Law and Race Commons^™

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd Clark, Caleb Gregory Conrad, Amy Dunn Johnson

Faculty Scholarship

The reality that traumatic childhood experiences are directly linked to negative health outcomes has been known and widely recognized in public health and clinical literature for more than two decades. Adverse Childhood Experiences (“ACEs”) represent the “single greatest unaddressed public health threat facing our nation today” according to Dr. Robert Block, former President of the American Academy of Pediatrics.

ACEs are traumatic events that occur in early childhood, which can range from abuse and neglect to experiences derived from household and community dysfunction, such as losing a caregiver, being incarcerated, or living with a household member suffering from mental illness. …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

The Color Of Pain: Racial Bias In Pain And Suffering Damages, Maytal Gilboa

Georgia Law Review

For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff’s race when calculating compensatory tort damages, and they do so in a manner that systematically results in lower awards to Black plaintiffs than to White. This Article examines this problem, zeroing in on the specific issue of racial bias in calculations of tort damages for pain and suffering.

The severity of a plaintiff’s injury is commonly …

The Role Of Truth-Telling In Indigenous Justice, Sara L. Ochs

Journal of Race, Gender, and Ethnicity

No abstract provided.

40 Acres And A Mule, Plus Interest: A Survey On Emerging Reparation And Racial Equity Measures, Danielle D. Rogers, Michael A. Lawrence

Journal of Race, Gender, and Ethnicity

No abstract provided.

The War On Drugs And Its Legal Effects On Black Americans, Alexia L. Howard-Mullins

2022 Symposium

The differences in treatment between Black and white Americans in the past fifty years has been a topic of thought in the minds of political and sociological scholars since the inception of the War on Drugs in 1971. These differences in treatment may lead to discrimination legally, resulting in longer prison sentences and a higher proportion of Black Americans in prison. This study analyzes the results of the War on Drugs that led to disproportionate imprisonment of Black Americans, including mandatory sentencing laws, drug classifications, and discrimination within law enforcement and the legal system. This study will use primary sources …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Filing While Black: The Casual Racism Of The Tax Law, Steven Dean

Faculty Scholarship

The tax law's race-blind approach produces bad tax policy.' This Essay uses three very different examples to show how failing to openly and honestly address race generates bias, and how devastating the results can be.² Ignoring race does not solve problems; it creates them. ProPublica has shown, for example, that because of the perils of filing income taxes while Black, the five most heavily audited counties in the United States are Black and poor.

The racial bias long tolerated-and sometimes exploited-by tax scholars and policymakers affects all aspects of the tax law. In 1986, Sam Gilliam was denied tax …

White Vigilantism And The Racism Of Race-Neutrality, Christian Sundquist

Articles

Race-neutrality has long been touted in American law as central to promoting racial equality while guarding against race-based discrimination. And yet the legal doctrine of race-neutrality has perversely operated to shield claims of racial discrimination from judicial review while protecting discriminators from liability and punishment. This Article critiques the doctrine of race-neutrality by examining the law’s response to white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants.

Reframing Hate, Lu-In Wang

Articles

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

The Social Psychology Of Inclusion: How Diversity Framing Shapes Outcomes For Racial-Ethnic Minorities, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Research on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological …

Race-Aware Algorithms: Fairness, Nondiscrimination And Affirmative Action, Pauline T. Kim

Scholarship@WashULaw

The growing use of predictive algorithms is increasing concerns that they may discriminate, but mitigating or removing bias requires designers to be aware of protected characteristics and take them into account. If they do so, however, will those efforts be considered a form of discrimination? Put concretely, if model-builders take race into account to prevent racial bias against Black people, have they then engaged in discrimination against white people? Some scholars assume so and seek to justify those practices under existing affirmative action doctrine. By invoking the Court’s affirmative action jurisprudence, however, they implicitly assume that these practices entail discrimination …

Black Lawyers Matter: Enduring Racism In American Law Firms, Vitor M. Dias

University of Michigan Journal of Law Reform

Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession?

In this Article, I address this question drawing upon data from the first nationally representative, longitudinal …

Commercial Sex And Exploitation, Judge Barbara Mack, Dana Raigrodski

Chapters in Books

Commercial sexual exploitation (CSE), including sex trafficking, mainly targets women, children, young adults (up to age 24), and individuals identifying as LGBTQ+, primarily in communities in poverty, Indigenous communities, and communities of color. Economic and social marginalization drives people into the commercial sex industry and exploitation, which in turn perpetuates that economic and social marginalization. The most targeted and marginalized populations have been doubly harmed by exploitation and by poor treatment within the legal system.

While data is limited, CSE is widespread in the sex industry in Washington State and nationally. State and national data show significant disparities based on …

Disestablishing "The Last Plantation": The Need For Accountability In The United States Department Of Agriculture, Seth L. Ellis

Journal of Food Law & Policy

The United States Department of Agriculture (USDA) was signed into law by President Abraham Lincoln in 1862. At the signing ceremony, President Lincoln declared the Department of Agriculture to be the "people's Department" because he said it governed an industry "in which [citizens felt] more directly concerned than in any other. .. ." Today, many American citizens do not share Abraham Lincoln's view of the USDA as being the "people's Department"; rather, they identify it as being "the last plantation" due to its long history of open discrimination against African-American farmers. While this discrimination has occurred throughout America's history, perhaps …

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees

Cleveland State Law Review

Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing mediation on principles …

Weathering The Pandemic: Dying Old At A Young Age From Pre-Existing Racist Conditions, Arline T. Geronimus

Washington and Lee Journal of Civil Rights and Social Justice

Mainstream social epidemiology now acknowledges the contributions of interpersonal racism, racialized stress, and implicit bias to population health inequity. It also increasingly recognizes that current and historical racist policies place barriers in the way of healthy lifestyles by institutionalizing food deserts, housing decay, and austerity urbanism. Essential as these developments are, they only skim the surface of how insidiously structural racism establishes and reproduces population health inequity. I coined the term “weathering” to describe the effects of sustained cultural oppression upon the body. Weathering expands on the more conventional “social determinants of health” approach to understand the contextually fluctuating and …

Empathy’S Promise And Limits For Those Disproportionately Harmed By The Covid-19 Pandemic, Theresa Glennon

Washington and Lee Journal of Civil Rights and Social Justice

Structural race, ethnicity, and class disparities in the United States concentrated and intensified the health, economic, and psychological impact of COVID-19 for certain populations. Those same structural disparities and the belief system that maintains them may also account for the weak policy response that left the United States with high rates of infection and death, economic devastation of individuals, families, and small businesses, and psychological distress. A more equal society with a stronger pre-pandemic safety net may have prevented or eased the disproportionate hardship and avoided the drama and cliffhanging. Or the shock of a pandemic and likelihood of extreme …

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Washington and Lee Journal of Civil Rights and Social Justice

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic has laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first will focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I will explore patterns of racial and ethnic segregation in America’s schools and how those patterns are linked to additional challenges based on socioeconomic isolation. In addition, I will consider the role of language and …

Hair Goes Nothing: Proposing The Uniform Enactment Of The Crown Act Across The United States, Alexandra Halbert

Journal of Race, Gender, and Ethnicity

No abstract provided.

Foreword, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

Going Beyond Rule 8.4(G): A Shift To Active And Conscious Efforts To Dismantle Bias, Meredith R. Miller

Journal of Race, Gender, and Ethnicity

No abstract provided.

The $2 Billion-Plus Price Of Injustice: A Methodological Map For Police Reform In The George Floyd Era, David Schultz

Mitchell Hamline Law Review

No abstract provided.

Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman

Touro Law Review

No abstract provided.

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

#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 …

How The State And Federal Tax Systems Operate To Deny Educational Opportunities To Minorities And Other Lower Income Students, Camilla E. Watson

Scholarly Works

The importance of education cannot be overstated. Education is a core principle of the American Dream, and as such, it is the ticket to a better paying job, homeownership, financial security, and a better way of life. Education is the key factor in reducing poverty and inequality and promoting sustained national economic growth. But while the U.S. Supreme Court has referred to education as "perhaps the most important function of the state and local governments," it has nevertheless stopped short of declaring education a fundamental right guaranteed under the Constitution. As a consequence, because education is not considered a fundamental …

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Michigan Journal of Race and Law

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of …