Discrimination?” (121 Yale L.J. 1014). In our earlier article, we set out to accomplish two goals. First, we sought to identify the principle behind the doctrine of tax discrimination as that doctrine is applied by the U.S. Supreme Court and the Court of Justice of the European Union (ECJ) and ...


The Social Context Of Oncofertility, Dorothy E. Roberts Jan 2012

The Social Context Of Oncofertility, Dorothy E. Roberts

Faculty Scholarship at Penn Law

A field known as oncofertility provides female cancer patients with a variety of ways to preserve their fertility so that they may bear genetically related children after successful cancer treatment. Some women delay cancer therapy so doctors can collect their eggs, which are then cryopreserved in an unfertilized state or used to create embryos through in vitro fertilization for freezing. An experimental procedure for preserving the fertility of prepubertal girls, known as ovarian tissue cryopreservation, involves surgically removing their ovarian tissue and growing the immature eggs to a mature state so they can be frozen and stored until the girls ...


The Genetic Information Nondiscrimination Act (Gina): Public Policy And Medical Practice In The Age Of Personalized Medicine, Eric A. Feldman Dec 2011

The Genetic Information Nondiscrimination Act (Gina): Public Policy And Medical Practice In The Age Of Personalized Medicine, Eric A. Feldman

Faculty Scholarship at Penn Law

Survey data suggest that many people fear genetic discrimination by health insurers or employers. In fact, such discrimination has not yet been a significant problem. This article examines the fear and reality of genetic discrimination in the United States, describes how Congress sought to prohibit such discrimination by passing the Genetic Information Nondiscrimination Act of 2008 (GINA), and explores the implications of GINA for general internists and their institutions. It concludes that medical providers and health care institutions must be familiar with the general intent and specific terms of GINA, and should continue to collect genetic information that can contribute ...


Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez Jun 2011

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

Faculty Scholarship at Penn Law

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to ...


Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts Apr 2011

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

Faculty Scholarship at Penn Law

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the ...


Fatal Invention: How Science, Politics, And Big Business Re-Create Race In The Twenty-First Century, Dorothy E. Roberts Jan 2011

Fatal Invention: How Science, Politics, And Big Business Re-Create Race In The Twenty-First Century, Dorothy E. Roberts

Faculty Scholarship at Penn Law

Fatal Invention documents the emergence of a new biopolitics in the United States that relies on re-inventing race in biological terms using cutting-edge genomic science and biotechnologies. Some scientists are defining race as a biological category written in our genes, while the biotechnology and pharmaceutical industries convert the new racial science into race-based products, such as race-specific medicines, ancestry tests, and DNA forensics, that incorporate false assumptions of racial difference at the genetic level. The genetic understanding of race calls for technological responses to racial disparities while masking the continuing impact of racism in a supposedly post-racial society. Instead, I ...


Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin Jan 2009

Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin

Faculty Scholarship at Penn Law

There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates ...


Strong Claims And Weak Evidence: Reassessing The Predictive Validity Of The Iat, Hart Blanton, James Jaccard, Jonathan Klick, Barbara Mellers, Gregory Mitchell, Philip Tetlock Jan 2009

Strong Claims And Weak Evidence: Reassessing The Predictive Validity Of The Iat, Hart Blanton, James Jaccard, Jonathan Klick, Barbara Mellers, Gregory Mitchell, Philip Tetlock

Faculty Scholarship at Penn Law

The authors reanalyzed data from 2 influential studies — A. R. McConnell and J. M. Leibold (2001) and J. C. Ziegert and P. J. Hanges (2005) — that explore links between implicit bias and discriminatory behavior and that have been invoked to support strong claims about the predictive validity of the Implicit Association Test. In both of these studies, the inclusion of race Implicit Association Test scores in regression models reduced prediction errors by only tiny amounts, and Implicit Association Test scores did not permit prediction of individual-level behaviors. Furthermore, the results were not robust when the impact of rater reliability, statistical ...


The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri Jan 2006

The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri

Faculty Scholarship at Penn Law

This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools ...


“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin Jul 2003

“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin

Faculty Scholarship at Penn Law

“’Black People’s Money’: The Impact of Law, Economics, and Culture in the Context of Race on Damage Recoveries” is one of a series of articles by the author dealing with black economic marginalization; prior work considered such topics as shopping and selling as forms of deviance, street vending, restraints on leisure, and the importance of informality in loan transactions. This article deals with the linkage between the social significance of black people’s money and its material value. It analyzes the construction of “black money,” its association with cash, and the taboos and cultural practices that assure that black ...


Immigration Restrictions As Employment Discrimination, Howard F. Chang Jan 2003

Immigration Restrictions As Employment Discrimination, Howard F. Chang

Faculty Scholarship at Penn Law

In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests ...


The Immigration Paradox: Poverty, Distributive Justice, And Liberal Egalitarianism, Howard F. Chang Jan 2003

The Immigration Paradox: Poverty, Distributive Justice, And Liberal Egalitarianism, Howard F. Chang

Faculty Scholarship at Penn Law

The immigration of unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal egalitarian ideals. These ideals would treat these resident workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of all incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of unskilled ...


The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett Jan 2003

The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett

Faculty Scholarship at Penn Law

No abstract provided.


Social Science And Segregation Before Brown, Herbert J. Hovenkamp Jan 1985

Social Science And Segregation Before Brown, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The courts must bear a heavy share of the burden of American racism. An outpouring of historical scholarship on racism and the American law reveals the outrageous and humiliating extent to which American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions. The law is not autonomous, however, particularly in areas of explicit public policy making. Lawyers did not invent racism. Rather they created racist institutions because society was racist and racism was implicit in its values. The trend in scholarship on the legal history of American racism, however, has been to place most of the blame for ...


The Court Acknowledges The Illegitimate: Levy V. Louisiana And Glona V. American Guarantee & Liability Insurance Co., John C. Gray Jr., David Rudovsky Jan 1969

The Court Acknowledges The Illegitimate: Levy V. Louisiana And Glona V. American Guarantee & Liability Insurance Co., John C. Gray Jr., David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.