Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Civil Rights and Discrimination (84)
- Constitutional Law (66)
- Fourteenth Amendment (48)
- Supreme Court of the United States (28)
- Law and Society (23)
-
- Criminal Law (18)
- Education Law (16)
- Law and Gender (16)
- Legal History (14)
- Social and Behavioral Sciences (14)
- Courts (11)
- Jurisprudence (10)
- Legislation (10)
- Sociology (10)
- Law Enforcement and Corrections (9)
- Criminal Procedure (7)
- Race and Ethnicity (7)
- State and Local Government Law (7)
- Arts and Humanities (6)
- Law and Politics (6)
- Public Law and Legal Theory (6)
- First Amendment (5)
- Fourth Amendment (5)
- Indigenous, Indian, and Aboriginal Law (5)
- Inequality and Stratification (5)
- Public Affairs, Public Policy and Public Administration (5)
- Civil Procedure (4)
- Legal Studies (4)
- Institution
-
- University of Michigan Law School (37)
- University of Colorado Law School (11)
- Boston University School of Law (9)
- University of Pittsburgh School of Law (7)
- Northwestern Pritzker School of Law (6)
-
- Vanderbilt University Law School (5)
- Columbia Law School (4)
- Selected Works (4)
- University of Pennsylvania Carey Law School (4)
- The University of Akron (3)
- Touro University Jacob D. Fuchsberg Law Center (3)
- University of Miami Law School (3)
- Washington and Lee University School of Law (3)
- Maurer School of Law: Indiana University (2)
- University of Arkansas at Little Rock William H. Bowen School of Law (2)
- American University Washington College of Law (1)
- Brooklyn Law School (1)
- Cleveland State University (1)
- Emory University School of Law (1)
- New York Law School (1)
- Pepperdine University (1)
- Roger Williams University (1)
- St. John's University School of Law (1)
- St. Mary's University (1)
- Texas A&M University School of Law (1)
- University of Florida Levin College of Law (1)
- University of Maine School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Montana (1)
- Yeshiva University, Cardozo School of Law (1)
- Publication Year
- Publication
-
- Articles (19)
- Michigan Law Review (18)
- Faculty Scholarship (16)
- Publications (11)
- Michigan Journal of Race and Law (8)
-
- Northwestern University Law Review (6)
- All Faculty Scholarship (4)
- Vanderbilt Law School Faculty Publications (4)
- Akron Law Review (3)
- Scholarly Articles (3)
- Journal of Race, Gender, and Ethnicity (2)
- University of Miami Race & Social Justice Law Review (2)
- American University Journal of Gender, Social Policy & the Law (1)
- Articles & Chapters (1)
- Brooklyn Law Review (1)
- Christiana Ochoa (7/22-10/22 Acting; 11/2022-) (1)
- Erwin Chemerinsky (1)
- Faculty Articles (1)
- Indiana Law Journal (1)
- Khiara M Bridges (1)
- Law Faculty Articles and Essays (1)
- Lawrence Rosenthal (1)
- Maine Law Review (1)
- Michigan Journal of Gender & Law (1)
- Neil L Sobol (1)
- Pepperdine Law Review (1)
- Public Land & Resources Law Review (1)
- Scholarly Works (1)
- School of Law Conferences, Lectures & Events (1)
- St. John's Law Review (1)
- Publication Type
Articles 1 - 30 of 118
Full-Text Articles in Law and Race
Challenging Florida’S Parental Rights In Education Act, Aka The “Don’T Say Gay” Law: Finding Equality Through Equal Protection Doctrine, Nelson Garcia
Challenging Florida’S Parental Rights In Education Act, Aka The “Don’T Say Gay” Law: Finding Equality Through Equal Protection Doctrine, Nelson Garcia
University of Miami Race & Social Justice Law Review
No abstract provided.
