Law and Race Commons^™

Policing And "Bluelining", Aya Gruber

Publications

In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about …

Pandemic Emotions: The Good, The Bad, And The Unconscious —Implications For Public Health, Financial Economics, Law, And Leadership, Peter H. Huang

Publications

Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and …

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan, David Takacs

Publications

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

Publications

10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

It's About Bloody Time And Space, Lolita Buckner Inniss

Publications

Time frames relationships of power, especially in the context of law. One of the clearest ways in which time is implicated in both law and society is via discourses about women’s biological functions. This Article is an introduction to a larger project that analyzes legal discourses regarding a crucial aspect of women’s calendrically-associated biological functions: women’s menstrual periods. Over the course of the project, I explore legal discourses about menstruation through the notion of what literary theorist Mikhail Bakhtin calls “chronotopes”—a connectedness of temporal and spatial relationships. Temporality, Bakhtin argues, is closely associated with certain paradigmatic spaces, and the combination …

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

Publications

People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

Race-Conscious Jury Selection, Anna Offit

Faculty Publications

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This …

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Seattle University Law Review

One only has to turn on the television or read the newspaper to see news story after news story reporting instances of women facing harassment, discrimination, or assault while at work. The “Me Too” and “Time’s Up” campaigns have brought many of these issues to the forefront and have shown that women are fighting to be respected and demanding equal treatment. Although this fight for equal protection is ongoing, many women, such as those in lower-paying service industries, are still unable to protect themselves from sexual harassment, discrimination, and assault, as they do not have the support or power to …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

The Confusion Of Mcdonnell Douglas: A Path Forward For Reverse Discrimination Claims, Christian Joshua Myers

Seattle University Law Review

It is no secret that Title VII of the Civil Rights Act of 1964 is one of the most significant pieces of legislation ever passed by the United States Congress. Fiercely debated and enacted during the Civil Rights Movement of the 1960s, Title VII prohibits employers from engaging in various forms of discrimination within the workplace. For instance, employers may not unlawfully consider race, color, religion, sex, or national origin in employment decisions. Given Bostock v. Clayton County’s recent extension of Title VII’s protections to lesbian, gay, bisexual, transgender, and queer workers, this Article posits that evaluating Caucasian workers’ “reverse …

Shareholder Meetings And Freedom Rides: The Story Of Peck V. Greyhound, Harwell Wells

Seattle University Law Review

In 1947, civil rights pioneers James Peck and Bayard Rustin, members of the radical religious group, the Fellowship of Reconciliation, and its offshoot, the Congress of Racial Equality (CORE), prepared to embark on the Journey of Reconciliation, an interracial protest against segregated busing in the American South. But first, they did something else radical: they bought shares in a corporation. A year later, after their travels in the South had led to terror, death threats, beatings, and in Rustin’s case, a term on a chain gang, they brought their civil rights activism to a new site of protest—the shareholder meeting …

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

"Everybody Knows I'M Not Lazy": Medicaid Work Requirements And The Expressive Content Of Law, Kristen Underhill

Faculty Scholarship

In a first for the Medicaid program, the Department of Health and Human Services under President Trump allowed states to establish work requirements for program participants who are considered "able-bodied adults." These mandates were halted by litigation, and President Biden's administration is now in the process of withdrawing the waivers. But early experiences with Medicaid work requirements suggested that they can produce widespread losses of benefits. In addition to affecting access, work requirements and other conditions on public benefits can serve an expressive purpose: they provide a source of information about a state's values, goals, and beliefs about beneficiaries. Beneficiaries …

#Metoo Innovators: Disrupting The Race And Gender Code By Asian Americans In The Tech Industry, Xuan-Thao Nguyen

Articles

This Article focuses on how Asian American women innovators of the #MeToo generation are disrupting the code of conduct in the tech industry. The code is hard-wired into the tech bro culture of mirrortocracy, resulting in hiring practices that perpetuate existing company demographics and statistics that show that Asian American women face 2.91 times the disadvantage compared to white women. In addition, of all gender and racial groups, Asian American female innovators are the least likely to become executives. This Article identifies and explains how these innovators are the disruptors on several fronts. Utilizing everything from judicial means to traditional …

Rwu Law Equity Scorecard February 2021, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

"We Can't Breathe." Like George Floyd, Black Families In New York City Have A Knee On Their Necks, Shanée Brown

Scholarly Works

While watching the murder of George Floyd, one thing should have remained imprinted in everyone's mind: he was a father. This racist officer permanently separated a father from his children when he recklessly, yet intentionally placed his knee on Mr. Floyd's neck for eight minutes and forty-six seconds. When the Administration for Children's Services ("ACS") removes Black children from their homes for unjust reasons, it places its knee on the necks of Black families.

Breathing as a family involves parents and children inhaling and exhaling the love shown to each other. To separate a family means to obstruct that family's …

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Law Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale—and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily suspended …

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

Articles

Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

Articles

This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

The Injustices Behind America’S Incarceration Boom, Jay Widlacki

Undergraduate Research Symposium

America’s mass incarceration system functions as a tool to keep their black communities impoverished and powerless. Black people are locked away at disproportionate rates; moreover, statistics suggest that the criminal justice system is racially biased at every step. These two systems work together to keep an alarmingly high amount of black people behind bars so businesses can profit off of them. If ex-convicts leave the prison, they will find it hard to reintegrate into society because of the post-prison fees, parole requirements, discrimination, and disenfranchisement. Without rehabilitation available in most prisons, these barriers make the prison system akin to a …

A History Of Distrust: How Knowing The Law Impacts African American Males' Perceptions Of Police Encounters, Glynell R. Horn Jr.

Antioch University Dissertations & Theses

From its inception American Law Enforcement was built from a racially motivated system in which African Americans were subject to discriminatory treatment. Unfortunately, that treatment still persists in modern day policing, which is highlighted by the deaths of Eric Garner and George Floyd to name a few. There is no surprise that law enforcement needs to improve trust with the African American community; however there is a dire need for a new approach. This study is unique because unlike previous research this study focuses solely on African American males that reside in disenfranchised communities that are most at risk for …

The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose

Faculty Scholarship

In The Color Line: A Short Introduction, David Lyons provides a valuable service to students and academics in law, social sciences, and humanities by providing a concise history of the development and maintenance of race and racial order through law, policy, and discrimination in the United States. Lyons effectively outlines how race and racism were developed through these mechanisms in an effort to facilitate and maintain white supremacy.

Experimental Meets Intersectional: Visionary Black Feminist Pragmatism And Practicing Constitutional Democracy, Linda C. Mcclain

Faculty Scholarship

That pragmatism can do-and already is doing-real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In …

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …