Law and Race Commons^™

The Freedman's Savings Bank And Financial Literacy Education, Alexis Ann Ballance

Law Student Publications

In the United States, white, non-Hispanic individuals possess approximately seven times the wealth of Black individuals. One recent study found that for every 100 dollars in wealth held by a white household, a Black household holds about fifteen dollars. This disparity in wealth accumulation is referred to as the wealth gap, and it has historically stratified along racial lines. Although income inequality contributes to this disparity, the racial wealth gap is much more pronounced and continues to grow. ...

An In-Depth Criticism Of Shaw V. Reno, Katherine M. Perez-Oviedo

Michigan Journal of Race and Law

If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination. When the question of “how can we use the law to instill social change?” is proposed in class discussion, it is difficult to imagine a world in which the Court would support the progressive measures suggested.

Toward A Perpetual Practice Of Affirmative Action, Sheldon Bernard Lyke

Northwestern University Law Review

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited …

Infrastructure Equality, Deborah N. Archer, Yuvraj Joshi

Northwestern University Law Review

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should …

Existing Together From The Beginning: Freedom To Contract And Black Mutual Aid, Cara Mcclellan

Northwestern University Law Review

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive …

Not Colorblind, Kimberly West-Faulcon

Northwestern University Law Review

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Understanding Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan

Faculty Scholarship

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

The "New" Drug War, Jennifer D. Oliva, Taleed El-Sabawi

Articles by Maurer Faculty

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure …

A Theory Of Racialized Judicial Decision-Making, Raquel Muñiz

Michigan Journal of Race and Law

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, …

The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce

College Honors Program

It is well documented how our country’s Criminal Justice System has a history of targeting people of color. A lot of this contention is derived from police officers’ behavior when interacting with individuals, yet officers only act upon the laws and legal policies that grant them authority, including probable cause. My thesis addresses the question, how does the fluid and ambiguous nature of probable cause leave the door open for officers to disproportionately target people of color in the United States? While focusing on vehicle, person, and property searches, I first define probable cause, building an understanding of exactly what …

Racism And Trademark Abandonment, Jon J. Lee

Faculty Articles

As companies have come to terms with the fact that their brand names and imagery have connections to our country’s racist history, they have publicly announced their commitments to shed their ignominious trademarks. But unlike a physical monument, a trademark cannot be destroyed or removed. Under the prevailing doctrine, abandoned trademarks return to the public domain, free for another company to claim and use—even if it is to capitalize on the mark’s recognition as a symbol of oppression. This puts companies who wish to sever their ties with their racist trademarks in an intractable situation: either they make good on …

Facilitating Race-Conscious Targeted Purchasing Programs In The Shadow Of The Trump Judiciary, Daniel Choma

Mitchell Hamline Law Review

No abstract provided.

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Abusing Discretion: The Battle For Childhood In Schools, Hannah Dodson

Michigan Journal of Race and Law

For too many children the schoolhouse doors become a point of entry into the criminal justice system. Children of color are the most likely to suffer from this phenomenon. The presence of policing in schools is a key contributor to this “school-to-prison pipeline.” This Note argues that broad, discretionary mandates for school resource officers (SROs) promote biased law enforcement that impacts Black girls in different and specific ways. I contend that SRO mandates can be effectively limited by strategically bolstering community organizing efforts with impact litigation.

Carceral Intent, Danielle C. Jefferis

Michigan Journal of Race and Law

For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement.

This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and …

Measuring And Assessing The Impact Of Race And Culture Assessments In Sentencing, Alexia Bystrzycki

LLM Theses

In recent years, the use of Impact of Race and Culture Assessments (“IRCA”) emerged in sentencing across Canada, especially in Nova Scotia and Ontario. Sentencing judges recognized that IRCAs “have the potential to provide a bridge between an accused’s experience with racial discrimination and the problem of over-incarceration” (R v Jackson, 2018 ONSC 2527). Consequently, IRCAs are helpful in achieving fit and proportional sentences. Using a mixed-methods approach, this thesis seeks to assess the impact of IRCAs on sentencing decisions. First, this thesis examines how judges apply IRCAs in crafting sentences by way of content analysis. Second, this thesis attempts …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Pepperdine Law Review

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

Racial Discrimination In Life Insurance, William G. Gale, Kyle D. Logue, Nora Cahill, Rachel Gu, Swati Joshi

Law & Economics Working Papers

We examine the historical and statistical relationship between race and life insurance. Life insurance can play a central role in households’ financial security. Race has played an important and changing role in the provision of life insurance in the U.S. from slave insurance before the Civil War, to “Scientific Racism” continuing into the 20th century, to policies that do not explicitly mention race in recent decades. In empirical work using new data, we confirm earlier work showing that Black individuals have higher life insurance coverage rates than white individuals, controlling for observable characteristics. We find no difference in the likelihood …

Moving From Harm Mitigation To Affirmative Discrimination Mitigation: The Untapped Potential Of Artificial Intelligence To Fight School Segregation And Other Forms Of Racial Discrimination, Andrew Gall

Catholic University Journal of Law and Technology

No abstract provided.

Practicing With Conviction: Race, Reentry, And The Legal Profession, Nicole Smith Futrell

Faculty Scholarship

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic …

Taxonomy And Restorative Justice: Can We Even See The Problem?, Dominique Day

Journal of Race, Gender, and Ethnicity

No abstract provided.

Robert Cover And Critical Race Theory, Gabriel J. Chin

Touro Law Review

Professor Robert Cover is recognized as a leading scholar of law and literature; decades after his untimely passing, his works continue to be widely cited. Because of his interest in narrative, he is credited as a contributor to the development of Critical Race Theory. This essay proposes that in addition to narrative, some of his other, substantive works about race were also important precursors to a more sophisticated appreciation of U.S. race relations. Professor Cover is also entitled to credit for understanding racism as a pervasive system, and one which went beyond Black and White.

Race Belongs In Week One Of Lrw, Beth H. Wilensky

Articles

I talk to my 1Ls about race and the law in their first week of law school. In doing so, I have discovered that discussing race helps me introduce foundational concepts about legal writing and law school that we will return to throughout the year. That is partly because race is relevant to nearly every topic law school touches on. But it is also because race is present in—and often conspicuous in its absence from—court opinions in ways that provide rich fodder for discussing how to approach law school. That topic interests all students—even those who might be skeptical about …

Modern Authorities From Brandies To Brnovich: For Jurists Who Have Considered Social Science / When Doctrine Was Not Enough, Jeremiah Chin

Articles

While the Supreme Court is the final authority on the Constitution, its interpretations increasingly turn to outside, non-legal sources to authoritatively support its conclusions of law and fact. Particularly in cases involving racial discrimination, the Court relies on social science data presented by the trial record, amicus curiae, or its own research. However, the Court lacks explicit rules or methods of analysis for these data. To remedy this gap in analysis, this article proposes a critical methodology for analyzing the use of social science data in cases involving race. By outlining a historiography of the Court's invocation of extrinsic data, …

Denial Of Housing To African Americans: Post-Slavery Reflections From A Civil Rights Advocate, Elaine Gross

Touro Law Review

In this article, I draw on two decades of experience as a civil rights advocate to reflect on the denial of housing to African Americans in post-slavery America. I do so as Founder and President of the civil rights organization, ERASE Racism. I undertake historical research and share insights from my own experience to create and reflect upon six lessons related to understanding the systematic discrimination and segregation of African Americans. The lessons encompass: (1) the role of the federal government, (2) the role of municipal governments, (3) White supremacy ideation and actions, (4) legislative advocacy and legal actions, (5) …

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster

Faculty Scholarship

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …

Police Brutality: Macroeconomic Effects In The United States, Nya Bryant, Kate Perry

Honors College Theses

How does racial discrimination negatively impact citizens in the US regardless of racial identity? There have been many deaths that have resulted from law enforcement interaction with Black citizens, such as George Floyd and Sandra Bland among countless others, and each of these deaths have negatively impacted the overall community in which they happened. Events such as these have caused many protests and movements to be sparked such as the Black Lives Matter movement and have resulted in an uprising of citizens demanding change, yet not all citizens recognize how police brutality incidents impact their own lives. In this project, …

Do The Police Protect And Serve All People In The United States?: A Survey Of The Problems Within Modern Policing And Solutions To Ensure The Police Protect And Serve Us All, Bianca Velez

University of San Francisco Law Review

No abstract provided.