Law and Race Commons^™

Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff

Michigan Law Review

This article attempts to provide an analytic framework for the evolved voting rights law as it confronts the persistent effects of racial factionalism in the electoral arena. Insight into the corrosiveness of racially polarized voting and its frustration of minority electoral opportunity has organized and guided the new voting rights jurisprudence. This article will argue that the combination of process distortions from majority domination of electoral outcomes and substantive deprivation from minority exclusion defines this area of law and protects it against challenge from currently fashionable academic currents. The central insights gathered from the focus on polarized voting, I will …

Remedies For Environmental Racism: A View From The Field, Luke W. Cole

Michigan Law Review

The Michigan Law Review's recent Note, Remedying Environmental Racism, is an important and timely analysis of a civil rights law-based approach to environmental justice work - one of the first to emerge from legal academia. It correctly points out the high hurdles that toxic racism's victims must overcome to successfully pursue such a strategy. Godsil's piece will hopefully spur more academic and on-the-ground work in this nascent legal field, which I call "environmental poverty law" - that is, representing low-income communities (often, in this field, communities of color) facing environmental hazards. As a practitioner of environmental poverty law …

Murdering The Spirit: Racism, Rights, And Commerce, Robin West

Michigan Law Review

A Review of The Alchemy of Race and Rights: The Diary of a Law Professor by Patricia L. Williams

Illiberal Education: The Politics Of Race And Sex On Campus, Bruce Goldner

Michigan Law Review

A Review of Illiberal Education: The Politics of Race and Sex on Campus by Dinesh D'Souza

Whose World And How?, Milner S. Ball

Michigan Law Review

A Review of Rethinking the American Race Problem by Roy L. Brooks

Remedying Environmental Racism, Rachel D. Godsil

Michigan Law Review

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of …

An Interpretive History Of Modern Equal Protection, Michael Klarman

Michigan Law Review

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By "modem" I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By "limited" I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, …

The Challenges Of Multiplicity, Jennifer Nedelsky

Michigan Law Review

A Review of Inessential Woman: Problems of Exclusion in Feminist Thought by Elizabeth V. Spelman

Affirmative Action As A Majoritarian Device: Or, Do You Really Want To Be A Role Model?, Richard Delgado

Michigan Law Review

Have you ever noticed how affirmative action occupies a place in our system of law and politics far out of proportion to its effects in the real world? Liberals love talking about and sitting on committees that define, oversee, defend, and give shape to it. Conservatives are attached to the concept for different reasons: they can rail against it, declare it lacking in virtue and principle, and use it to rally the troops. Affirmative action is something they love to hate. The program also generates a great deal of paper, conversation, and jobs probably more of the latter for persons …

The Triumph Of Tokenism: The Voting Rights Act And The Theory Of Black Electoral Success, Lani Guinier

Michigan Law Review

In this article, my goal is to organize the divergent themes of black electoral success strategy within one conceptual framework in order to give the themes more cogency and attention. Having exposed the existence of a coherent theory, I then argue that the theory posits many of the correct goals but fails to provide a realistic mechanism for achieving them. The article proceeds in three Parts. In Part I, I develop the ideological and statutory roots of black electoral success theory. In Part II, I analyze the inadequacies of current voting rights litigation and its failure to realize the statute's …

Voting Rights Act Section 2: Racially Polarized Voting And The Minority Community's Representative Of Choice, Evelyn Elayne Shockley

Michigan Law Review

A much needed congressional effort to give substance to African-American suffrage resulted in the enactment of the Voting Rights Act of 1965 (the Act). Although the fifteenth amendment gave African-American men the right to vote in 1870, almost a hundred years later they were still largely unable to exercise the right. This condition did not result from apathy on the part of African-American voters, but rather from their inability to overcome barriers set up by white racists. Practices whites instituted, such as "[l]iteracy and 'understanding' tests, poll taxes, the white primary, intimidation, [and] violence," prevented African-Americans from realizing their constitutional …

Pure Politics, Girardeau A. Spann

Michigan Law Review

Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …

Meanness As Racial Ideology, Derrick Bell

Michigan Law Review

A Review of The Port Chicago Mutiny: The Story of the Largest Mutiny Trial in U.S. History by Robert L. Allen

The Obliging Shell: An Informal Essay On Formal Equal Opportunity, Patricia Williams

Michigan Law Review

I am struck by the Court's use of the word "equality" in the last line of its holding. It seems an extraordinarily narrow use of "equality," when it excludes from consideration so much clear inequality. It, again, resembles the process by which the Parol Evidence Rule limits the meaning of documents or words by placing beyond the bounds of reference anything that is inconsistent, or, depending on the circumstances, even that which is supplementary. It is this lawyerly language game of exclusion and omission that is the subject of the rest of this essay.

