Law and Race Commons^™

Looted Cultural Objects, Elena Baylis

Articles

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …

An Imperial History Of Race-Religion In International Law, Rabiat Akande

Articles & Book Chapters

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

The Aftermath Of Dobbs: How The Criminalization Of Abortion Has Obstructed The Exercise Of Bodily Autonomy, Sonia Bakshi

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

This Blog addresses the topic of bodily autonomy in relation to the criminalization of abortion because everyone should be entitled to the right to make their own choices, especially when it comes to their bodies, and even greater, their selves as a whole. With the recent overturning of Roe v. Wade, the ability to exercise bodily autonomy has never been more obstructed. The Supreme Court has left the nation with the impression that they do not believe women are capable of making decisions about their own bodies or their own futures. Now, it’s important to look into what the ripple …

Centring The Black Muslimah: Interrogating Gendered, Anti-Black Islamophobia, Rabiat Akande

Articles & Book Chapters

No abstract provided.

Law School News: Should Prison Be Abolished? 10-6-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Colorblind Capture, Jonathan Feingold

Faculty Scholarship

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or …

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Faculty Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

Doing Better For Indigenous Children And Families: Jordan’S Principle Accountability Mechanisms Report, Naiomi Metallic, Hadley Friedland, Shelby Thomas

Reports & Public Policy Documents

In Part 1 of this report, we attempt to summarize the long history that forms the context of the need for independent accountability measures to meaningfully address the discrimination identified by the CHRT in Caring Society and prevent similar practices in the future. Drawing from this context, in Part 2, we set out what we identify as 10 key accountability needs of Indigenous children and families that must be addressed in order to provide effective accountability. Finally, in Part 3, we discuss features of effective accountability mechanisms and propose three interconnected mechanisms that we believe address the accountability …

Human Rights At The Ocean-Climate Nexus: Opening Doors For The Participation Of Indigenous Peoples, Children And Youth, And Gender Diversity, Unwana Udo, Tahnee Prior, Sara L. Seck

Articles, Book Chapters, & Popular Press

No abstract provided.

Gender And Intersectionality In Business And Human Rights Scholarship, Melisa N. Handl, Sara L. Seck, Penelope Simons

Articles, Book Chapters, & Popular Press

In this article, we explore what intersectionality, as an analytic tool, can contribute to business and human rights (BHR) scholarship. To date, few BHR scholars have explicitly engaged in intersectional analysis. While gender analysis of BHR issues remains crucial to expose inequality in business activity, we argue that engagement with intersectionality can enrich and support this and other BHR scholarship. Intersectional approaches allow us to move beyond single-axis analysis, contest simplistic representations about gender issues and expose the complexity of human relations. It draws our attention to structures that sustain disadvantage such as racism, colonialism, social and economic marginalization and …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

The Racial Politics Of Fair Use Fetishism, Anjali Vats

Articles

This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.

These Brutal Indignities: The Case For Crimes Against Humanity In Black America, Tiffany D. Atkins

Law Faculty Scholarly Articles

There is nothing we can do. Not guilty. No indictment. There is nothing we can do. As cases of violence and police killings of Black Americans continue to rise, "there's nothing we can do" seems like the default response from the American justice system. Despite the evidence, police officers enjoy the protection of qualified immunity to insulate them from the consequences of their deadly actions. Prosecutors, who often work closely with police, decline to press criminal charges, or if charges are raised, they rarely lead to convictions. Instead of protecting its citizens from violence and loss of life, the American …

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Faculty Scholarship

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I explore patterns of racial and ethnic segregation in America’s schools and evaluate how those patterns relate to additional challenges based on socioeconomic isolation. In addition, I consider the role of language and immigration status in shaping …

Can “Asians” Truly Be Americans?, Vinay Harpalani

Faculty Scholarship

Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with the challenges posed by that diversity. Some have basic knowledge of the immigration and exclusion of Asian Americans, the internment of Japanese Americans which was upheld in Korematsu v. United States, and the “model minority stereotype”, but these are Asian Americans 101. This …

Environmental Law As Segregation, Nadia B. Ahmad, Melissa Bryan

Faculty Scholarship

No abstract provided.

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Is It Actually Violence? Framing Technology-Facilitated Abuse As Violence, Suzie Dunn

Articles, Book Chapters, & Popular Press

When discussing the term “Technology-Facilitated violence” (TFV) it is often asked: “Is it actually violence?” While international human rights standards, such as the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women, have long recognized emotional and psychological abuse as forms of violence, including many forms of technology-facilitated abuse, law makers and the general public continue to grapple with the question of whether certain harmful technology-facilitated behaviors are actually forms of violence. This chapter explores this question in two parts. First, it reviews three theoretical concepts of violence and examines how these concepts apply to technology-facilitated …

Am I Angry? You Bet I Am! Watching The George Floyd Murder Trial, Cheryl Page

Journal Publications

We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek …

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

Publications

No abstract provided.

A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Desautels-Stein

Publications

There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale— and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily …

Injustice Is An Underlying Condition, Yael Cannon

Georgetown Law Faculty Publications and Other Works

Race, poverty, and zip code serve as critical determinants of a person's health. Research showed the links between these factors and poor health and mortality before COVID-19, and they have only been amplified during this pandemic.

People of color experience higher rates of asthma, heart disease, diabetes, and other chronic conditions. People of color who live in poverty are even more likely to suffer from poor health; they face a “double burden” of health disparities associated with both racial and socioeconomic marginalization. Neighborhoods with concentrated poverty and with residents who are primarily people of color have even faced a life …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Climate Cages: Connecting Migration, The Carceral State, Extinction Rebellion, And The Coronavirus Through Cicero And 21 Savage, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Limits Of Medical X-Pertise: Gender Markers In A Pandemic, Heron Greenesmith, Andy Izenson

Faculty Scholarship

The world changed drastically in 2020. The pandemic has far reaching consequences, and so too do the current civil rights movements and the struggle for gender justice and liberation. This Article seeks to describe a moment in time, a moment of doubt of how one 's gender and race will predict one 's ability to survive the pandemic-not simply COVID-19, but the pandemic writ-large and all the wrenches it has thrown into the health-care machine. How do those of us standing at the edge of a gender revolution navigate these waters? Will our health be the price we pay for …