Open Access. Powered by Scholars. Published by Universities.®

Law and Race Commons™

Open Access. Powered by Scholars. Published by Universities.®

Brooklyn Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 75

Full-Text Articles in Law and Race

Corporate Employment And The First Amendment Shield Against Anti-Dei Legislation, W. Mary Blee May 2026

Corporate Employment And The First Amendment Shield Against Anti-Dei Legislation, W. Mary Blee

Brooklyn Journal of Corporate, Financial & Commercial Law

No one would have thought that a Supreme Court ruling striking down affirmative action in higher education would affect private employment. However, the ruling in Students for Fair Admissions v. Harvard did exactly that. Corporate employers’ efforts to foster diversity, equity, and inclusion (DEI) were immediately pushed to the forefront of the political battlefield. In the eyes of Republican lawmakers and politicians, DEI efforts were akin to affirmative action, and therefore unconstitutional in the wake of Harvard. Their solution to this problem involved passing anti-DEI legislation and policies which restricted or eliminated employer’s DEI efforts under the guise of upholding …

Go to article

Combating The Colorblind Courtroom: Using Race-Switching To Make Racial Bias Salient, Cynthia Lee Mar 2026

Combating The Colorblind Courtroom: Using Race-Switching To Make Racial Bias Salient, Cynthia Lee

Brooklyn Law Review

In criminal courtrooms across the country, well-meaning judges insist on running colorblind courtrooms — courtrooms in which the attorneys are not allowed to call attention to race. Many judges, including many US Supreme Court justices, believe it is best to ignore racial difference, and that noticing race will encourage racial discrimination. The problem is that colorblind courtrooms are likely to exacerbate, not ameliorate, implicit racial bias. Decades of social science research have demonstrated that making race salient helps decision makers treat similarly situated individuals of different races the same and that not calling attention to race results in decisionmakers treating …

Go to article

A Middle-Class New Deal: A Call To Action, Angela K. Littwin Dec 2025

A Middle-Class New Deal: A Call To Action, Angela K. Littwin

Brooklyn Journal of Corporate, Financial & Commercial Law

The books featured in the Debt in the Real World Symposium paint compelling portraits of American financial insecurity and distress. The fact that half of U.S. households cannot make ends meet is a devastating development, but it also presents an opportunity for making change because economic insecurity is now an “us” problem rather than a “them” problem. The next step is to organize, and as part of that process, to develop a vision of an economy that works for everyone. The title of one featured book, Michele Dickerson’s forthcoming The Middle Class New Deal, is a strong starting point because …

Go to article

Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb Dec 2025

Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb

Brooklyn Journal of Corporate, Financial & Commercial Law

Debt’s Grip follows a long line of literature that looks to combat legal and cultural myths about consumer debt and consumer bankruptcy with quantitative and qualitative analysis on these topics. Who files for bankruptcy and why? Fighting longstanding myths is tough work, but Pamela Foohey, Robert M. Lawless and Deborah Thorne have marshalled a strong set of tools, and strong intellectual allies, to support this epic battle.

Go to article

How And Why To Be A Strategic Debtor, Chrystin Ondersma Dec 2025

How And Why To Be A Strategic Debtor, Chrystin Ondersma

Brooklyn Journal of Corporate, Financial & Commercial Law

Shame and fear prevent many Americans who need debt relief from seeking it. Americans who struggle with debt should reject fear and shame and should instead feel empowered and entitled to seek relief in bankruptcy. Almost every American will need to take on debt at some point. We’re expected to use credit to acquire educations, homes, cars, and appliances—even medical care. Americans do not incur debt strategically, but rather as a matter of survival. In Dignity Not Debt, I argued that human dignity, not profits, should guide policymakers, and that our collective goal should be to end both survival debt …

Go to article

Disability Restriction In U.S. Immigration Policy: From 1882 To The “Final Rule”, Jess Whatcott Dr. Dec 2025

Disability Restriction In U.S. Immigration Policy: From 1882 To The “Final Rule”, Jess Whatcott Dr.

Journal of Law and Policy

Disability justice in the United States and globally demands the dismantling of exclusionary immigration policies. This article surveys the development of disability restrictions in U.S. immigration policy and draws on historical scholarship to describe the specific impact of these policies on racialized groups in the U.S. Since 1882, federal immigration policies have excluded people from entering the U.S. legally based on perceived bodily difference, impairment, pathology, mental defect, or proneness to contagious disease. This continued into the twenty-first century through restrictions on people with HIV/AIDS and against people with a “likelihood of becoming a public charge,” reinforced by the Trump …

Go to article

Shaping A More Equitable Election System: A Canadian Approach To Solving The Voting Rights Crisis In America, Michelle Gutowski May 2025

Shaping A More Equitable Election System: A Canadian Approach To Solving The Voting Rights Crisis In America, Michelle Gutowski

Journal of Law and Policy

In 1965, the Voting Rights Act was passed, ushering in a new era of voting freedom. The Act brought an end to many of the overtly discriminatory practices that had persisted for nearly two centuries. Over time, however, states began to introduce more subtle and complex voting regulations that gradually undermined the gains achieved through the civil rights movement. In 2021, the Supreme Court dismantled an essential safeguard for voters, significantly weakening the protections the Act once guaranteed. This erosion of protections is largely attributable to a single doctrinal standard within the Act, known as the totality of the circumstances …

Go to article

Fetch The Bolt Cutters: Reflections On Racial Capitalism And The Nafta/Usmca, J. Benton Heath May 2024

Fetch The Bolt Cutters: Reflections On Racial Capitalism And The Nafta/Usmca, J. Benton Heath

Brooklyn Journal of International Law

Using the pecan orchards of West Texas as a starting point, this Article offers a reflection on the utility of racial capitalism as an organizing frame for understanding international trade and trade agreements. The Article is also a tribute to other scholars in this field, whose work long precedes and informs my own. It is an expanded version of a presentation given for an symposium at Brooklyn Law School in October 2023 on Promises and Challenges for the Future of North American Trade, and it is written for readers who may be unfamiliar with this body of work.

