Law and Race Commons^™

False Conflict: Colorblindness And Section 2 Of The Voting Rights Act, W. Kerrel Murray

Fordham Law Review

If friends and foes of section 2 of the Voting Rights Act of 1965 agree on one thing, it is the irrepressible conflict between section 2’s attention to race and constitutional colorblindness. They’re wrong. Rightly understood, section 2’s design is remarkably compatible with colorblind constitutionalism’s letter and spirit.

To show how, this Article first returns to section 2’s origins and the preexisting approach its text codifies. That approach had an underappreciated ethos: When intentional discrimination’s effects sufficiently distort a political system, an electoral rule’s results might impugn its unconstitutionality, even if the rule had been adopted without discriminatory purpose. Drawing …

Antitrust, Vampires And Bloody Acquisitions, Theodosia Stavroulaki

Fordham Law Review

Private equity has rapidly seized control of large swaths of the U.S. healthcare system. This Essay argues that its takeover is not a story of efficiency or innovation but one of extraction. Drawing on a substantial body of research, it shows that private equity acquisitions are associated with rising healthcare costs, inferior care, reduced access to essential services, and deteriorating working conditions for physicians and nurses—harms that fall most heavily on marginalized communities.

These outcomes are not accidental. They stem from the private equity business model, which relies on leveraged buyouts, aggressive cost cutting, and roll-up strategies designed to generate …

Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

“No Further Discussion Necessary”: Compliance As Professionalism In Legal Education, Sarah J. Schendel

Fordham Law Review

No abstract provided.

"In Better Times": The Basis Of Representation And The Forgotten History Of The Fourteenth Amendment, Jessica I. Gorovitz

Fordham Law Review

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states …

Equality In Sentencing Mitigation, John B. Meixner Jr.

Fordham Law Review

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence. Past empirical research—both experimental and in real-world cases—indicates that mitigation plays an important role in determining sentences. But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure? Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier White defendants with private attorneys? Do …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

The Conversation Continues: The Judiciary’S Evolving Role In Perpetuating Racial Disparities In Addiction Treatment, Sydney Crute

Fordham Law Review

Language is a powerful means of social control, an idea that resonates deeply with court rhetoric as it relates to race. This Note examines the language courts use when discussing cases related to drug use and addiction. During the crack epidemic, when Black individuals represented the race of the primary drug user and drug dealer, courts relied on racially coded language related to crime and fear. Alternatively, during the opioid epidemic, when White individuals represented the race of the primary drug user, courts relied on more neutral language related to the health and well-being of society. Finally, the language courts …

Doing Justice With Empathy: Black Prosecutors In The Age Of Mass Incarceration, Kevin Woodson

Fordham Law Review

No abstract provided.

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

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

Fordham Law Review

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 …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

De Jure Separate And Unequal Treatment Of The People Of Puerto Rico And The U.S. Territories, Natalie Gomez-Velez

Fordham Law Review

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past. Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well. Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United …

“Kung Flu”: A History Of Hostility And Violence Against Asian Americans, Denny Chin, Kathy Hirata Chin

Fordham Law Review

The COVID-19 pandemic “first became real” for most Americans in March 2020. Since then,a wave of anti-Asian hatred and violence has swept the country, as more than 10,000 “hate incidents” have been reported against Asian Americans and Pacific Islanders (AAPIs), including the 2021 killing of six Asian American women in the Atlanta area. The videos of senseless attacks against AAPIs, many of whom were older and vulnerable, were horrific and disturbing. But what is perhaps more disturbing is that this is nothing new, for there is a long history of hostility and violence against Asian Americans in this country, a …

The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii

Fordham Law Review

The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …

Dedication: Center On Asian Americans And The Law, Kamala Harris

Fordham Law Review

Asian American history has been defined by attorneys and activists who have fought to ensure that Asian Americans are recognized as Americans— not as the “other,” not as “them,” but as “us.” From their efforts to fight against the Chinese Exclusion Act, to correcting the wrongs of the Japanese-American incarceration, it is essential that we learn about the role of Asian Americans and the law. Accordingly, I write to recognize the historic launch of the Center on Asian Americans and the Law at Fordham University School of Law—the first of its kind in the country. Its founding is both timely …

Enemy And Ally: Religion In Loving V. Virginia And Beyond, Leora F. Eisenstadt

Fordham Law Review

Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. Although these views are no longer mainstream, they have recently appeared again in arguments against same-sex marriage and gay and transgender rights generally. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. …

Loving’S Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray

Fordham Law Review

2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, …

Fear Of A Multiracial Planet: Loving’S Children And The Genocide Of The White Race, Reginald Oh

