Law and Race Commons^™

An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan

Faculty Scholarship

Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over …

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court's most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way …

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

Learning From Conflict: Reflections On Teaching About Race And Gender, Susan Sturm, Lani Guinier

Faculty Scholarship

In 1992 had been teaching for four years at the University of Pennsylvania Law School. I taught voting rights and criminal procedure, subjects related to what I had done as a litigator. Preparing for class meant reading many of the same cases I had read preparing for trial. Some were even cases I had tried. Teaching offered me a fresh chance to read those cases with new interest. I could see the subtle linkages between cases that I had not previously noticed. From the distance of the academy, I observed the evolution of the doctrine without feeling overcome by the …

Placing The Adoptive Self, Carol Sanger

Faculty Scholarship

[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of …

The First Decade: Critical Reflections, Or "A Foot In The Closing Door", Kimberlé W. Crenshaw

Faculty Scholarship

In the introduction to Critical Race Theory: The Key Writings That Formed the Movement, Gary Peller, Neil Gotanda, Kendall Thomas, and I framed the development of Critical Race Theory (CRT) as a dialectical engagement with liberal race discourse and with Critical Legal Studies (CLS). We described this engagement as constituting a distinctively progressive intervention within liberal race theory and a race intervention within CLS. As neat as this sounds, it took almost a decade for these interventions to be fleshed out fully. Reflecting on the past ten years of CRT, this Article explores the course of these interventions from the …

Racial Justice: Moral Or Political?, Kendall Thomas

Faculty Scholarship

Nearly one hundred years ago, W.E.B. DuBois predicted that the problem of the 20th century would be the problem of the color line. Were he writing today, DuBois might well conclude that in the U.S., the problem of the coming century will be the problem of the color-bind. Although Americans arguably remain "the most 'race-conscious' people on earth," our national conversation about "race" now stands at an impasse. Our ways of talking, or refusing to talk, about race increasingly speak past the racialized dilemmas of educational equity, affirmative action, poverty, welfare reform, housing, lending, labor and employment discrimination, health …

Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law: Introduction, Suzanne B. Goldberg

Faculty Scholarship

Hello and welcome. We are thrilled to see you all here. I speak on behalf of my co-panelists in thanking Sarah Weddington for laying some of the groundwork on which we are standing and for laying some of the foundation that gives rise to the issues we are going to talk about on this panel.

Racial Profiling Under Attack, Samuel R. Gross, Debra A. Livingston

Faculty Scholarship

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence – a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, …

Taking Care, Katherine M. Franke

Faculty Scholarship

Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public …

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary conceptions of racial …

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking …

Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw

Faculty Scholarship

Good morning colleagues, friends, and special guests of the Symposium. I have the unenviable task of welcoming you to the UCLA School of Law this morning, a task that under current circumstances carries with it for me quite a few mixed emotions.' I have struggled mightily over how I might convey to you that although my heart is heavy this morning, I am very pleased to see each of you. It is rather like opening the door to welcome close friends into your home which is in a state of utter disarray. Things are strewn all about, you look harried …

Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin

Faculty Scholarship

Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch threatens to reverse the tide and make restitution interesting again. The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect differences in national understandings of sharing, property, and even personhood. As …

Becoming A Citizen: Reconstruction Era Regulation Of African American Marriages, Katherine M. Franke

Faculty Scholarship

While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: "[Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their responsibilities to God and their relations to society," observed a Kentucky Congressman in 1860. These sentiments were echoed by abolitionist northern officers not three years later when the institution of marriage was lauded for its civilizing effect …

Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson

Faculty Scholarship

While youth violence has always been a critical part of delinquency, the modern epidemic is marked by high rates of gun violence. Adolescents in cities possess and carry guns on a large scale, guns are often at the scene of youth violence, and guns often are used. Guns play a central role in initiating, sustaining, and elevating the epidemic of youth violence. The demand for guns among youth was fueled by an "ecology of danger," comprising street gangs, expanding drug markets with high intrinsic levels of violence, high rates of adult violence and fatalities, and cultural styles of gun possession …

Playing Race Cards: Constructing A Proactive Defense Of Affirmative Action, Kimberlé W. Crenshaw

Faculty Scholarship

On behalf of the African American Policy Forum ("AAPF"), I am pleased to participate in this symposium as a co-sponsor and contributor. The AAPF, who together with Fairness and Accuracy in Reporting (FAIR) and the Women's Roundtable constitute the Women's Media Initiative, believes that events such as these are critical in efforts to map strategies for intervening in public debates surrounding affirmative action and a host of related issues such as welfare reform, racial profiling, the prison industrial complex, and the concentration of wealth, just to name a few. As one of many organizations that have taken up the defense …

Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm

Faculty Scholarship

This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set …

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

Three Models Of Affirmative Action Beneficiaries, Thomas W. Merrill

Faculty Scholarship

What has caused the affirmative action debate to become so acrimonious? Perhaps some insight may be gained By considering three competing models of affirmative action beneficiaries that underlie this debate: (1) the outsider group model; (2) the interest group model; and (3) what I will call the adversity group model.

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience …

The Role Of Firearms In Violence "Scripts": The Dynamics Of Gun Events Among Adolescent Males, Deanna L. Wilkinson, Jeffrey Fagan

Faculty Scholarship

In recent years, the use and deadly consequences of gun violence among adolescents has reached epidemic proportions. At a time when national homicide rates are declining, the increasing rates of firearm deaths among teenagers is especially alarming. Deaths of adolescents due to firearm injuries are disproportionately concentrated among nonwhites, and especially among African-American teenagers and young adults. Only in times of civil war have there been higher within-group homicide rates in the United States. There appears to be a process of self-annihilation among male African-American teens in inner cities that is unprecedented in American history. Unfortunately, few studies have examined …

Race And Representation After Miller V. Johnson, Richard Briffault

Faculty Scholarship

This Article considers the Supreme Court's two approaches to race and representation: the constrained proportionality of the vote-dilution cases and the strict scrutiny of racially motivated districting. Part I traces the development of these two doctrines, examines their conceptual underpinnings, and considers some of the questions the Court will have to answer as it elaborates its new approach to the use of race in the design of electoral systems.

Part II explores the tension between the Court's two approaches. The concern with racial motivation proceeds from an underlying normative assumption about the place of race in politics that is profoundly …

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton …

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

Reel Time/Real Justice, Kimberlé W. Crenshaw

Faculty Scholarship

Like the Anita Hill/Clarence Thomas hearings a few months before, the Rodney King beating, the acquittal of the Los Angeles police officers who "restrained" him and the subsequent civil unrest in Los Angeles flashed Race across the national consciousness and the gaze of American culture momentarily froze there. Pieces of everyday racial dynamics briefly seemed clear, then faded from view, replaced by presidential politics and natural disasters.

This Essay examines in more depth what was exposed during the momentary national focus on Rodney King. Two main events – the acquittal of the police officers who beat King and the civil …

Race, Gender, And Sexual Harassment, Kimberlé W. Crenshaw

Faculty Scholarship

I would like to thank Anita Hill and express my deep respect to her for having the courage to shatter the silence on sexual harassment. I am certain that I speak for millions of women in saying that I have been inspired and renewed by her strength and integrity.

I have looked forward to addressing you tonight on a critical issue at this very important juncture in our political history. Sexual harassment has captured our attention over the last several weeks and has of course galvanized women in a way that scarcely could have been imagined only a few short …