Law and Race Commons^™

Modern Authorities From Brandies To Brnovich: For Jurists Who Have Considered Social Science / When Doctrine Was Not Enough, Jeremiah Chin

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While the Supreme Court is the final authority on the Constitution, its interpretations increasingly turn to outside, non-legal sources to authoritatively support its conclusions of law and fact. Particularly in cases involving racial discrimination, the Court relies on social science data presented by the trial record, amicus curiae, or its own research. However, the Court lacks explicit rules or methods of analysis for these data. To remedy this gap in analysis, this article proposes a critical methodology for analyzing the use of social science data in cases involving race. By outlining a historiography of the Court's invocation of extrinsic data, …

Violence Everywhere: How The Current Spectacle Of Black Suffering, Police Violence, And The Violence Of Judicial Interpretation Undermine The Rule Of Law, David B. Owens

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No abstract provided.

The Myth Of The Great Writ, Leah M. Litman

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Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Why Do People Discriminate Against Jews?, David Abraham

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No abstract provided.

Incentivizing Fair Housing, Stewart E. Sterk

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Restrictive land use regulation has thwarted the upward mobility of many Americans, particularly Americans of color. Local restrictions imposed by affluent municipalities have limited access to safe neighborhoods, better housing, and good schools. Racism and economic self-interest have both played a role in exclusionary practices which have contributed to high housing costs that place a strain on the entire economy.

Fair Housing Act litigation has been one weapon in the fight against these practices. Despite the Supreme Court's decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. , disparate impact litigation faces significant obstacles that …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

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This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Private Confederate Monuments, Jessica Owley, Jess Phelps, Sean W. Hughes

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As public Confederate monuments finally begin to come down across the nation, we are seeing an emergence of Confederate monuments on private lands. The number of private Confederate monuments is increasing both with the construction of new monuments and, more significantly, the relocation of monuments from public land. This Article explains why private Confederate monuments are likely to be the next battleground over these controversial and troubling statues. Through ten detailed examples, we show how private Confederate monuments emerge and how communities are responding to them. The challenges related to monuments on private land are different than those on public …

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia Gonzalez

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No abstract provided.

Booktalk: The Cult Of The Constitution, Mary Anne Franks

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No abstract provided.

Race And The First Amendment: A Compendium Of Resources, Solomon F. Worlds, Leonard M. Niehoff

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This article provides summaries of law review articles and books that consider the complex relationship between racial justice and free speech. It seeks to assist law students, legal scholars, judges, and practitioners to think more deeply about the intersection between these critically important values. It describes scholarship that views these values as complementary, but also scholarship that views them as conflicting.

#Metoo Innovators: Disrupting The Race And Gender Code By Asian Americans In The Tech Industry, Xuan-Thao Nguyen

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This Article focuses on how Asian American women innovators of the #MeToo generation are disrupting the code of conduct in the tech industry. The code is hard-wired into the tech bro culture of mirrortocracy, resulting in hiring practices that perpetuate existing company demographics and statistics that show that Asian American women face 2.91 times the disadvantage compared to white women. In addition, of all gender and racial groups, Asian American female innovators are the least likely to become executives. This Article identifies and explains how these innovators are the disruptors on several fronts. Utilizing everything from judicial means to traditional …

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

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This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

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The article critiques the Pure Theory of Law, arguing that it is inadequate and detached from the dynamic and creative aspects of legal practice. The author advocates for a reimagined legal theory that integrates critical perspectives, embodiment, and a connection to the natural world, emphasizing the need for adaptability and responsiveness over static dogma.

Covid-19 Reflections On Resilience And Reform In The Child Welfare System, Robert Latham, Kele Stewart

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No abstract provided.

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

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Confederate monuments have again received increased attention in the aftermath of George Floyd's tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the "death" or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

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The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

The Eighth Amendment Power To Discriminate, Kathryn E. Miller

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For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.' After decades of attempting to eliminate the requirement, conservative justices …

Identity: Obstacles And Openings, Osamudia R. James

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Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.

Addiction-Informed Immigration Reform, Rebecca Sharpless

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Immigration law fails to align with the contemporary understanding of substance addiction as a medical condition. The Immigration and Nationality Act regards noncitizens who suffer from drug or alcohol substance use disorder as immoral and undesirable. Addiction is a ground of exclusion and deportation and can prevent the finding of "good moral character" needed for certain immigration applications. Substance use disorder can lead to criminal behavior that lands noncitizens, including lawful permanent residents, in removal proceedings with no defense. The time has come for immigration law to catch up to today's understanding of addiction. The damage done by failing to …

New Textualism And The Thirteenth Amendment, Leah Litman

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Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …

Second Redemption, Third Reconstruction, Richard A. Primus

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In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

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No abstract provided.

Etched In Stone: Historic Preservation Law And Confederate Monuments, Jess R. Phelps, Jessica Owley

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This Article examines the current controversy regarding Confederate monuments. While many have focused on the removal of these commemorative objects, the legal framework regarding their protection has not been fully explored. This Article provides an in-depth understanding of the application of historic preservation laws to monument removal efforts and examines the impact of these federal, state, and local laws. The examination raises significant questions about the permanency of preservation laws generally. This Article considers how historic significance is evaluated and valued, noting the lack of flexibility and absence of mechanisms for reevaluating past protection decisions. This Article uses the Confederate …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay

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No abstract provided.

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

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This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …

Uncompromising Hunger For Justice: Resistance, Sacrifice, And Latcrit Theory, Brenda Williams, Edwin Lindo, Marc-Tizoc González

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In this Article, three law professors report on and theorize a nonviolent direct-action campaign of the kind discussed by Dr. King in his famous Letter from a Birmingham Jail. Using the basic steps of the nonviolent campaign as an organizing framework, they analyze and report on the 18-day hunger strike by the Frisco 5 (a.k.a., Frisco5). This direct action protested the extrajudicial killings of Amilcar Perez-Lopez, Alex Nieto, Luis Góngora-Pat, and Mario Woods by San Francisco Police Department (SFPD) officers and advocated for institutional change to reduce the risk of homicides against persons with similarly racialized minority-group identities. Two weeks …

Black, Poor, And Gone: Civil Rights Law’S Inner-City Crisis, Anthony V. Alfieri

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In recent years, academics committed to a new law and sociology of poverty and inequality have sounded a call to revisit the inner city as a site of cultural and socio-legal research. Both advocates in anti-poverty and civil rights organizations, and scholars in law school clinical and university social policy programs, have echoed this call. Together they have embraced the inner city as a context for experiential learning, qualitative research, and legal-political advocacy regarding concentrated poverty, neighborhood disadvantage, residential segregation, and mass incarceration. Indeed, for academics, advocates, and activists alike, the inner city stands out as a focal point of …

The Legacy Of Colonialism On The Rule Of Law In Sub Saharan Africa, Joel H. Samuels

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No abstract provided.

Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed white supremacist reaction to the nation’s first black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …