Law and Race Commons^™

Gen Y More Black Corporate Directors, Chaz Brooks

Articles in Law Reviews & Other Academic Journals

Corporate diversity has been in the spotlight for decades. Recent efforts have followed years of legal scholarship, arguments on the business rationale for greater diversity, and more recently, the racial unrest during the summer of 2020. Called by some, a “racial reckoning,” the summer of 2020 catalyzed many corporate declarations on the importance of diversity, and more to the point of this article, the necessity of righting the economic disadvantages of Black Americans. This article looks specifically at one intervention by a corporate player following summer 2020, Nasdaq’s volley to increase corporate diversity through required disclosure. This article reviews the …

James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter

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In his work, Freedom National: The Destruction of Slavery in the United States, 1861-1865, James Oakes provides an overview of several Civil War era legal instruments regarding enslavement in the United States. One of the statutes he examines is An Act to Confiscate Property Used for Insurrectionary Purposes, passed by the Thirty Seventh Congress in August, 1861. This law, popularly known as the First Confiscation Act (FCA), is one of the several "Confiscation Acts" that contributed to the weakening of legal enslavement during the War. Fortunately, scholars have contextualized and deemphasized President Lincoln's role as the "Great Emancipator" by examining …

A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz Brooks

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The Community Reinvestment Act of 1977 ("CRA") primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy—it must not allocate credit.

This essay considers how …

The Law Of Friends, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

A serious law professor would not write an article about the TV show Friends, but having just written a book and an article, I’m on a “break.” Besides, I’m not that serious a law professor. And Friends is as good a topic as any. For those of us of a certain age—too young to have watched M.A.S.H. when it came out and old enough to remember watching broadcast TV and not just through a streaming service on a device—Friends was and is a big deal. It both captured a particular moment in history and helped make that moment.

Looking back …

Citizen's Arrest And Race, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

The Perils Of Private Prosecutions, Angela J. Davis

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In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.

Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …

Unmasking The Nineteenth Amendment Centennial Through The Pandemic Lenses Of Liberty, Loss, Masculinity, And Leadership [Comments], Jamie Abrams

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Celebrating the Centennial of the Nineteenth Amendment in this political, economic, and social moment was a tale of two extremes. On the one hand, the Centennial occurred contemporaneously with the election of Kamala Harris as the nation's first woman Vice President offering a tremendous celebratory bookend of political success. On the other hand, we celebrated the Centennial amid a global pandemic that has taken over 740,000 American lives2 and in a crescendo of searingly painful calls for racial justice. In reflecting on the Centennial in this political, social, and economic moment, this article unmasks the lenses of loss, liberty, masculinity, …

The Insights, Uses, And Ethics Of Social Neuroscience In Anti-Discrimination Law, Susan Carle

Articles in Law Reviews & Other Academic Journals

The article explores the uses in anti-discrimination law of social neuroscience—a broad interdisciplinary field that draws on the insights of brain science, medicine, epidemiology, social psychology, behavioral economics, moral cognitive neuroscience and many other experimentally based disciplines. It discusses the promising uses of social neuroscience findings from all these subfields on such matters as the irrational biases of “fast” thinking processes in general, and implicit biases against “out” groups more specifically, as well as group conformity, the black sheep effect, and more. The article traces a few of the ways these insights can help inform anti-discrimination law in both particular …

White Parents Searching For White Public Schools, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

The New White Flight makes two significant contributions to our understanding of race and education. First, it argues that white parents chose to send their children to segregated, disproportionately white schools. This choice is reflected in white residential preferences for areas where "pricing-out mechanisms" ensure that the local school is disproportionately white. (P. 254.) This racially-motivated choice holds "even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality." (P. 236.) Second, it shows how charter schools give …

Race, Space And Democracy: Locally-Based Strategies For Development - Panel Discussion From Fourth National People Of Color Legal Scholarship Conference, Hosted At The American University Washington College Of Law, Ezra Rosser, Audrey Mcfarlane, Erika Wilson, Michele Alexander

Articles in Law Reviews & Other Academic Journals

Panel Discussion from Fourth National People of Color Legal Scholarship Conference, Hosted at the American University Washington College of Law:

[Audrey McFarlane] Alright, good morning everyone, thank you for joining us. This is the race, space, and democracy panel, locally based strategies for

development. Right now we have with us, me. I'm Audrey McFarlane. I'm a professor at the University of Baltimore. We also have Erika Wilson, who is a professor at the University of North Carolina. I'm going to dispense with the long bios, and commend you to the program guide for the long bios. Suffice it to say, …

Erasing Race, Llezlie Green

Articles in Law Reviews & Other Academic Journals

Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …

Equality Is A Brokered Idea, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Acting Differently: How Science On The Social Brain Can Inform Antidiscrimination Law, Susan Carle

Articles in Law Reviews & Other Academic Journals

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between "us" versus "them" on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, …

Speech Across Borders, Jennifer Daskal

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As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

Building Bridges: Examining Race And Privilege In Community Economic Development: Introductory Overview, Priya Baskaran

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Why The Legal Strategy Of Exploiting Immigrant Families Should Worry Us All, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article applies a family law lens to explore the systemic and traumatic effects of modern laws and policies on immigrant families. A family law lens widens the scope of individuals harmed by recent immigration laws and policies to show why all families are affected and harmed by shifts in state power, state action, and state rhetoric. The family law lens reveals a worrisome shift in intentionality that has moved the state from a bystander to family-based immigration trauma to an incendiary agent perpetrating family trauma.

Modern immigration laws and policies are deploying legal and political strategies that intentionally sever …

Publicly Charged: A Critical Examination Of Immigration Public Benefit Restrictions, Cori Alonso-Yoder

Articles in Law Reviews & Other Academic Journals

Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration policies …

Property, Race, Segregation, And The State Property, Ezra Rosser

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Property scholars have neither forgotten nor ignored the government's role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities and the resistance of wealthier white towns to affordable housing.

Nevertheless, Richard Rothstein's book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government-at the local, state, and federal levels-denied African-Americans equal access to space and property.

Racial Purges, Robert Tsai

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Articles in Law Reviews & Other Academic Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …

Illuminating Black Data Policing, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies. This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use …

The Economic Justice Imperative For Lawyers In Trump Country, Priya Baskaran

Articles in Law Reviews & Other Academic Journals

This article serves as a call to action for rural law schools to meaningfully incorporate economic justice into transactional legal education, and in doing so, train much needed rural advocates, legal experts, and local leaders. Rural areas are continuously portrayed as “Trump Country” in today’s mainstream media coverage, which largely focuses on socio-cultural differences between urban and rural areas. Many rural scholars and activists are troubled by the “Trump Country” label as it masks the structural poverty issues that lead to housing insecurity, water insecurity, poor public health indicators, unemployment, underemployment, troubled public education systems, and environmental degradation impacting both …

The Washington Redskins Case And The Search For Dignity, Victoria Phillips

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INTRODUCTION: For more than sixty years, Native American activists have been involved in discussions and protests over the appropriation and use of tribal references in sports names, logos, and mascots. During this same period, many of these uses have since been changed, driven by civil rights struggles and a growing awareness of the proven social harms and racism inherent in these references. Despite a gradual movement towards abolition and evolving signs of cultural understanding, many mascots invoking Native names and imagery persist today across professional, collegiate, and local school district sports. These mascots and team names, and the trademarks associated …

Laying The Foundation: The Private Rental Market And Affordable Housing, Ezra Rosser

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The private rental housing market plays a critical, and often overlooked, role in shaping the lives of the poor and the surrounding community. This brief Article presents Matthew Desmond’s rich portrayal of low-income tenants and their landlords in his groundbreaking new book, Evicted, which shows how poor housing conditions and cycles of eviction impact poor families. The Article, which also draws upon Courtney Anderson’s work connecting housing instability with problematic student turnover at an elementary school, highlights the importance of story-telling. Without some sort of subsidy to cover the gap between the ability of the poor to pay for housing …

Addressing The Lack Of Diversity In The Legal Profession, At The Undergraduate Level, Michael W. Carroll, Troy Romero

Articles in Law Reviews & Other Academic Journals

The study and practice of law is among the most respected and well-regarded pursuits; unfortunately, it is also among the least diverse. The persistent and alarming lack of diversity is prevalent in the industry regardless of the culture. In the United States and in Europe, statistics show that lawyers are overwhelmingly comprised by white males, especially in the higher ranks of the profession. Several factors contribute to this lack of diversity, including access to legal professionals and costs associated with pursuing a legal degree. Several strategies have been initiated to increase diversity in the field, including increasing awareness of the …

Stories Of Teaching Race, Gender, And Class: A Narrative, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

This Essay transcribes and discusses Smith's keynote speech at the New England Clinical Conference at Harvard Law School in November, 2015. Smith's speech discusses the intersection between race, gender, and class, highlighting them as sites of vulnerability through a personal storytelling lens. By sharing her individual experiences, Smith hopes to draw attention to insecurities and threats faced by many individuals who refuse to speak out.

Frontlines: Policing At The Lexus Of Race And Mental Health, Camille Nelson

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he last several years have rendered issues at the intersection of race, mental health, and policing more acute. The frequency and violent, often lethal, nature of these incidents is forcing a national conversation about matters which many people would rather cast aside as volatile, controversial, or as simply irrelevant to conversations about the justice system. It seems that neither civil rights activists engaged in the work of advancing racial equality nor disability rights activists recognize the potent combination of negative racialization and mental illness at this nexus that bring policing practices into sharp focus. As such, the compounding dynamics and …

Stories Of Teaching Race, Gender, And Class: A Narrative, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

This Essay arises out of the keynote speech that I gave at the New England Clinical Conference at Harvard Law School in November 2015. The conference theme was, “Teaching Race, Gender and Class: Learning from Our Students, Communities and Each Other.” The primary planners and hosts for the conference were clinical teachers and programs in the Northeast, but participants came from around the country to talk about the importance of addressing race, gender and class in this moment of black lives mattering. They wanted to talk about the way that these issues of race, gender and class had always been …

Independence And Immigration, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Should The American Grand Jury Survive Ferguson, Roger Fairfax

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The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied