Law and Race Commons^™

The Religion Of Race: The Supreme Court As Priests Of Racial Politics, Audra Savage

Utah Law Review

The tumultuous summer of 2020 opened the eyes of many Americans, leading to a general consensus on one issue—racism still exists. This Article offers a new descriptive account of America’s history that can contextualize the zeitgeist of racial politics. It argues that the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery in the creation of the Constitution. This religion, called the Religion of Race, is built on a belief system where whiteness is sacred and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the …

Immigration And Racial Justice: Enforcing The Borders Of Blackness, Karla Mckanders

Georgia State University Law Review

Black immigrants are invisible at the intersection of their race and immigration status. Until recently, conversations on border security, unlawful immigration, and national security obscured racially motivated laws seeking to halt the blackening and browning of America. This Article engages with the impact of immigration enforcement at the intersection of anti-Black racism and interrogates how foundational immigration laws that exist outside constitutional norms have rendered Black immigrants invisible. At this intersection, Black immigrants experience a double bind where enforcement of immigration laws and the criminal legal system have a disparate impact resulting in disproportionate incarceration and deportation.

First, the Article …

Pandemic Policing, Christian Sundquist

Georgia State University Law Review

No abstract provided.

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Pandemic Emotions: The Good, The Bad, And The Unconscious —Implications For Public Health, Financial Economics, Law, And Leadership, Peter H. Huang

Northwestern Journal of Law & Social Policy

Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and …

White Tape And Indian Wards: Removing The Federal Bureaucracy To Empower Tribal Economies And Self-Government, Adam Crepelle

University of Michigan Journal of Law Reform

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources.

This Article asserts the federal regulatory “white …

“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo

St. Mary's Law Journal

Abstract forthcoming.

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.

Sexual Exploitation Of Black Women From The Years 1619-2020, Dominique R. Wilson

Journal of Race, Gender, and Ethnicity

No abstract provided.

Going Beyond Rule 8.4(G): A Shift To Active And Conscious Efforts To Dismantle Bias, Meredith R. Miller

Journal of Race, Gender, and Ethnicity

No abstract provided.

A Fare Share: A Proposed Solution To Address The Racial Disparity In Access To Public Transportation Funding In America, Michael Swistara

Michigan Journal of Race and Law

Black American households are up to six times less likely to own a car than white families and are four times more likely to rely on public transportation to meet their daily needs. Despite this, communities of color have seen consistent disinvestment in their transit infrastructure. Four hundred years of continued housing segregation combined with post-recession austerity policies and ongoing pro-automobile bias has exacerbated this disparity. This Note proposes a straightforward legislative tool to begin to combat this inequity. The proposed legislation would require that urbanized areas spend their public transit dollars according to the population density of the communities …

Medical Violence, Obstetric Racism, And The Limits Of Informed Consent For Black Women, Colleen Campbell

Michigan Journal of Race and Law

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic …

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Michigan Journal of Race and Law

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of …

Law And Anti-Blackness, Michele Goodwin

Michigan Journal of Race and Law

This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction— literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through …

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …