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Articles 1 - 30 of 63
Full-Text Articles in Law and Race
A New Private Law Of Policing, Cristina Carmody Tilley
A New Private Law Of Policing, Cristina Carmody Tilley
Brooklyn Law Review
American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …
Background Noise: Lessons About Media Influence, Mitigation Measures, And Mens Rea From Argentine And Us Criminal Cases, Agustina Mitre, Matthew P. Cavedon
Background Noise: Lessons About Media Influence, Mitigation Measures, And Mens Rea From Argentine And Us Criminal Cases, Agustina Mitre, Matthew P. Cavedon
Brooklyn Journal of International Law
This Article reflects on the influence that intense media coverage can have on high-profile criminal cases and considers ways to reconcile defendants’ right to a fair trial with press freedom, comparing approaches and cases from Argentina and the US. The Article begins by discussing the tension between journalists’ and defendants’ rights (Part I). It then surveys how the US seeks to mitigate media influence (Part II). After this, it notes two recent Argentine mitigation measures (Part III). Next, it conducts a legal analysis of the Fernando Báez Sosa case, blaming media pressure for errors in the judgment and then proposing …
Gang Accusations: The Beast That Burdens Noncitizens, Mary Holper
Gang Accusations: The Beast That Burdens Noncitizens, Mary Holper
Brooklyn Law Review
This article examines evidence that the government presents in deportation proceedings against young men of color to prove that they are gang members. The gang evidence results in detention, deportation, adverse credibility decisions, and denial of discretionary relief. This article examines the gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. The immigration burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence—that urban youth of color are criminals and likely to engage in violent crime associated with gangs. The article seeks …
Good Intentions With Bad Consequences: Post-Bruen Gun Legislation In New York, Michal E. Folczyk
Good Intentions With Bad Consequences: Post-Bruen Gun Legislation In New York, Michal E. Folczyk
Journal of Law and Policy
In response to a changing landscape for firearm licensing, New York State adopted training requirements for handgun ownership and sensitive place laws. Prior to obtaining a handgun license, training requirements ensure that applicants will be able to safely use a firearm. Upon obtaining a firearm license, sensitive place laws limit where a licensed individual may or may not bring their firearm, as a preventative measure. A violation of a sensitive place law could not only bring revocation of one’s license to carry a firearm, but also felony charges. Although well-intentioned by New York State, unintended consequences attach. This Note explores …
Toward “The Most Freedom”: Decriminalizing Sex Work Alleviates Housing Discrimination And Housing Instability Faced By Sex Workers In New York City, Bianca B. Li
Journal of Law and Policy
While sex work has been incrementally decriminalized in New York City, statutes that criminalize some forms of sex work remain good law in New York City and generate potentially life-altering penalties for sex workers who are arrested or convicted under these laws. This leads to complications for sex workers who seek to rent apartments. The New York City Human Rights Law, the City’s anti-discrimination statute, does not offer explicit protection to sex workers against housing discrimination, and two criminal laws penalize property owners for allowing sex work to occur on or near their premises. This Note explores the shortcomings of …
The White Supremacist Structure Ofamerican Zoning Law, Sarah J. Adams-Schoen
The White Supremacist Structure Ofamerican Zoning Law, Sarah J. Adams-Schoen
Brooklyn Law Review
This article disrupts the false narrative of white supremacism that has, for more than a century, cast American land use law as race neutral. In doing so, this article builds on an important but underdeveloped body of legal scholarship elucidating zoning law’s role in creating and perpetuating a separate and unequal dual housing system. It provides primary historical evidence and a clear narrative demonstrating that the defining feature of American zoning law—a strict residential use taxonomy that privileges neighborhoods of restrictively regulated single-family homes and burdens less restrictively regulated residential areas—emerged directly from the facially race-based and facially neutral, but …
A Call To Action For Parents' Lawyers In The Family Regulation System: Bearing Witness As Praxis And Practice In The Face Of Structural Injustice, Joshua Michtom
Journal of Law and Policy
In this Essay, a public defender specializing in parent defense argues that the family regulation system is fundamentally unfair to parents, and that this unfairness is perpetuated by closed courtrooms and a lack of public understanding. He calls on lawyers who represent parents in these proceedings to make the practice of public storytelling integral to their work, by reporting the injustices that happen in family regulation courts to a broader audience, and helping clients tell their own stories publicly when they want to. He argues that only when the workings of this system are broadly exposed can policy change and …
When Permanency Is Permanent Separation: In The Family Regulation System, A Temporary Removal Fast Tracks Terminating Parents' Rights, Alison Peebles
When Permanency Is Permanent Separation: In The Family Regulation System, A Temporary Removal Fast Tracks Terminating Parents' Rights, Alison Peebles
Journal of Law and Policy
The Adoption and Safe Families Act (“ASFA”) is a federal law that creates a mandate for states to move to terminate parents’ rights if a child has been in foster care for fifteen out of the twenty-two most recent months. The federal government then pays states for each adoption over a set threshold amount, which has resulted in terminating over two million children’s parents’ rights and disbursing over four hundred million dollars to states. Black families, Indigenous families, and families of color as well as low-income families disproportionately experience the trauma and harm of permanent family separation. This Note argues …
Racial Equality Compromises, Yuvraj Joshi
We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson
We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson
Brooklyn Law Review
This article takes you on a journey through concept to practice where minoritized populations are often judged less than—less competent, less intelligent—and pushed to society’s margins because they do not speak or write “the Queen’s English.” This practice is particularly pervasive and handicapping to diversity efforts in the legal profession, beginning in law school classrooms. To make any headway into the legal profession’s lack of diversity, a better understanding is required of the undeniable connectedness of how our biases show up in our informal and formal assessment of the speech and writing of those whom we encounter. While it is …
Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan
Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan
Brooklyn Law Review
The racial pay gap in the US is staggering. Wealth disparities between Black, Latinx, and white households reflect the compound negative effects of discrimination, inequality, and lack of opportunities experienced by communities of color. One understudied way to address racial pay equity and the wealth gap is to examine how to widen career paths of high-paying, stable careers for people of color. Career paths are not equal. Some jobs are dead-end, minimum wage-paying, with little to no hope of promotion into a salary that catapults an earner into the next socioeconomic class. Others have growth potential, comfortable wages, and important …
Inherently Unequal: The Effect Of Structural Racism And Bias On K-12 School Discipline, Alicia R. Jackson
Inherently Unequal: The Effect Of Structural Racism And Bias On K-12 School Discipline, Alicia R. Jackson
Brooklyn Law Review
Structural racism is deeply rooted in our nation's history and often manifests as discrimination and inequality in critical facets of life in the United States, including education. This Article explores the impact of structural racism and bias on discipline in the K-12 public school setting. Discriminatory bias-based decision-making and school discipline policies have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. US Department of Education data shows that Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as …
Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa
Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa
Brooklyn Journal of International Law
There is a current movement by indigenous weavers in Guatemala to protect their textile designs due to the harm caused by the absence of the weavers’ intellectual property ownership over the designs and patterns. The exploitation and appropriation of their designs by domestic and international companies has hurt weavers’ livelihoods and has led to culturally inappropriate and insensitive uses of religious and traditional patterns. Conventional intellectual property law (copyright, trademark, and patent law) fails to protect indigenous peoples’ intellectual property rights. A key weakness within conventional intellectual property law is the emphasis and focus on individuality of the creation process. …
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das
Journal of Law and Policy
The no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated …
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams
Journal of Law and Policy
American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta
Journal of Law and Policy
The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …
Racial Justice And Peace, Yuvraj Joshi
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Brooklyn Law Review
This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed …
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Brooklyn Law Review
The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.
Parole, Victim Impact Evidence, And Race, Alexis Karteron
Parole, Victim Impact Evidence, And Race, Alexis Karteron
Brooklyn Law Review
Parole offers the possibility of release for a substantial number of incarcerated people in the United States, the world’s largest jailer, but is seriously understudied. In particular, the role of victims and race in the parole decision-making process deserves attention. Decades of research has shown that the “race-of-victim effect” leads to more punitive sentences when white victimhood is at issue. In the parole context, the ubiquity of victim impact statements and the emotional responses they trigger raise the likelihood that the “race-of-victim effect” plagues parole decision-making as well. This essay calls for greater data collection and scrutiny into the role …
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
Brooklyn Law Review
Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important …
Down And Dirty: Remedies And Reparations For Intersected Environmental And Reproductive Justice, Mickaela J. Fouad
Down And Dirty: Remedies And Reparations For Intersected Environmental And Reproductive Justice, Mickaela J. Fouad
Brooklyn Law Review
Pollution is a rampant issue in the United States, ranging from smog-filled air to infertile soil to contaminated water. Yet despite the pervasive nature of pollution, its harms are not equally distributed amongst society. Black, Indigenous, People of Color (BIPOC) communities disproportionately bear the burden of pollution and consequently suffer more harms because of it. Many of the health consequences from pollution are reproductive in nature: proximity to pollution can compromise fertility, cause difficulty in carrying a pregnancy to term and result in birth defects, disabilities, and reproductive cancers. This note focuses on the reproductive consequences of pollution and relies …
Sy-Stem-Ic Bias: An Exploration Of Gender And Race Representation On University Patents, Jordana R. Goodman
Sy-Stem-Ic Bias: An Exploration Of Gender And Race Representation On University Patents, Jordana R. Goodman
Brooklyn Law Review
People of color and women are underrepresented in science, technology, engineering and math (STEM) fields in the United States. Through both intentional and unintentional structural barriers, universities continue to lose valuable intellectual resources by perpetuating a lack of gender, racial, and ethnic diversity as people climb the academic ladder. Identifying racial and gender disparities between university campus populations and their patent representation quantifies the qualitatively observed systemic racism and sexism plaguing STEM. Without data quantifying the underrepresentation of women and people of color, specifically when protecting their intellectual property rights, universities cannot show that their programs designed to close these …
New York’S School Segregation Crisis: Open The Court Doors Now, Gus Ipsen
New York’S School Segregation Crisis: Open The Court Doors Now, Gus Ipsen
Brooklyn Law Review
New York has the most segregated public school system of any state in America. Nearly seven decades removed from the US Supreme Court’s seminal ruling in Brown v. Board of Education, New York has done little beyond clearing Brown’s baseline mandate of not explicitly segregating students on the basis of race. In part, the forces that shape admissions policies—politics, bigotry, and powerful parents, to highlight a few—have been left unchecked because the transcendent power of the state’s courts has been sealed off. In 2003, the New York Court of Appeals in Paynter v. State firmly shut the door on plaintiffs …
The Color Of Justice, Alexis Hoag
White Supremacy’S Police Siege On The United States Capitol, Vida B. Johnson
White Supremacy’S Police Siege On The United States Capitol, Vida B. Johnson
Brooklyn Law Review
On January 6, 2021, law enforcement failed the people and the institutions it was supposed to protect. This article explores how white supremacy and far-right extremism in policing contributed to the insurrection at the Capitol. Police officers enabled the siege of the Capitol, participated in the attack, and failed to take seriously the threat posed by white supremacists and other far-right groups. The debacle is emblematic of the myriad problems in law enforcement that people of color, scholars, and those in the defund and abolitionist movements have been warning about for years. Police complicity in the attack on the Capitol …
Race And Lawyering In The Legal Writing Classroom, Danielle L. Tully
Race And Lawyering In The Legal Writing Classroom, Danielle L. Tully
Faculty Scholarship
No abstract provided.
Divest, Invest, & Mutual Aid, Cynthia Godsoe, Caitlyn Garcia
Divest, Invest, & Mutual Aid, Cynthia Godsoe, Caitlyn Garcia
Faculty Scholarship
No abstract provided.
Filing While Black: The Casual Racism Of The Tax Law, Steven A. Dean
Filing While Black: The Casual Racism Of The Tax Law, Steven A. Dean
Faculty Scholarship
No abstract provided.
Black Deaths Matter: The Race-Of-Victim Effect And Capital Punishment, Daniel S. Medwed
Black Deaths Matter: The Race-Of-Victim Effect And Capital Punishment, Daniel S. Medwed
Brooklyn Law Review
The racial dimensions of the death penalty are well-documented. Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit—against black defendants in particular. Research points to an even more alarming factor. The race of the victim, not the defendant, steers cases in the direction of death. Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks. This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives …