Law and Race Commons^™

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people’s beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories …

“Officer-Involved Shootings”: How The Exonerative Tense Of Media Accounts Distorts Reality, Michael Conklin

University of Miami Race & Social Justice Law Review

In “Officer-Involved Shootings”: How the Exonerative Tense of Media Accounts Distorts Reality, the author examines how the use of passive language absolves officers from public and media accountability after a shooting. This Article reports the findings of a first-of-its-kind study designed to measure how the use of the phrase “officer-involved shooting” affects public perceptions of police behavior justifications.

Revengence Taken: Russian Active Measures And Our Entrenched Racial Divide, Erin Berhan

University of Miami Race & Social Justice Law Review

Our racial divide has always been a national security threat. An early observer of our American project, Alexis de Tocqueville, wrote about this threat to our future union in “Democracy in America,” learned by merely travelling the young nation thirty years before our Civil War.1 Despite generations of societal and legal evolution, our nation has not overcome the wounds and disabilities that our racial divide left behind — now ripe for modern security threats. In 2019, the United States Senate Select Committee on Intelligence released Volume II of their years long investigation into Russian Active Measures of interference with our …

The Dangers Of Racial Gerrymandering In The Frontline Fight For Free And Fair Elections, Laura Odujinrin

University of Miami Race & Social Justice Law Review

Since its founding, the United States has counted democratic elections as a fundamental tenet of democracy. Redistricting ensures that elections are free, fair, and representative of the people. This process requires that every ten years, after the national census, congressional, state, and local districts are redrawn, if necessary, to reflect changes in population to ensure that district populations are equal. What should be a simple calculation, has become step one in a political party’s bid to maintain or gain power. This has led to countless legal battles and minority populations left without adequate representation. In turn, this lack of representation …

Reclaiming Safety: Participatory Research, Community Perspectives, And Possibilities For Transformation, Janet Moore

Faculty Articles and Other Publications

This paper offers the first known interdisciplinary, community-based participatory research study to focus directly on two questions that have drawn increased attention in the wake of global protests over racialized police violence: 1) What is the definition of safety? and 2) How can safety be made equally accessible to all? The study is part of a larger project that was co-designed by community members and academic researchers. The project aimed to strengthen local justice reform efforts by adding new data literacy skills to existing community-organizing capacity among Black residents of the Cincinnati, Ohio metropolitan area. Community-led roundtable discussions offered community …

Our Silence Will Not Protect Us . . . And Neither Will J. Edgar Hoover: Reclaiming Critical Race Theory Under The New Mccarthyism, Christina Hsu Accomando, Kristin J. Anderson

Humboldt Journal of Social Relations

The right-wing attack against critical race theory is the latest manufactured panic designed to whip up supporters of a party beholden to Donald Trump. Since late 2020, hundreds of measures have been introduced across the U.S. to ban antiracism education, critical race theory, the 1619 Project, and any understanding of racism as systemic and embedded in U.S. history and law. While an understandable reaction of educators is to declare that they are not teaching critical race theory, our position is to reclaim critical race theory for the powerful lens it offers in understanding the history of the U.S., the protracted …

Protect And Serve, Marissa Jackson Sow

Law Faculty Publications

There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses …

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Law Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the white liberal elite.

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 …

Whiteness As Contract, Marissa Jackson Sow

Law Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily  apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

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 …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

The Religion Of Race: The Supreme Court As Priests Of Racial Politics, Audra Savage

Utah Law Review

The tumultuous summer of 2020 opened the eyes of many Americans, leading to a general consensus on one issue—racism still exists. This Article offers a new descriptive account of America’s history that can contextualize the zeitgeist of racial politics. It argues that the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery in the creation of the Constitution. This religion, called the Religion of Race, is built on a belief system where whiteness is sacred and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the …

Racism As A Human Rights Risk: Reconsidering The Corporate 'Responsibility To Respect' Rights, Erika George

Faculty Scholarship

Darnella Frazer, a teenage witness to a fatal police encounter, used social media to share her cell phone video footage capturing a white police officer casually kneeling on the neck of a handcuffed Black man named George Floyd for nearly nine minutes. Her video rapidly went viral, sparking civil unrest across the United States (US) and protests around the world.¹ Independent experts of the Special Procedures of the United Nations Human Rights Council came together to issue a joint statement condemning 'systemic racism' and 'state sponsored racial violence' in the US.² George Floyd was not the first unarmed …

Immigration And Racial Justice: Enforcing The Borders Of Blackness, Karla Mckanders

Georgia State University Law Review

Black immigrants are invisible at the intersection of their race and immigration status. Until recently, conversations on border security, unlawful immigration, and national security obscured racially motivated laws seeking to halt the blackening and browning of America. This Article engages with the impact of immigration enforcement at the intersection of anti-Black racism and interrogates how foundational immigration laws that exist outside constitutional norms have rendered Black immigrants invisible. At this intersection, Black immigrants experience a double bind where enforcement of immigration laws and the criminal legal system have a disparate impact resulting in disproportionate incarceration and deportation.

First, the Article …

Pandemic Policing, Christian Sundquist

Georgia State University Law Review

No abstract provided.

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Which America?: Judge Roger L. Gregory And The Tradition Of African-American Political Thought, Daniel Fryer

Washington and Lee Law Review

In this Article, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African-American political thought. I suggest that, at bottom, Judge Gregory has a leveling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well-off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well-off integrated into a fully equal society. By comparing and contrasting his work …

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Fulfilling Porter's Promise, Danielle Allyn

William & Mary Journal of Race, Gender, and Social Justice

Despite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.

This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities …

Pathological Racism, Chronic Racism & Targeted Universalism, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call pathological racism, that limits its capacity for addressing the fundamental restructuring that racial justice requires. We suggest, in a manner that might be viewed as counterintuitive, that targeted universalist remedies might be more effective to address long term racial inequality but might also be …

How To Talk About Racism, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

In a commentary, SMU Assistant Professor of Law Benjamin Joshua Ong wrote that recent debates about race and race relations have reminded him that using a single word to describe something can lead to quibbles over the precise definition, while discussion of the thing itself is neglected. He believes that in addressing important questions related to race, we should not reduce the potentially rich discussion to a simplistic argument over whether the incidents are "racist" or not, but should keep an open mind when having difficult conversations.

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

Law School News: Dean's Distinguished Service Award 2021: Ralph Tavares 05/28/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Law School News: 'Nothing Short Of Extraordinary' 05/21/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

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

Northwestern Journal of Law & Social Policy

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 …

White Tape And Indian Wards: Removing The Federal Bureaucracy To Empower Tribal Economies And Self-Government, Adam Crepelle

University of Michigan Journal of Law Reform

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources.

This Article asserts the federal regulatory “white …

To What Extent Is The Death Penalty A Tool Of Racial Terror In America, And How Can We Fix It?, Gabrielle Boileau

Honors Projects

In this project, I seek to answer the question: To what extent is the death penalty a tool of racial terror in America, and how can we fix it? America has long been plagued by the legacy of slavery and white supremacy. In the reconstruction era, when slavery was no longer legal, angry white citizens would simply round up African-Americans and lynch them if they felt they had done something “wrong”. However, in the modern era, such blatant displays of racism are illegal, and the racist views of society are subverted into the court system. Black men are disproportionately arrested …