Difference Made Legal: The Court And Dr. King, David Luban

Michigan Law Review

My aim in this essay is to contrast two legal retellings of the same event: a set of demonstrations sponsored by the Southern Christian Leadership Conference in Birmingham, Alabama in 1963 that led to the arrest and incarceration of Martin Luther King, Jr. One is the Supreme Court majority opinion in Walker v. City of Birmingham, sustaining King's conviction; the other, King's own defense of his actions in his Letter from Birmingham Jail I wish to show how the self-same event entails radically different legal consequences when it appears in different narratives, one the Supreme Court's official voice, the …

Public Response To Racist Speech: Considering The Victim's Story, Mari J. Matsuda

Michigan Law Review

The threat of hate groups like the Ku Klux Klan and the neo-Nazi skinheads goes beyond their repeated acts of illegal violence. Their presence and the active dissemination of racist propaganda means that citizens are denied personal security and liberty as they go about their daily lives. Professor Richard Delgado recognized the harm of racist speech in his breakthrough article, Words That Wound, in which he suggested a tort remedy for injury from racist words. This Article takes inspiration from Professor Delgado's position, and makes the further suggestion that formal criminal and administrative sanction - public as opposed to private …

The Final Report: Harvard's Affirmative Action Allegory, Derrick Bell

Michigan Law Review

Harvard's affirmative action allegory written for this symposium.

Decoding Richmond: Affirmative Action And The Elusive Meaning Of Constitutional Equality, Michel Rosenfeld

Michigan Law Review

This Article first briefly considers the conceptual and constitutional framework out of which the controversy in Croson emerges. Next, the Article turns to Croson itself, and focuses on the Court's adoption of the strict scrutiny test, on the disagreement among the Justices concerning the test's meaning and implications, and on the Court's use of decontextualization to manipulate the key conceptual and factual issues at stake. Finally, drawing upon the principle of equality of opportunity, the Article endeavors to demonstrate how the adoption of particular principles of substantive equality can lead to a comprehensive and coherent constitutional resolution of the affirmative …

Finding A "Manifest Imbalance": The Case For A Unified Statistical Test For Voluntary Affirmative Action Under Title Vii, David D. Meyer

Michigan Law Review

This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the …

The Plessy Case: A Legal-Historical Interpretation, David D. Meyer

Michigan Law Review

A Review of The Plessy Case: A Legal-Historical Interpretation by Charles A. Lofgren

The Politics Of Victimization Makes Strange Bedfellows, Jennifer L. Hochschild

Michigan Law Review

A Review of The Civil Rights Society: The Social Construction of Victims by Kristin Bumiller, and Plural But Equal: Blacks and Minorities in America's Plural Society by Harold Cruse

Protection Of Civil Rights: A Constitutional Mandate For The Federal Government, Julius Chambers

Michigan Law Review

A Review of Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South by Michal Belknap

Legislative Inaction And The Patterson Case, Earl M. Maltz

Michigan Law Review

In its October 1988 issue,1 the Michigan Law Review published a symposium on Patterson v. McLean Credit Union, a case in which the Supreme Court has requested reargument on the question of whether Runyon v. McCrary should be overruled or modified. Each of the three distinguished contributors to the symposium concludes that the Court should not overrule Runyon. In reaching this conclusion, Professor William N. Eskridge and Professor Daniel A. Farber rely heavily on the view that because Congress has recognized the existence of the Runyon doctrine and has refused to overrule the decision, the doctrine of stare decisis …

Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …

Interpreting Legislative Inaction, William N. Eskridge Jr.

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …

And We Are Not Saved: The Elusive Quest For Racial Justice, Kevin Edward Kennedy

Michigan Law Review

A Review of And We Are Not Saved: The Elusive Quest for Racial Justice by Derrick A. Bell

The Naacp's Legal Strategy Against Segregated Education, Robert L. Carter

Michigan Law Review

A Review of The NAACP's Legal Strategy Against Segregated Education, 1925-1950 by Mark Tushnet

The Politics Of Predicting Criminal Violence, Sheri Lynn Johnson

Michigan Law Review

A Review of The Prediction of Criminal Violence by Fernand N. Dutile and Cleon H. Foust

The 1986 And 1987 Affirmative Action Cases: It's All Over But The Shouting, Herman Schwartz

Michigan Law Review

For the moment, the affirmative action wars are over. In a ten-year set of decisions, culminating in five during the last two terms, the Court has now legitimated almost all types of race and gender preferences, even if they benefit nonvictims, including voluntarily adopted preferences in hiring, promotion, university admissions, and government contracting; hiring and promotion preferences in consent decrees; and court-ordered hiring and promotions. It has approved preferences by both public and private bodies, and for both racial-ethnic minorities and women. It has barred only layoffs of white (and presumably male) employees who have more seniority than employees hired …

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …