Law and Race Commons^™

Review Of Encountering Revolution: Haiti And The Making Of The Early Republic By Ashli White, Jonathon J. Booth

Publications

No abstract provided.

Review Of To Render Invisible: Jim Crow And Public Life In New South Jacksonville By Robert Cassanello, Jonathon J. Booth

Publications

No abstract provided.

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

Publications

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …

Health Care, Title Vi, And Racism's New Normal, Dayna Bowen Matthew

Publications

No abstract provided.

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

The Breach Of The Common Law Trust Relationship Between The United States And African Americans – A Substantive Right To Reparations, Ayesha Bell Hardaway

Faculty Publications

Domination and elaborate control of Africans in colonial America, and later the United States, were exerted to provide the requisite framework for the economically profitable Trans-Atlantic slave trade. Proponents of slavery characterized the aims of slavery in pseudo-paternalistic terms to “train” and “civilize[e] the untutored savage.” Even after the formal end of slavery, the U.S. and local governments continued to exercise its domination and elaborate control by enforcing a national system of racial segregation and discrimination. That system of government-sanctioned laws was so pervasive and commonly accepted that it has been personified as “Jim Crow.” As a result, racial hierarchy …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel, Maritza I. Reyes

Journal Publications

No abstract provided.

Opening Borders: African Americans And Latinos Through The Lens Of Immigration, Maritza I. Reyes

Journal Publications

African-American and Latino voter turnout during the 2008 and 2012 presidential elections hit record numbers. Polls show that the immigration debate influenced Latino voter turnout and preference. Presidential candidate Barack Obama's voiced support of comprehensive immigration reform strengthened his lead among Latino voters in 2008 and, once in office, his executive policy of granting temporary protection to DREAMers solidified his lead among Latino voters in 2012. Both elections showed the power that minority groups can exert when they vote in support of the candidate. If the demographic changes continue as currently estimated, African Americans and Latinos will contribute in large …

Race And The Reference Librarian, Mary Whisner

Librarians' Articles

Ms. Whisner examines how race arises in the day-to-day work of law librarians, and discusses how law librarians can foster cultural competence and create more welcoming environments in diverse institutions.

Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson

University of Michigan Journal of Law Reform

Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

The discourse in America about segregation is dishonest. On the surface, we pretend that the values of Brown v. Board of Education have been met, although most of us know in our hearts that the current system of public education betrays those values. In this essay, I reflect on how residual, defacto segregation and the stratified architecture of opportunity in our nation contribute to the achievement gap that has made race-based affirmative action necessary. Despite the Supreme Court's compromise decision in Fisher v. Texas, affirmative action is on life support. As this essay goes to print, the Supreme Court has …

Sentenced To Die In Prison: Life Without Parole As An Eighth Amendment Violation For All Juveniles And Especially Those Who Have Not Killed, Morgan S. Mcginnis

UC Law Journal of Race and Economic Justice

Over the last decade, the Supreme Court of the United States has delivered a series of rulings establishing that juvenile offenders are to have their criminal sentences considered differently from that of adults. Over this span of time, the Court established that it is unconstitutional to sentence a juvenile to the death penalty in any scenario, as well as to life without parole for non-homicide crimes. In the 2012 case of Miller v. Alabama, the Court extended this line of reasoning by declaring that even for juveniles who commit homicides, life without parole may not be imposed as part of …

Forced Evictions, Mass Displacement, And The Uncertain Promise Of Land And Property Restitution In Haiti, Greger B. Calhan

UC Law Journal of Race and Economic Justice

Haiti's devastating 2010 earthquake produced human suffering on an unimaginable scale. The disaster's aftermath-marked by widespread displacement, secondary occupation of land, and consequent forced evictions-raises critical questions of land ownership and housing rights. It also provided a testing ground for the body of restitutionary legal norms developed in the decades following the Cold War. Using the earthquake in Haiti as a lens, this article critically examines the development of the restitution model, from its inception in the Balkans conflicts of the 1990s to its current expression in the United Nation's Pinheiro Principles. While the Pinheiro Principles are positive in many …

No To Bratton: A Rejection Of Stop And Frisk, And A Call For Progressive Reform In Oakland, Robert S. Greer Jr.

