Law and Race Commons^™

Embodying The Population: Five Decades Of Immigrant/Integration Policy In Sweden, Leila Brännström

Leila Brännström

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Edmonson V. Leesville Concrete Co.: State Action Or Inaction - Does It Matter?, Chad Murdock

Akron Law Review

This note first reviews the facts of Edmonson. Second, this note examines the history of judicial inquiry into the use of peremptory challenges. Third, this note reviews the application of Batson to civil cases. Finally, this note analyzes the extension of the state action doctrine in Edmonson and discusses an alternative to the Edmonson approach to state action

Holland V. Illinois: Sixth Amendment Fair Cross-Section Requirement Does Not Preclude Racially-Based Peremptory Challenges, Debra L. Dippel

Akron Law Review

This note recaps the Supreme Court's previous decisions regarding defendant's objections to jury composition, including both equal protection and fair cross-section requirement analyses. It also discusses Holland, examines the various opinions in the case, and reviews the arguments for and against abolishing peremptory challenges. Finally, the note proposes a solution for the questions which Holland leaves unanswered.

Civil Rights In The 1990'S: Non-Discrimination Or Quotas?, Donald B. Ayer

Akron Law Review

I would like today to offer some thoughts on the way that we as a country have handled the issue of reverse discrimination as a means of pursuing equal opportunity.

My first observation is that there is an undeniable tension between competing approaches to racial and gender justice that have been advanced and pursued in recent years. I take as my starting point the fundamental principle embodied in the Equal Protection Clause (as well as the Declaration of Independence), that, as the elder Justice Harlan said in dissent in Plessy v. Ferguson,' the Constitution is colorblind, and does not allow …

A Trilogy Of Essays On Scholarship, David Barnhizer

David Barnhizer

At the beginning it is helpful to realize that the five versions of the scholarly ideal produce different forms of intellectual work with distinct goals and motivations. The scholar engaging in such activity can vary dramatically in terms of what the individual is seeking to achieve through his or her research output and actions that might be taken related to the findings reflected in that product. Similarly, there is a diverse set of targets at which the work is directed. These targets include communicating ideas and knowledge to other scholars who are invested in a specific sub-discipline. They also include …

“Something Wicked This Way Comes”: Political Correctness And The Reincarnation Of Chairman Mao, David Barnhizer

David Barnhizer

Mao’s Red Guards and the “Wicked Wisdom” of Lesley Gore There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

All Faculty Scholarship

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—the way …

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Publications

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …