Law and Race Commons^™

Not Him, Sister's Stories & Teresita (Poems), Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

Commercial And Corporate Lawyers 'N The Hood, Alfred Dennis Mathewson

Faculty Scholarship

I shall begin the development of this proposition with a theme from a "Last Lecture" I was asked to deliver by the UNM Campus Ministries several years ago. I was asked to pretend that I would die immediately after giving the lecture. I opened the lecture with a story my mother used to tell us about the time she was traveling on Trailways with two of my older brothers, then toddlers. The bus driver asked her to move to the back of the bus. She had not wanted to get up but decided that compliance with the demand was in …

Emphasizing Torts In Claims Of Discrimination Against Black Female Athletes, Alfred Dennis Mathewson

Faculty Scholarship

In Black Women, Gender Equity and the Function at the Junction, I argued that an equality-based legal regime does not provide an adequate remedy for African-American female athletes. Instead I suggested that a tort-based regime may be more appropriate. I did so knowing that gender and racial discrimination are torts and I did not intend to suggest otherwise. They are statutory torts founded upon equality principles. What I intended was to draw more upon the general tort principles involved in an antidiscrimination action. I specifically invoked the notion of using mass tort theories. I wish to sketch a brief but …

A Comparative Analysis Of Women's Issues: Toward A Contextualized Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

"This Article proposes a methodology for comparative analysis of women's rights using insights from critical race theory and feminism. Comparative analysis by a Western scholar must reconcile a perspective developed in the United States with respect for another culture. In discussing women's rights, lawyers, judges, students and sociologists have justified certain women's situations as an inherent aspect of culture. For example, traditional "female genital surgery" has been defended as a "mere bodily mutilation" that is the "sine qua non of the whole teaching of tribal law, religion, and morality." In Mexico, "machismo" has been justified as an immutable characteristic of …

The World Refugee Regime In Crisis: A Failure To Fulfill The Burden-Sharing And Humanitarian Requirements Of The 1951 Refugee Convention, Susan M. Akram

Faculty Scholarship

Professor Musarat-Akram provided several examples which illustrate the crisis of the international refugee regime. Specifically, they illustrate, first, that the protections offered so generously in the language and purpose of the 1951 Refugee Convention⁷ are more European and-Western-centered than ever before.

Second, they illustrate some of the restrictionist policies by which Western and industrialized states have succeeded in confining huge refugee flows to the most impoverished and least developed states in the world.

Third, they illustrate that the initial limitations inherent in the 1951 Refugee Convention have now been exacerbated by state practice which interprets the Convention language and …

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 …

Both Edges Of The Margin: Blacks And Asians In Mississippi Masala, Barriers To Coalition Building, Taunya Lovell Banks

Faculty Scholarship

Asians often take a middle position between White privilege and Black subordination and therefore participate in what Professor Banks calls "simultaneous racism," where one racially subordinated group subordinates another. She observes that the experience of Asian Indian immigrants in Mira Nair's film parallels a much earlier Chinese immigrant experience in Mississippi, indicating a pattern of how the dominant power uses law to enforce insularity among and thereby control different groups in a pluralistic society. However, Banks argues that the mere existence of such legal constraints does not excuse the behavior of White appeasement or group insularity among both Asians and …

Religious Rituals And Latcrit Theorizing, Margaret E. Montoya

Faculty Scholarship

After the first annual LatCrit conference held at La Jolla, California, Professor Keith Aoki observed that "issues of religion and spirituality are submerged not far below the surface of emerging Latina/o Critical Theory." He proposed that LatCrits begin to "unbracket" religious affiliation and identity in the construction and representation of individual and group racial identities. Professor Aoki further posited that "[i]n a paradoxical way, religion simultaneously may be both more and less difficult to voluntarily discard than race, language or nationality as a constitutive element of one's individual and group identity.

Single-Parent Latinas On The Margin: Seeking A Room With A View, Meals, And Built-In Community, Laura M. Padilla

Faculty Scholarship

This article considers the unique challenges of single parent Latinas and and a different way of viewing concerns of single parents. This alternative paradigm uses a holistic approach to the problems I had been pondering, acknowledging their interconnectedness, rather than artificially segmenting them into disjointed issues. I visualized a multi-pronged approach to Latina mothers' many concerns, based on a cohousing model, as modified for the needs of a low-income, racially distinct population of single-parent Latinas. It describes co-housing and proposes that this housing model be more broadly accessible through land use changes and greater acceptance of housing beyond single family …

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 …

Note, Moving Ground, Breaking Traditions: Tasha’S Chronicle, Angela Onwuachi-Willig

Faculty Scholarship

This Note uses a fictional dialogue to analyze and engage issues concerning stereotypes, stigmas, and affirmative action. It also highlights the importance of role models for students of color and the disparate hiring practices of law firms and legal employers through the conversations and thoughts of its main character, Tasha Crenshaw.

Family Secrets, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

Academic Mestizaje: Re/Producing Clinical Teaching And Re/Framing Wills As Latina Praxis, Margaret E. Montoya

Faculty Scholarship

What follows is an analysis that draws connections between activist teaching and activist scholarship and posits that it is the activism, the focus on the needs of Latinas/as, that makes them community service. In Part I, I describe the community lawyering program, one of the clinical law options, available at the University of New Mexico School of Law. In Part Il, I undertake to re-frame the law of wills in order to make this end-of-life ritual more relevant to the lives of Latinas/os. I then I enact a LatCritique of academic discussions and Outsider discourses. I conclude by examining our …

Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya

Faculty Scholarship

I analyze the connection of affirmative action to two models of race and racism. I contend that the Supreme Court Justices who continue to support affirmative action adhere to a "prejudice" model in which race is a concept to be overcome and racism is merely a condition of individual ignorance. 13 On the other hand, I posit that Professor Butler's proposals fall within a "white supremacy" model, which looks at race as a historically contingent concept that has been used to subordinate non-white peoples from precolonial times through the present. This historical perspective offers the possibility that the concept of …

Latcrit Praxis To Heal Fractured Communities, Laura M. Padilla

Faculty Scholarship

This Essay explores LatCrit praxis as a healing tool. Before turning to LatCrit practice, let me offer a preliminary observation that many Latinos are troubled by leading divided lives in fractured communities. This is exacerbated by social conditioning which encourages Latinos, as well as other outsiders, to fragment their identities. One of the benefits of LatCrit theory is that it encourages the process of working toward wholeness. At a recent conference which looked at the courage of those who have decided to live lives divided no more, Parker Palmer, the plenary speaker, suggested that the spark which causes people to …

Intersectionality And Positionality: Situating Women Of Color In The Affirmative Action Dialogue, Laura M. Padilla

Faculty Scholarship

This article explores the position of women of color in the affirmative action dialogue. Affirmative action has come under attack locally, statewide, and federally. During this same period, critical race feminists have brought into sharp relief how women of color are marginalized or erased in discourses over sex and gender, as well as over race and ethnicity. Despite these protests and warnings, the current debate over affirmative action continues this history of invisibility, perpetuating America's spoken and unspoken conceptions about where women of color belong. For example, most discussion of affirmative action focuses on race, more specifically on African-Americans. Some …

Voicing Differences (Comment), Margaret E. Montoya

Faculty Scholarship

Jane Aiken and Kimberly O'Leary undertake the difficult work of developing specific approaches and techniques for taking account of characteristics such as race/ethnicity, gender, dis/ability, and sexual identity in clinical pedagogy. Carolyn Grose uses outsider narratives and popular culture to challenge the "pre-understanding" of students, and to assist them to accept client stories as true and valid. Focusing on the professional value of striving to promote justice, fairness, and morality identified in the MacCrate Report, Professor Aiken exhorts us to promote justice by unmasking privilege, the invisible package of unearned assets--about which I (we? or you?) was "meant" to remain …

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 …

Voices/Voces In The Borderlands: A Colloquy On Re/Constructing Identities In Re/Constructed Legal Spaces, Margaret E. Montoya, Melissa Harrison

Faculty Scholarship

While we believe that the work of healing our cultural dyslexia is partly cognitive, in and through this paper we have tried to enact the experiential aspect. We may approach the entrances of the borderlands through reading and thinking, however we believe that the borderlands is a phenomenon of living, a phenomenon of well-intentioned people interacting in deliberate and thoughtful ways with those who are simultaneously like and unlike us/them. The borderlands require that we bring our critical faculties to bear on life's experiences, but, more often than not, we must suspend them in favor of more charitable and affiliative …

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 …

Beyond Self–Interest: Asian Pacific Americans Toward A Community Of Justice, Frank H. Wu

Faculty Scholarship

No abstract provided.

Race Law And Justice: The Rehnquist Court And The American Dilemma,, Frank H. Wu

Faculty Scholarship

No abstract provided.

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 …