On Liberty: From Due Process To Equal Protection—Dobbs’ Impact On The Transgender Community, Emily Kaufman
On Liberty: From Due Process To Equal Protection—Dobbs’ Impact On The Transgender Community, Emily Kaufman
University of Miami Race & Social Justice Law Review
Liberty has been a bedrock principle of American democracy from the time of our nation’s founding and is the norm that charters our nation’s existence. Liberty was the motivation driving the colonists’ rebellion against tyranny in order to establish a nation that would preserve liberty, at all costs. The preamble of the Constitution explicitly classifies every subsequent article’s purpose, to secure the blessings of liberty.
This note will touch on the concepts of personal liberty in the context of abortion in the landmark case Dobbs v. Jackson Women’s Health Org, and the implications of this case on the transgender community. …
Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer
Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer
Christiana Ochoa (7/22-10/22 Acting; 11/2022-)
s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.
The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …
Democratizing Abolition, Brandon Hasbrouck
Democratizing Abolition, Brandon Hasbrouck
Scholarly Articles
When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.
Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …
Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold
Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold
Faculty Scholarship
“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.
Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …
Affirmative Action After Sffa, Jonathan Feingold
Affirmative Action After Sffa, Jonathan Feingold
Faculty Scholarship
In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.
Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen
Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen
American University Journal of Gender, Social Policy & the Law
Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only …
“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham
“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham
Scholarly Works
Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …
The Racist Roots Of The War On Drugs And The Myth Of Equal Protection For People Of Color, André Douglas Pond Cummings, Steven A. Ramirez
The Racist Roots Of The War On Drugs And The Myth Of Equal Protection For People Of Color, André Douglas Pond Cummings, Steven A. Ramirez
University of Arkansas at Little Rock Law Review
By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. …
Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer
Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer
St. John's Law Review
(Excerpt)
In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college …
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Articles & Chapters
This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Scholarly Articles
Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …
The Unconstitutional Police, Brandon Hasbrouck
The Unconstitutional Police, Brandon Hasbrouck
Scholarly Articles
Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …
Lawyers For White People?, Jessie Allen
Lawyers For White People?, Jessie Allen
Articles
This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …
For Cause: Rethinking Racial Exclusion And The American Jury, Thomas Ward Frampton
For Cause: Rethinking Racial Exclusion And The American Jury, Thomas Ward Frampton
Michigan Law Review
Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of …
As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo
As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo
Journal of Race, Gender, and Ethnicity
No abstract provided.
Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza
Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza
Journal of Race, Gender, and Ethnicity
No abstract provided.
Identity: Obstacles And Openings, Osamudia R. James
Identity: Obstacles And Openings, Osamudia R. James
Articles
Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.
Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose
Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose
Faculty Scholarship
Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury …
What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias
Erwin Chemerinsky
This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …
Class-Based Affirmative Action, Or The Lies That We Tell About The Insignificance Of Race, Khiara Bridges
Class-Based Affirmative Action, Or The Lies That We Tell About The Insignificance Of Race, Khiara Bridges
Khiara M Bridges
This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals - and groups - continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it …
Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton
Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton
The Scholar: St. Mary's Law Review on Race and Social Justice
When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.
Part One of this Article chronicles the forces contributing …
Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold
Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold
Faculty Scholarship
In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what …
Equal Protection Design Defects, Jonathan Feingold
Equal Protection Design Defects, Jonathan Feingold
Faculty Scholarship
One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — …
Second Redemption, Third Reconstruction, Richard A. Primus
Second Redemption, Third Reconstruction, Richard A. Primus
Articles
In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …
Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold
Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold
Faculty Scholarship
For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.
In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …
Brackeen V. Zinke, Bradley E. Tinker
Brackeen V. Zinke, Bradley E. Tinker
Public Land & Resources Law Review
In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians’ …
Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol
Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol
Neil L Sobol
Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.
Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …
Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie
Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie
Northwestern University Law Review
No abstract provided.
Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel
Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel
Northwestern University Law Review
In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.
The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that …