Law and Race Commons^™

Law School News: Three Rwu Law Graduates Nominated For State Judgeships 12-10-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview, and apply more …

42 U.S.C. § 1981’S Equal Benefit Clause: Debating The Application To Private Actor Discrimination, Lauren Pope

Northwestern Journal of Law & Social Policy

No abstract provided.

Law School News: Rwu Law Student Receives Skadden Fellowship To Pursue Public-Interest Law 11/26/2018, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

Debating Immigration Restriction: The Case For Low And Slow, Amy L. Wax

All Faculty Scholarship

This article critiques our current politics of immigration, which is dominated by moralized and sentimental rhetoric. It argues for a more honest and balanced discussion of the merits of the status quo. A more mature debate would take into account many factors that now receive insufficient attention from politicians, academics, and the mainstream media, including the interests of voters and citizens as well as newcomers, legitimate nationalistic concerns both economic and cultural, the need for unity, stability, and cohesion through assimilation to a common culture, the primacy of American sovereignty through the maintenance of secure borders, and the integrity of …

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 …

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that solitary …

The Accidental Crit Iii: The Unbearable Lightness Of Being ... Pedro?, Pedro A. Malavet

Pedro A. Malavet

Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson

University of Michigan Journal of Law Reform

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v. …

The Search For Protection For Stateless Refugees In The Middle East: Palestinians And Kurds In Lebanon And Jordan, Susan M. Akram

Faculty Scholarship

Most Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in …

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Dickinson Law Review (2017-Present)

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

Principles And Consequences In A Virtue Ethics Analysis Of Affirmative Action, Caleb H A Brown

Montview Journal of Research & Scholarship

In this paper, I evaluate affirmative action from the framework of virtue ethics. In doing so, I consider the principles behind affirmative action as well as its consequences because a perfectly virtuous person will act per just principles but will also be concerned with the consequences of her actions. An attempt to restore justice that utilizes a mechanism known to be ineffective is not truly an attempt to restore justice, and so is not virtuous. Therefore, if affirmative action is principally justified, a complete virtue ethical analysis will still ask, “Do we know if it works?” I conclude that affirmative …

Law School News: Diversity, Front And Center, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All

Marquette Law Review

This Article shines a light on a little noticed phenomenon in American law: the promulgation of ten state statutes and one state regulation, each requiring education about genocide in elementary and/or secondary schools. The mandates, adopted from 1989 through 2018, appear to be only the beginning inasmuch as in 2017 another nineteen states publicly pledged to pass such mandates as well.

The Article describes each of the existing mandates and compares them to each other, including an analysis of the laws’ respective strong and weak points. This exposition, of interest in itself, also sets the stage for proposals to improve …

Defending The Spirit: The Right To Self-Defense Against Psychological Assault, Kindaka J. Sanders

Nevada Law Journal

No abstract provided.

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law September 2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Legal Foundations Of White Supremacy, Erika Wilson

DePaul Journal for Social Justice

No abstract provided.

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq.

St. Mary's Law Journal

Abstract forthcoming

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine …

Vulnerability, Access To Justice, And The Fragmented State, Elizabeth L. Macdowell

Michigan Journal of Race and Law

This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for …

The Case Against Police Militarization, Eliav Lieblich, Adam Shinar

Michigan Journal of Race and Law

We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization.

This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization …

Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks

Michigan Journal of Race and Law

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:

“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act, Allison Krause Elder

Northwestern Journal of Law & Social Policy

In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the …

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …