Law and Race Commons^™

The More Things Change . . . : Exploring Solutions To Persisting Discrimination In Legal Academia, Melissa Hart

Publications

No abstract provided.

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Faculty Scholarship

Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same.

Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, …

Wrongful Confictions And Due Process Violations, Cheryl Page

Journal Publications

This analytical essay looks at the myriad of ways innocent people are wrongfully convicted and how the criminal justice system fails to truly reach a fair and equitable result. The article looks at how at the initial stages of a criminal proceeding, a defendant can be prejudiced to the point of sufficient harm to his chances at being given a fair and impartial judicial proceeding. This article examines how fatal mistakes can be made and reveals that there can be flaws in the science of DNA testing, including fraud, criminologist bias, improper laboratory procedures, and human error. This article seeks …

Professional Women Silenced By Men-Made Norms, Maritza I. Reyes

Journal Publications

The call of this symposium was for articles regarding women's rights and the movement toward equality. We are still wrestling with what equality should mean. In this Article, when I refer to equality I envision it as both a strategy and as the end goal. Equality as a strategy means assessing the inherent inequalities of particular situations and using the means necessary to remedy the inequalities and achieve equality as the end goal. The end goal is for women (with all our complexities and intersectionalities) to achieve the same rights and results as men (with all their complexities and intersectionalities) …

Hidden Racial Bias: Why We Need To Talk With Jurors About Ferguson, Patrick C. Brayer

Faculty Works

Issues of race frame our national identity and define our capacity to achieve true equality for all individuals. By its very nature and traditions, the law is a profession tasked with confronting inequality and discrimination in our society. As issues of race continue to influence our communities, nation, and world, the legal profession will be charged with leading future discussions on how prejudice and bias affect our clients. Unfortunately, as legal professionals, we still struggle with the question of whether to talk about race in voir dire. This essay discusses our obligation as judges, academics, and practitioners to understand how …

Children's Interests: An Annotated Bibliography, 2013-2015, Nancy Levit

Faculty Works

No abstract provided.

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

After The Hurricane: The Legacy Of The Rubin Carter Case, Judith L. Ritter

UC Law Journal of Race and Economic Justice

Rubin "Hurricane" Carter died in the spring of 2014 at the age of seventy-six. He was a top middleweight boxing contender in the early 1960s, twice convicted of a triple homicide, but then freed by a federal court in 1985 after he served nineteen years in prison. This Article recalls his life, the homicide trials, and the constitutional issues that led to his release. The Article makes the point that had Rubin Carter's federal habeas corpus petition been adjudicated under current law, he would have remained behind bars. Congress enacted the Antiterrorism and Effective Death Penalty Act in 1996. The …

Can Local Governments Provide Protection To Vulnerable Communities In California A State Which Has Legalized Predatory Payday Lending And Failed To Pass Reform, Krista R. Granen

UC Law Journal of Race and Economic Justice

The payday lending industry provides small dollar loans to persons across the United States. Although their product is marketed as temporary, the majority of borrowers cannot repay the underlying amount and exorbitant interest rates within the deceptively advertised time period. As a result, most borrowers remain indebted to payday lenders for approximately half of the year and must forgo basic necessities in order to extricate themselves from payday debt. This Note seeks to clarify the mechanics of payday lending, provide the surrounding historical and legal context, and explain the industry's especially negative impact on low-income and minority communities in California. …

Effectively Implementing Civilian Oversight Boards To Ensure Police Accountability And Strengthen Police-Community Relations, Kevin King

UC Law Journal of Race and Economic Justice

The recent killings of Michael Brown and Eric Garner have reignited the debate over curbing police misconduct. Due to United States Supreme Court jurisprudence and the quality of internal affairs investigations there continues to be a void in police oversight. Local governments are often reactive, instead of proactive, when implementing strategies for overseeing police misconduct. On several occasions civilian oversight boards have only formed in reaction to tragic death. When implemented effectively, civilian oversight boards can both help create just police practices and better the civilian complaint process. Unfortunately, some of these boards fail to develop into more than symbols …

Ferguson To Geneva: Using The Human Rights Framework To Push Forward A Vision For Racial Justice In The United States After Ferguson, Justin Hansford, Meena Jagannath

UC Law Journal of Race and Economic Justice

As demonstrations under the banner of #BlackLivesMatter continue to erupt around the United States against state-sponsored violence, and as state, local, and federal officials continue to eschew fundamental social change, families and protesters have begun to explore alternative international forums in the search for justice. The Ferguson to Geneva delegation represents a significant event in this internationalist turn. The delegation, consisting of the parents of Mike Brown, Jr. and young Black leaders from Ferguson, chose to air their grievances before the United Nations Committee Against Torture in the fall of 2014. This article reproduces the delegation's "shadow report," which laid …

Talking Israel And Palestine On Campus: How The U.S. Department Of Education Can Uphold The Civil Rights Act And The First Amendment, Yaman Salahi, Nasrina Bargzie

UC Law Journal of Race and Economic Justice

A rise in scholarly discussion and campus activism about Israel and Palestine has prompted a wave of civil rights complaints that raise important legal questions under the First Amendment and Title VI of the Civil Rights Act of 1964. This Article reviews the U.S. Department of Education's handling of such complaints focused on traditional forms of constitutionally-protected expression, like nonviolent protest, academic panels, film screenings, pamphlets, and flyers. The Article rejects the central premise of these complaints: that students suffer from a hostile educational environment in violation of their civil rights when a particular country or government with which they …

How Police Brutality Harms Mothers: Linking Police Violence To The Reproductive Justice Movement, Arneta Rogers

UC Law Journal of Race and Economic Justice

The recent and highly publicized killing of Michael Brown, an unarmed 18-year-old African American and the subsequent grand jury decision not to indict Darren Wilson, the Ferguson, Missouri police officer who killed him, evoked mass social protest, and highly emotional and politically charged social commentary on the racialized effects of police brutality. While the crisis of systemic police violence has historically centered on the harm inflicted on victims of police brutality and, more generally, on the communities where they are from, an agitated group of feminist scholars and reproductive justice advocates have offered a more nuanced appraisal of the harm …

Exonerated, But Not Free: The Prolonged Struggle For A Second Chance At A Stolen Life, Newton N. Knowles

UC Law Journal of Race and Economic Justice

It is impossible to imagine being accused of a crime you did not commit. Worse, it is even harder to imagine a jury sentencing you to death or to life in prison when you know you are innocent. Since the rise of DNA evidence, the criminal justice system has been stunned by the newly exposed cases of wrongful conviction. Sadly, in most cases innocent exonerees are released with nothing more than an apology, if even that. Postexoneration compensation varies drastically among the several states and reentry resources are even more scarce or unavailable. Each compensation scheme on its own, however, …

Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins

UC Law Journal of Race and Economic Justice

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 has led to considerable litigation on the rights of immigrants to healthcare and welfare benefits. There is significant divergence between the approaches adopted by different courts (both federal and state). This divergence is based, in part, on the different statutory schemes involved, as well as different approaches to Equal Protection. However, none of the cases have reached the United States Supreme Court, so the "correct" approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants, residing in the country …

Supporting Social Movements: A Brief Guide For Lawyers And Law Students, Jim Freeman

UC Law Journal of Race and Economic Justice

In recent years, there has been a surge in grassroots organizing and activism, creating new possibilities for advancing social, racial, gender, and economic justice. As a result, lawyers now have a rare opportunity to help create powerful and sustainable social movements by supporting, strengthening, and amplifying these on-the-ground efforts. However, there is a long history of would-be "movement lawyers" who have inadvertently undermined many promising grassroots-led initiatives. This article summarizes, from a practitioner's perspective, the essential elements of effective movement lawyering and how they can help to avoid the mistakes of the past and promote transformative social change.

Identity Property: Protecting The New Ip In A Race-Relevant World, Philip Lee

Faculty Publications

(Excerpt)

This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law—i.e., through a process of socio-legal construction—in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development …

Reducing Racial And Ethnic Disparities In Jails: Recommendations For Local Practice, Jessica M. Eaglin, Danyelle Solomon

Books & Book Chapters by Maurer Faculty

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial …

Litigating Against The Civil Rights Movement, Christopher W. Schmidt

University of Colorado Law Review

No abstract provided.

A Lawyer Looks At Civil Disobedience: Why Lewis F. Powell Jr. Divorced Diversity From Affirmative Action, Anders Walker

University of Colorado Law Review

This Article reconstructs Lewis F. Powell Jr.'s thoughts on the civil rights movement by focusing on a series of littleknown speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King Jr. Convinced that the law had done all it could for blacks, Powell took issue with King's "Letter from Birmingham Jail," impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Michigan Journal of Race and Law

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply …

Good Faith Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court's current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court's racial jurisprudence stem from the Court's willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.

Welcome To The Village: An Analysis Of How St. Louis County Occupancy Permit Schemes Perpetuate Segregation And Violate The Constitution, Zachary Schmook, Lauren Verseman

Publications

No abstract provided.

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Publications

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

Toward A Structural Theory Of Implicit Racial And Ethnic Bias In Health Care, Dayna Bowen Matthew

Publications

No abstract provided.

No Reason To Blame Liberals (Or, The Unbearable Lightness Of Perversity Arguments), Margo Schlanger

Reviews

In addition to the current extraordinary number of people behind American bars, the other key feature of our current carceral state is the very high concentration of non-whites in that population. That concentration of non-whites has grown significantly since the 1960s, when whites constituted nearly two thirds of American prison population; today, they are only a bit over one-third. Since 72% of Americans are white, the distinction in terms of incarceration rate is far more stark: among white men, the current imprisonment rate (counting only sentenced prisoners) is 4.7/1000; among Latino men it is two-and-a-half times that (11.3/1000); and among …