Go to article

The Mismeasure Of Puerto Rico: Xenophobia And The Moral Bankruptcy Of U.S. Colonialism, Ernesto Sagás, Ediberto Román May 2024

The Mismeasure Of Puerto Rico: Xenophobia And The Moral Bankruptcy Of U.S. Colonialism, Ernesto Sagás, Ediberto Román

Journal of Law and Policy

This Article examines the racialization of Puerto Ricans within the legal context of the colonial relationship between the United States and its largest colony. The first section examines the first half century of U.S. rule (1898-1952) and how colonial administrators typically used arrogance and paternalism, the self-proclaimed white superiority of the ruling class, and the presumed inferiority of the subjects and their incapability to become full members of the United States, to justify colonial rule. The second section describes the establishment of the Commonwealth of Puerto Rico in 1952, a legal fiction designed to instill in Puerto Ricans and the …

Go to article

The Use Of Procedural Rules To Silence Minority Party Dissent In The Tennessee State Legislature And Its Racially Discriminatory Roots, Rosie Fatt May 2024

The Use Of Procedural Rules To Silence Minority Party Dissent In The Tennessee State Legislature And Its Racially Discriminatory Roots, Rosie Fatt

Journal of Law and Policy

The expulsion of two young Black legislators, Justin Jones and Justin J. Pearson, from the Tennessee General Assembly in April 2023 was not an aberration. This Note argues that the expulsions follow a historical pattern of systematic marginalization of Black representative power in the South. This Note connects the history of minority exclusion in state legislatures, beginning with Black legislators barred from taking their elected seats in the Georgia House, through to the present day. Specifically, it focuses on the use of procedural rules, particularly expulsions, as tools to limit the speech and representative power of Black legislators. It discusses …

Go to article

Addressing The Root Cause Of Covid-19 Hate Crimes Against The Aapi Community: Shifting From Reactive Policies To Preventative Solutions, Alexa A. Panganiban May 2024

Addressing The Root Cause Of Covid-19 Hate Crimes Against The Aapi Community: Shifting From Reactive Policies To Preventative Solutions, Alexa A. Panganiban

Journal of Law and Policy

While the COVID-19 Pandemic affected health, social interaction, and politics on a global scale, Asian Americans in the United States faced the added hardship of racism and xenophobia. Unfortunately, anti-Asian sentiment in the U.S. is not unprecedented and has historical roots dating back to at least the nineteenth century. However, with right-wing leaders using condescending labels like “Chinese virus” and “Kung Flu” to describe the deadly infection, Asian hate has escalated to astronomical levels. Within one year of the onset of the Pandemic, more than 9,000 reports of Asian hate were filed, and this exponential surge led to the adoption …

Go to article

The Right To Preschool: Once A Wartime Necessity, Now A Fundamental Step Towards Educational Equity, Alex Raskin May 2024

The Right To Preschool: Once A Wartime Necessity, Now A Fundamental Step Towards Educational Equity, Alex Raskin

Journal of Law and Policy

The most vital time for cognitive development is the first five years of a child’s life, impacting everything from language skills to social and emotional abilities. This makes access to high-quality universal preschool a necessity, as increasingly more families are without stable childcare in America. Preschool tuition now averages $10,000 annually and without paid parental leave, millions of children are left without formal learning or adequate supervision before kindergarten. This disproportionately impacts Black and brown students and students with disabilities, while continuing cycles of poverty and the gender wage gap. The only time the U.S. government provided high-quality universal preschool …

Go to article

A New Private Law Of Policing, Cristina Carmody Tilley Mar 2024

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 …

Go to article

Background Noise: Lessons About Media Influence, Mitigation Measures, And Mens Rea From Argentine And Us Criminal Cases, Agustina Mitre, Matthew P. Cavedon Dec 2023

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 …

Go to article

Gang Accusations: The Beast That Burdens Noncitizens, Mary Holper Dec 2023

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 …

Go to article

Good Intentions With Bad Consequences: Post-Bruen Gun Legislation In New York, Michal E. Folczyk Dec 2023

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 …

Go to article

Toward “The Most Freedom”: Decriminalizing Sex Work Alleviates Housing Discrimination And Housing Instability Faced By Sex Workers In New York City, Bianca B. Li Dec 2023

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 …

Go to article

The White Supremacist Structure Ofamerican Zoning Law, Sarah J. Adams-Schoen May 2023

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 …

Go to article

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 May 2023

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 …

Go to article

When Permanency Is Permanent Separation: In The Family Regulation System, A Temporary Removal Fast Tracks Terminating Parents' Rights, Alison Peebles May 2023

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 …

Go to article

Racial Equality Compromises, Yuvraj Joshi Apr 2023

Racial Equality Compromises, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Go to article

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan Feb 2023

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 …

Go to article

We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson Feb 2023

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 …

Go to article

Inherently Unequal: The Effect Of Structural Racism And Bias On K-12 School Discipline, Alicia R. Jackson Feb 2023

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 …

Go to article

Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa Dec 2022

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. …

Go to article

What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das Dec 2022

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 …

Go to article

Racial Justice And Peace, Yuvraj Joshi Jun 2022

Racial Justice And Peace, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Go to article

Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams Jun 2022

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 …

Go to article

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta Jun 2022

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 …

Go to article

Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben May 2022

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 …

Go to article

Next Last