UC Law Journal of Race and Economic Justice

On January 23, 2012, the City of Oakland voted to retain the services of William Bratton, former police chief of both New York and Los Angeles, as a consultant to the Oakland Police Department. Oakland Community members reacted with concern and resistance to the City's decision, largely due to Bratton's promotion of aggressive stop and frisk search techniques. This note provides an analysis of Bratton's appointment in light of the Oakland Police Department's egregious history of constitutional violations and misconduct charges. Additionally, this note explores the empirical and theoretical flaws underpinning aggressive stop and frisk policies, and demonstrates why adopting …

Lessons From Mt. Holly: Leading Scholars Demonstrate Need For Disparate Impact Standard To Combat Implicit Bias, Equal Justice Society, Wilson Sonsini Goodrich & Rosati

UC Law Journal of Race and Economic Justice

In 2013, the United States Supreme Court was set to hear oral arguments in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. However, weeks before the hearing, the parties settled. Despite the settlement, the arguments raised by plaintiffs and amici remain valuable. Mt. Holly represented the second time in two years that the Supreme Court granted certiorari to decide whether the Fair Housing Act of 1968 ("FHA") allows plaintiffs to bring claims challenging official housing decisions and policies that are not necessarily the result of intentional discrimination, but have a disproportionately harmful impact on minorities or other groups …

What Is Still Radical In The Antislavery Legal Practice Of Salmon P. Chase, Matthew A. Axtell

UC Law Journal of Race and Economic Justice

This Article is an in-depth study of the early commercial law career of Salmon P. Chase, U.S. Secretary of Treasury between 1861 and 1864 and President Abraham Lincoln's choice to replace Roger B. Taney (author of the Dred Scott opinion) as the Chief Justice of the U.S. Supreme Court. Occasionally portrayed in his latter political career as "the most radical" member of Lincoln's war cabinet, Chase's early law practice is best known for its defense of people of color seeking to escape slavery, at the time earning him the nickname as the "Attorney General for Fugitive Slaves." In recent years, …

Illegal Reentry And Denial Of Bail To Undocumented Defendants: Unjust Tools For Social Control Of Undocumented Latino Immigrants, Patrick Kirby Madden

UC Law Journal of Race and Economic Justice

Historical, structural, statistical, and constitutional context is elemental to a proper understanding of the true purpose and effect of a criminal statute and its execution. Illegal Reentry, 8 U.S.C. § 1326, may seem like a basic rule to deter potential criminals from entering the United States. A prosecutor's argument that a defendant must be detained prior to trial due to the possibility of Immigration and Customs Enforcement removing the defendant may seem like a logical argument. However, once these actions are viewed in the succession of events that constitutes the history of undocumented Latino immigrants in the United States, are …

How Mainstream Reformers Design Ambitious Reentry Programs Doomed To Fail And Destined To Reinforce Targeted Mass Incarceration And Social Control, Gerald P. Lopez

UC Law Journal of Race and Economic Justice

The most influential publication on how to design and implement comprehensive and effective reentry programs is the 2005 REPORT OF THE REENTRY POLICY COUNCIL, produced by the bipartisan Council of State Governments (CSG). Triggered by the disturbingly high price of the reigning criminal justice system, and aiming to reduce costs and enhance safety, the REPORT manages both to champion an ambitious approach and to doom its chances of success. Perhaps this effect can be described as predictable and even intentional, especially given the overlapping interests of the elected and appointed officials (and the staffers and collaborators) who comprise CSG. But …

The Real Id Act: Proposed Amendments For Credibility Determinations, Linda Lam

UC Law Journal of Race and Economic Justice

United States refugee law governs asylum applicants and therefore plays a critical role in shaping the American population. Asylum officers and immigration judges' credibility assessments often dictate whether asylum applications are granted. The REAL ID Act of 2005, a series of statutes passed by Congress to aid the fight against terrorism, changed the standard for rendering credibility determinations. It allows triers of fact-asylum officers and immigration judges-to base adverse credibility decisions on immateral inconsistencies in an asylum applicant's story. These minor inconsistencies often arise from cultural differences or trauma stemming from the applicant's past experiences. This note addresses the inherent …

Forget Sentencing Equality: Moving From The “Cracked” Cocaine Debate Toward Particular Purpose Sentencing, Jelani Jefferson Exum

Faculty Publications

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal. This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment. Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan Carle

Scholarly Articles in Law Reviews & Journals

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)-namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites …

From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric

Michigan Journal of Race and Law

Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …

It's Critical: Legal Participatory Action Research, Emily M.S. Houh, Kristin Kalsen

Michigan Journal of Race and Law

This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, …

Life And Legal Fiction: Reflections On Margaret Montoya's Máscaras, Trenzas, Y Greñas, Natsu Taylor Saito

Faculty Publications By Year

This essay is based on a presentation made as part of “Un/Masking Power: The Past, Present, and Future of Marginal Identities in Legal Academia,” a symposium sponsored by the UCLA Chicana/o-Latina/o Law Review, April 5, 2013.

Roll Back "Prison Nation", Donna Coker

Articles

No abstract provided.

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

The Legacy Of Stop And Frisk: Addressing The Vestiges Of A Violent Police Culture, Kami Chavis Simmons

Faculty Publications

For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed.

While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. …