Law and Race Commons^™

The Colonial Borders Within: Racial Profiling, Language, And Civil Juries, Jasmine Gonzales Rose

Faculty Scholarship

This Article builds on the scholarship of Kevin R. Johnson, whose work has long illuminated how immigration law and constitutional doctrine have enabled the subordination of Latines through racial profiling,2 language discrimination,3 and exclusion from civic institutions, like juries.4 His analyses of juror exclusion and the importance of a diverse judiciary underscore how the composition of civil and criminal factfinders shapes both recognition of harm and the remedies afforded.5 Long before the current period of intensified, abusive immigration enforcement, his scholarship traced the historical roots of these practices, examined their contemporary manifestations, and revealed the ways in which the law …

The River That Powers Us: A Tribute To Dean Emeritus Kevin R. Johnson, His Steadfast Commitment To Diversity And Excellence, And His Legacy Of Impact, Angela Onwuachi-Willig

Faculty Scholarship

This Essay pays tributes to Dean Emeritus Kevin R. Johnson’s extraordinary contributions to the growth and successes of full-time Latinx faculty and other faculty of color within the legal academy. To do so, it utilizes the recent, inaugural study of faculty by the Association of American Law Schools (AALS) to situate the legal academy’s progress with the diversification of its faculty within a longer trajectory and then illustrates how such gains over the past three decades are the product of intentional, sustained intervention rather than organic institutional and societal evolution. The Essay begins by tracing the lineage of this progress …

Antidiscrimination, Not Anti-Dei: The Real Story Of The Supreme Court's Recent Title Vii Precedent, Madeline H. Meth

Faculty Scholarship

For several years, my colleague and I had been litigating employment discrimination cases with facts that shocked our friends and family. For example, we fought Dallas County over a women-work-the-weekend policy that required women detention officers to work weekends while male colleagues took the weekends off. Likewise, we challenged the City of Cleveland when it moved our client, an emergency medical services supervisor, from the day shift to the night shift explicitly because he is Black. Then, in April 2024, in one of our client’s cases, Muldrow v. City of St. Louis, the U.S. Supreme Court unanimously overruled the …

Organizing For Abolition In Ice Custody, Sarah R. Sherman-Stokes

Faculty Scholarship

The final Immigration and Customs Enforcement (“ICE”) detainees were released from the Irwin County Detention Center in early September 2021.² A court did not order the end of ICE detention at Irwin. A social movement, led by people detained at Irwin, had a pronounced impact on the epistemological landscape and changed both normative principles and public opinion.³ Those detained at Irwin organized and acted to create new understanding of law and protect their rights in ways that courts and legislatures could not. This Essay tells the story of that demosprudential project; a dialectic between legal elites and people …

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

On The Meaning Of Discrimination: Anti-Racism Versus Color-Blind Policy, Keith N. Hylton

Faculty Scholarship

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is …

Book Review: Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, …

Human Rights Risks In Clean Energy Supply Chains: Racial Capitalism, Critical Minerals, And Corporate Responsibility, Erika George

Faculty Scholarship

This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court …

How Not To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

A growing set of jurisdictions has embraced “consultative algorithmic governance,” the idea that community members, particularly racially and otherwise politically marginalized ones, should be involved in the processes by which state institutions procure, construct, implement, and oversee artificially intelligent algorithms employed in public sector decision-making. Consultative processes range from public hearings that provide communities with an opportunity to comment about anticipated algorithmic use to community advisory boards that help public officials evaluate the impact of current or future algorithmic use.

This Article argues that consultative algorithmic governance is critically flawed and then builds upon this critique to point toward a …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose

Faculty Scholarship

This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …

Unifying Concepts: Critical Race Theory, Academic Freedom Of Speech, And Democracy, Jasmine Gonzales Rose

BU Law Presentations

Poster for Jasmine Gonzales Rose's 2023 University lecture.

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Faculty Scholarship

McCleskey v. Kemp¹ operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.² By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.³ But what if McCleskey had been decided differently? Given that Washington v. Davis⁴ held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”⁵ could McCleskey have articulated an approach to equal protection doctrine …

Foreword: Finding Balance In The Fight Against Gun Violence, Michael Ulrich

Faculty Scholarship

The United States is distinct among high-income countries for its problem with gun violence, with Americans 25 times more likely to be killed by gun homicide than people in other high-income countries.¹ Suicides make up a majority of annual gun deaths — though that gap is closing as homicides are on the rise — and the U.S. accounts for 35% of global firearm suicides despite making up only 4% of the world’s population.² More concerning, gun deaths are only getting worse. In 2021, firearm fatalities approached 50,000, the highest we have seen in at least 40 years.^{3 …}

Pov: Yes, Filling Out The Race Box On Forms Is Tiresome, But Here’S Why It Matters, Jasmine Gonzales Rose, Neda Khoshkhoo

Shorter Faculty Works

Filling out your race and ethnicity on a form may feel tiresome, and even uncomfortable. You have been checking these boxes for years, as has everyone else, and the questions may seem irrelevant.

“What does race have to do with my doctor’s appointment?” you might ask. Or a form may be inaccurate: “I’m Middle Eastern, why don’t I get a box to check?” Perhaps it feels intrusive: “How is this information going to be used?” And you may wonder, “Why are we always talking about race?”

The truth is, we need to keep talking about race. Even more than we …

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.
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/="/">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 …

Surrey's Silence: Subpart F And The Swiss Subsidiary Tax That Never Was, Steven Dean

Faculty Scholarship

Was Stanley Surrey racist? Was he a coward for not speaking as plainly about the Swiss tax haven problem in public as the Surrey Papers reveal his team did in private? In the broad sweep of history Surrey’s silence may have mattered a great deal or it may have mattered very little. The quiet aspect of the Liberia problem that it highlights undoubtedly does. Exploiting the public’s misunderstanding of the term tax haven as Surrey quickly learned to do has become second nature to scholars and policymakers alike. No less powerful than the loud aspect of the Liberia problem, the …

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.

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

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 …

Pov: As A Nation, Where Are We Now On Gun Policy?, Michael Ulrich

Faculty Scholarship

Last month, the federal government passed the first gun safety legislation in decades, the Bipartisan Safer Communities Act, while at the same time, the Supreme Court declared a constitutional right to carry guns in public. It is important then to assess where this country finds itself with regard to gun policy after these two seemingly contrasting and momentous events.

The Crt Of Black Lives Matter, Angela Onwuachi-Willig

Faculty Scholarship

Critical Race Theory ("CR T"), or at least its principles, stands at the core of most prominent social movements of today-from the resurgence of the #MeToo Movement, which was founded by a Black woman, Tarana Burke, to the Black Lives Matter Movement, which was founded by three Black women: Opal Tometi, Alicia Garza, and Patrisse Cullors. In fact, Critical Race Theorists have long defined CRT itself as a movement, one that has not only provided theoretical interventions regarding the relationship between race, racism, power, and the law, but that has also encouraged and, in fact, inspired and guided social movements. …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …