Law and Race Commons^™

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman

Faculty Scholarship

No abstract provided.

Dystopian Dreams, Utopian Nightmares: Ai And The Permanence Of Racism, Chaz Arnett

Faculty Scholarship

This Essay draws connections between Octavia Butler’s Parable series (Parable of the Sower and Parable of the Talents), HBO’s Westworld, and Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism to highlight how the reconfiguration and transmutation of race through technological change is facilitated by corresponding shifts in legal doctrine, theory, policy, and practice. It takes the overlapping threads from these three sources, which struggle with the idea of change within larger systems of unavoidable, repetitive destruction, and ties them to the law’s role in helping to shield race through the storms of change …

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Automated Stategraft: Electronic Enforcement Technology And The Economic Predation Of Black Communities, Sonia Gipson Rankin, Melanie E. Moses, Kathy Powers

Faculty Scholarship

Automated traffic enforcement systems disproportionately impact Black communities in the United States. This Essay uncovers a troubling reality: while technologies such as speed cameras and red light cameras are often touted as tools for public safety by the National Highway Safety Transportation Administration, they disproportionately burden Black and Hispanic neighborhoods. The authors coin the term “automated stategraft” to describe this phenomenon—an insidious process that siphons financial resources from already vulnerable groups under the guise of law enforcement. In doing so, it exacerbates economic disparities and erodes trust in legal and governmental institutions.

This Essay delves into the biases inherent in …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

The Celebration Of Interracial Intimacy Racial Mixture As The Cure For Racism – A Critical View, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

Racial Targets, Atinuke O. Adediran

Faculty Scholarship

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose

Faculty Scholarship

This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …

Corporate Racial Responsibility, Gina-Gail S. Fletcher, H. Timothy Lovelace Jr.

Faculty Scholarship

The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation to extreme progressivism at shareholders’ expense. Others, while thinking corporate engagement was long overdue, critiqued corporate commitment as insincere.

Drawing on historical evidence surrounding the passage of Title II of the Civil Rights Act of …

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

Final Report Of The Mexican Reintegration Project Study, Guillermo J. Garcia Sanchez, Sonia Hernandez, Luz E. Herrera, Angela D. Morrison, Huyen Pham, Nancy Plankey-Videla

Faculty Scholarship

The phenomenon of Mexicans returning to Mexico after an extended stay in the United States is an increasingly important one. Though estimates for the period from 2014 through 2019 show that more Mexicans have migrated to the United States than left, net migration is still well below that of peak net migration from 1995 to 2000. In the period of 2014-2019, the net migration of Mexican nationals to the United States was only 160,000 versus 2.3 million during the period from 1995 to 2000. From 2005–2014, the U.S. experienced an outmigration of Mexican nationals, as more Mexicans left the U.S. …

Reporte Final Del Estudio Del "Proyecto De Reintegración Mexicana", Guillermo J. Garcia Sanchez, Sonia Hernandez, Luz E. Herrera, Angela D. Morrison, Huyen Pham, Nancy Plankey-Videla

Faculty Scholarship

El fenómeno de los mexicanos que estan regresando a México después de una estadía prolongada en Estados Unidos es cada vez más importante. Aunque las estimaciones para el período de 2014 a 2019 muestran que más mexicanos han migrado a Estados Unidos de los que se fueron, la migración neta todavía está muy por debajo del pico de migración neta de 1995 a 2000. En el período de 2014-2019, la migración neta de mexicanos a Estados Unidos era de tan solo 160,000 versus 2.3 millones durante el periodo de 1995 a 2000. Entre 2005 y 2014, Estados Unidos experimentó una …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Latinas In The Legal Academy: Progress And Promise, Raquel E. Aldana, Emile Loza De Siles, Solangel Maldonado, Rachel F. Moran

Faculty Scholarship

The 2022 Inaugural Graciela Oliva ́rez Latinas in the Legal Academy (“GO LILA”) Workshop convened seventy-four outstanding and powerful Latina law professors and professional legal educators (collectively, “Latinas in the legal academy,” or “LILAs”) to document and celebrate our individual and collective journeys and to grow stronger together. In this essay, we, four of the Latina law professors who helped to co-found the GO LILA Workshop, share what we learned about and from each other. We invite other LILAs to join our community and share their stories and journeys. We hope that the data and lessons that we share can …

“With All Deliberate Speed”: The Ironic Demise Of (And Hope For) Affirmative Action, Vinay Harpalani

Faculty Scholarship

Is affirmative action in university admissions about to end? As the United States Supreme Court prepares to decide lawsuits against Harvard and the University of North Carolina Chapel Hill (UNC), the outlook for race-conscious admissions policies is not good. Even before its recent rightward shift, the Court had long been hostile to such policies, and many observers think it will now overturn Grutter v. Bollinger and end them altogether. Such a ruling would be a painful and paradoxical twist for civil rights advocates. In a classic turn of Orwellian irony, the plaintiffs challenging affirmative action now call themselves Students for …

(A)Woke Workplaces, Michael Z. Green

Faculty Scholarship

With heightened expectations for a reckoning in response to the broad support for the Black Lives Matter movement after the senseless murder of George Floyd in 2020, employers explored many options to improve racial understanding through discussions with workers. In rejecting any notions of the existence of structural or systemic discrimination, let alone the need to address the consequences of such discrimination, certain groups have begun to oppose BLM by seeking to diminish any social justice actions. One of those key resistance efforts includes labelling in pejorative terms any employers that pursue anti-racism objectives via social justice statements or internal …

Racial Equality Compromises, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Faculty Scholarship

McCleskey v. Kemp¹ operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.² By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.³ But what if McCleskey had been decided differently? Given that Washington v. Davis⁴ held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”⁵ could McCleskey have articulated an approach to equal protection doctrine …

Foreword: Finding Balance In The Fight Against Gun Violence, Michael Ulrich

Faculty Scholarship

The United States is distinct among high-income countries for its problem with gun violence, with Americans 25 times more likely to be killed by gun homicide than people in other high-income countries.¹ Suicides make up a majority of annual gun deaths — though that gap is closing as homicides are on the rise — and the U.S. accounts for 35% of global firearm suicides despite making up only 4% of the world’s population.² More concerning, gun deaths are only getting worse. In 2021, firearm fatalities approached 50,000, the highest we have seen in at least 40 years.^{3 …}

Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

Faculty Scholarship

Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so …

Black Lives Monitored, Chaz Arnett

Faculty Scholarship

The police killing of George Floyd added fuel to the simmering flames of racial injustice in America following a string of similarly violent executions during a global pandemic that disproportionately ravaged the health and economic security of Black families and communities. The confluence of these painful realities exposed deep vulnerabilities and renewed a reckoning with the long unfulfilled promise of racial equality, inspiring large-scale protests around the country and across the globe. As with prior movements for racial justice, from slavery abolition to the civil rights movement’s demand to end Jim Crow, protests have been met with extreme force, either …

Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson

Faculty Scholarship

Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …