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Articles 1 - 11 of 11
Full-Text Articles in Law and Race
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Articles
In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was …
Mismatch And Science Desistance: Failed Arguments Against Affirmative Action, Richard O. Lempert
Mismatch And Science Desistance: Failed Arguments Against Affirmative Action, Richard O. Lempert
Articles
When I attended Michigan Law School in 1966, as a 2L Harvard transfer, there was only one, or perhaps two, African Americans in a student body of about 1100 students, and if there were any students of Latino heritage their presence went unnoticed. When I began teaching at Michigan in the fall of 1968, the situation had begun to change. There were eight or nine African American students in the first year class, the first cohort to be admitted under a newly approved racially sensitive affirmative action program. Since then, Michigan has graduated more than 1500 minority students, most of …
Justice Kennedy And The Fisher Revisit: Will The Irrelevant Prove Decisive?, Richard O. Lempert
Justice Kennedy And The Fisher Revisit: Will The Irrelevant Prove Decisive?, Richard O. Lempert
Articles
Most Court watchers expect Justice Kennedy to cast the deciding vote when the Supreme Court hands down its decision in this term’s installment of Fisher v. University of Texas at Austin or, as it is colloquially titled, Fisher II. What divides observers is not whose vote will be crucial, but the law that vote will make. At one extreme, Justice Kennedy could vote to uphold the Fifth Circuit’s reaffirmation of its earlier decision. When the case was heard, this would almost certainly have meant affirming the circuit court’s decision by an equally divided Court. (Justice Kagan, an almost certain supporter …
"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World, Mario L. Barnes
"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World, Mario L. Barnes
Articles
No abstract provided.
When The Customer Is King: Employment Discrimination As Customer Service, Lu-In Wang
When The Customer Is King: Employment Discrimination As Customer Service, Lu-In Wang
Articles
Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers.
Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship. The doctrine focuses on the formal lines of …
Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos
Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos
Articles
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being. In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that …
Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr
Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr
Articles
In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …
Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley
Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley
Articles
Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt …
Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.
Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.
Articles
This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.
Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.
Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.
Articles
As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.
This Article argues, however, that the Thirteenth Amendment's prohibition …
Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes
Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes
Articles
No abstract provided.