Law and Race Commons^™

Racism And Trademark Abandonment, Jon J. Lee

Faculty Articles

As companies have come to terms with the fact that their brand names and imagery have connections to our country’s racist history, they have publicly announced their commitments to shed their ignominious trademarks. But unlike a physical monument, a trademark cannot be destroyed or removed. Under the prevailing doctrine, abandoned trademarks return to the public domain, free for another company to claim and use—even if it is to capitalize on the mark’s recognition as a symbol of oppression. This puts companies who wish to sever their ties with their racist trademarks in an intractable situation: either they make good on …

Diversity Disclosures: Unconstitutionally Compelled Speech By The Sec, Steven Cleveland

Faculty Articles

No abstract provided.

Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …

Defunding C.O.P.S.: Conditioning Federal Funding To State And Local Law Enforcement Agencies Upon The Implementation Of A Program That Screens Its Current And Future Officers For White Supremacist Affiliations, Jerron R. Wheeler

Faculty Articles

This Article calls upon Congress to protect its citizens where state and local legislators will not. Although Congress is limited in its ability to regulate local policing, the United States Constitution does provide authority for some congressional reform and oversight into matters of state and local law enforcement through Article 1, Section 8. Congress can (and has before) conditioned the receipt of federal funds over states' conformity to federal standards or programs. This Article proposes that the millions of dollars in federal grants sent to state and local police organizations be conditioned upon each organization's compliance with a program designed …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Radical Reformation: Diverse Pathways To Attorney Licensure Will Yield A More Diverse Profession, Carla Pratt

Faculty Articles

No abstract provided.

(Im)Mutable Race?, Deepa Das Acevedo

Faculty Articles

Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Assessing The Viability Of Race-Neutral Alternatives In Law School Admissions, Eboni Nelson, Ronald Pitner, Carla Pratt

Faculty Articles

The past several years have been challenging times for law schools. Many have experienced declines in student enrollment due to a shrinking applicant pool. The declining number of applicants presents increased challenges for law schools, particularly concerning their efforts to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action, it is imperative to engage in a project, such as this, that examines the relationship between racial categories and race-neutral identity factors in law school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Judging Identity, Carla Pratt

Faculty Articles

No abstract provided.

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Faculty Articles

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …

Blind Spot: The Inadequacy Of Neutral Partisanship, Melissa Mortazavi

Faculty Articles

No abstract provided.

The End Of Indeterminacy In Affirmative Action, Carla Pratt

Faculty Articles

After the Supreme Court's decision in Fisher v. UT Austin, the stage has been set for judges to demand more specificity in the articulation of the protected diversity interest. Gone are the days when institutions of higher education could rely on the abstract concept of diversity to support efforts to enroll a diverse student body. Now higher education institutions will need to give serious thought to how they define the sought after diversity interest and how racial diversity improves educational outcomes and enhances the education that is delivered.

Sisters In Law: Black Women Lawyers' Struggle For Advancement, Carla Pratt

Faculty Articles

While the presence of women in law school and the legal profession has improved greatly, the uncomfortable reality is that women tend to occupy positions in the legal profession that subordinate them to men. This reality is even more glaring when the position of black women is examined. Black women carry the burden of multiple consciousness which influences every aspect of their professional lives. Multiple consciousness means that black women must be mindful of their professional identity, their gender and their race in navigating the pipeline to power. This paper will explore the multiple consciousness that intersecting identities invoke and …

Bias In The Classroom, One Degree Removed: The Story Of Turner V. Stime And Amicus Participation, Robert S. Chang

Faculty Articles

This article summarizes a recent amicus brief written by the Korematsu Center. It describes a Spokane, Washington medical malpractice case where juror racial bias toward a party’s attorney was used as direct evidence. It describes the momentum and mobilization of the amicus brief, and the success in the appellate courts. It is offered as a model for how law school clinics can engage in effective advocacy to help democratize the courts.

Way To Represent: The Role Of Black Lawyers In Contemporary American Democracy, Carla Pratt

Faculty Articles

The legal profession has articulated a commitment to racial diversity. This essay attempts to articulate the unique contribution that black lawyers make to the legal profession and the role black lawyers play in strengthening our democracy.

Racial Exhaustion, Darren L. Hutchinson

Faculty Articles

This Article proceeds in three principle parts. Part II explains the role of rhetoric and narratives in shaping commonly held societal beliefs and argues that racial exhaustion discourse functions as a social script that seeks to portray the United States as a post-racist society. Part II then summarizes the basic content of racial exhaustion rhetoric and identifies five common arguments that have endured across historical contexts, which depict race-based remedies as redundant, taxing, injurious to whites, special handouts to blacks, and futile because law cannot alter racial inequality. Next, Part II examines the political rhetoric employed by nineteenth-century Congressional opponents …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren L. Hutchinson

Faculty Articles

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform liti­gation a judicial relic. Part II examines the historical development of in­stitutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post­-Brown era and contrasts those cases with Judge Sanders's rulings on the subject. In …

Loving Indian Style: Maintaining Racial Caste And Tribal Sovereignty Through Sexual Assimilation, Carla Pratt

Faculty Articles

Scholars have generally characterized Loving v. Virginia as a case about the line separating whites from blacks. But within the subtext of Loving there is an additional narrative about the line separating blacks from Indians. State laws governing miscegenation had a profound impact on tribal law and the practices of tribal people by indirectly regulating interracial relations between certain nonwhite groups of people and rendering blacks as undesirable partners for marriage.

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Taking Diversity Seriously: Affirmative Action And The Democratic Role Of Law Schools: A Response To Professor Brown, Carla Pratt

Faculty Articles

No abstract provided.

The Little Rock School Desegregation Cases In Richard Arnold's Court, Polly J. Price

Faculty Articles

This article proceeds as follows. Because it is first necessary to recount some of the history of the Little Rock school cases, Part I discusses the origins and early steps in the long-running litigation. Part II considers the period from 1982 until 2004 when Richard Arnold was a member of the appellate panel assigned to the school cases. This part identifies three critical points of the Eighth Circuit's intervention under Judge Arnold's leadership. In Part III, I suggest how Arnold's motivations for his decisions in the Little Rock school cases related to both his particular view of the limitations of …

Tribal Kulturkampf: The Role Of Race Ideology In Constructing Native American Identity, Carla Pratt

Faculty Articles

No abstract provided.

Tribes And Tribulations: Beyond Sovereign Immunity And Toward Reparation And Reconciliation For The Estelusti, Carla Pratt

Faculty Articles

This Article advocates a form of micro-reparations for a limited class of African Americans--the Estelusti (black Indians). The Article seeks reparations in the form of racial healing not only from the United States Government, but also from one particular participant in African American slavery--Native American Indian Tribes. The Article begins by defining the theory of micro-reparations and providing the historical foundation which serves as the factual predicate to the claim that black Indians have for reparation. This part of the article establishes how the rule of hypo-descent or the "one drop rule" has served historically and presently to exclude black …

Critical Race Histories: In And Out, Darren L. Hutchinson

Faculty Articles

Insider critiques of CRT also require critical assessment. Recent internal critics complain that racial identity discourse, including multidimensionality theory, marginalizes more important attention to material, class, or economic issues. If their claim holds true, the material harm critics serve a vital purpose: because racial injustice causes and interacts with economic deprivation, any progressive racial justice movement should interrogate class and economic inequality concems. Nevertheless, the analysis of the material harm critics suffers because it dichotomizes class and multidimensionality. Although these critics bifurcate multiplicity and class analysis, multiplicity theories relate to class analysis in two important respects. First, poverty has multidimensional …