Fordham Law Review

Part I analyzes the Loving decision striking down antimiscegenation laws and examines the segregationists’ justifications for antimiscegenation laws. Next, Part II explores the historical opposition of white segregationists to interracial marriages, families, and children and argues that the principle and practice of endogamy is a central feature of Jim Crow segregation. Finally, Part III examines the present ideology of white nationalism and shows that white nationalists oppose interracial unions and families for some of the same reasons that white segregationists opposed them. Specifically, white nationalists oppose interracial families because they are one of the main factors contributing to the so-called …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

Fordham Law Review

This Essay reconsiders or reaffirms the Lovings’ status as civil rights icons by drawing on source material provided by the documentary The Loving Story. This nonfiction treatment of the couple and their lawsuit reveals their complexity as individuals and as a couple, the social relationships that made them desperate to live together and raise their children in Virginia, and the oppression they suffered at the hands of state actors motivated by a virulent white supremacy to make the Lovings’ desire to make a home for themselves in the state impossible. Part I briefly describes the Lovings’ struggle against Virginia’s Racial …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks

Fordham Law Review

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only ongovernment “racial” definitions. Multiracial individuals should enjoy thefreedom to self-identify as they wish—and, like others, be afforded theprotections of antidiscrimination law.The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial …

The Hope Of Loving And Warping Racial Progress Narratives, Jasmine Mitchell

Fordham Law Review

Loving v. Virginia has been heralded as the catalyst for a “biracial baby boom.” Loving marked the end of the criminalization of miscegenation between nonwhite and white individuals and the automatic illegitimacy of mixed-race children in many states, and it heralded the beginning of the celebration of interracial families as part of a new multiracial, and eventual postracial, era. The construction of whiteness has been tied to the management of interracial sex and marriage, and Loving razed antimiscegenation laws that, in former Chief Justice Earl Warren’s words, had been “designed to maintain White Supremacy.” Today, the media relies on demographic …

Race And Assisted Reproduction: Implications For Population Health, Aziza Ahmed

Fordham Law Review

This Article emerges from Fordham Law Review’s Symposium on the fiftieth anniversary of Loving v. Virginia, the case that found antimiscegenation laws unconstitutional. Inspired by the need to interrogate the regulation of race in the context of family, this Article examines the diffuse regulatory environment around assisted reproductive technology (ART) that shapes procreative decisions and the inequalities that these decisions may engender. ART both centers biology and raises questions about how we imagine our racial futures in the context of family, community, and nation. Importantly, ART demonstrates how both the state and private actors shape family formation along racial lines. …

Lgbt Equality And Sexual Racism, Russell K. Robinson, David M. Frost

Fordham Law Review

Bigots such as the trial judge in Loving have long invoked religion to justify discrimination. We agree with other scholars that neither religion nor artistic freedom justifies letting businesses discriminate. However, we also want to make manifest the tension between the public posture of LGBT-rights litigants and the practices of some LGBT people who discriminate based on race in selecting partners. We argue that some white people’s aversion to dating and forming relationships with people of color is a form of racism, and this sexual racism is inconsistent with the spirit of Loving. Part I provides a review of empirical …

Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin Brown

Fordham Law Review

I served on the panel entitled “The Children of Loving,” which for me has two connotations. First, as an African American who married a white woman twenty years after the decision, I am a child of Loving in the sense that I was in an interracial marriage. But as a father of two black-white biracial children, I am also a father of two Lovingchildren. In this Article, I focus on the latter connotation of the “Children of Loving.” In particular, I discuss the evolution of my children’s racial identities. Due to my personal connections, I can share both an academic …

More Than Love: Eugenics And The Future Of Loving V. Virginia, Osagie K. Obasogie

Fordham Law Review

This Symposium is dedicated to celebrating how Loving v. Virginia paved the way for greater acceptance of multiracial families and interracial intimacy. Loving is largely understood as a case that rejected the bigotry and hatred experienced by interracial couples and affirmed the idea that law supports love across racial lines. With this narrative comes the popular understanding that Loving stands for the notion that love conquers all. This idea has shaped other legal strategies and social movements, such as the effort to have same-sex marriage legally recognized. Thus, Loving is thought of as drawing attention to the importance of romantic …

Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile

Fordham Law Review

This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …

When A Wrongful Birth Claim May Not Be Wrong: Race, Inequality, And The Cost Of Blackness, Kimani Paul-Emile

Fordham Law Review

The year 2017 marked the fiftieth anniversary of the Loving v. Virginia decision, in which a unanimous U.S. Supreme Court struck down as unconstitutional laws prohibiting interracial marriage. Today, when we consider interracial loving, we tend to envision romantic relationships. What is often overlooked, however, is the relationship between parent and child: among the most intimate of relationships. A primary reason for this oversight may be that we do not often conceptualize the parent and child relationship as an interracial space. Indeed, although most people select their romantic partners, few are afforded the opportunity to select their children outside of …

“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres

Fordham Law Review

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …