Law and Race Commons^™

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

Faculty Works

The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Commodified Inequality: Racialized Harm To Children And Families In The Injustice Enterprise, Daniel L. Hatcher

All Faculty Scholarship

This article addresses the systemic racialized harm of a vast injustice enterprise, with a focus on the symbiotic operations of agencies and justice systems monetizing vulnerable children and families, including the impact of contractual revenue schemes uncovered in my new book, Injustice, Inc. Our foundational justice systems are permeated by a history of racial injustice, and that history reverberates into factory-like operations that churn children and the poor into revenue. The revenue-generating mechanisms used by juvenile and family courts, prosecutors, probation departments, police, sheriffs, and detention facilities all draw the concerning historical connection—interlinked with the practices of child and …

Foreword: Finding Balance In The Fight Against Gun Violence, Michael Ulrich

Faculty Scholarship

The United States is distinct among high-income countries for its problem with gun violence, with Americans 25 times more likely to be killed by gun homicide than people in other high-income countries.¹ Suicides make up a majority of annual gun deaths — though that gap is closing as homicides are on the rise — and the U.S. accounts for 35% of global firearm suicides despite making up only 4% of the world’s population.² More concerning, gun deaths are only getting worse. In 2021, firearm fatalities approached 50,000, the highest we have seen in at least 40 years.^{3 …}

The Hyper-Incarceration Of Female Minority Juvenile Offenders Within The Juvenile And Criminal Justice Systems, Ruth C.A. Philippe

Selected Honors Theses

Young women are the fastest-growing portion of the juvenile justice system population. Girls experience risk factors at higher rates than boys, exhibit mental health issues at higher rates than boys, suffer more negative consequences from justice system involvement than system-involved boys, and are less likely to access treatment than boys. Girls are also more likely to become involved with the justice system for minor offenses such as running away or skipping school. In particular, young women of color receive unfair treatment than their counterparts. Girls of color are disadvantaged and treated differently within both the juvenile and criminal justice systems …

Battling Batson: State V. Andujar And New Jersey's Efforts To Fix A Broken Doctrine, Eli Shahar

Cardozo Law Review

No abstract provided.

Open Your Eyes: Teaching And Learning About Anti-Asian Racism And The Law In Canada, Angela Lee

Dalhousie Law Journal

Recently, policymakers, institutional actors, and the public have made greater efforts towards being attentive to issues relating to anti-racism and discrimination, as well as equity, diversity, and inclusion more broadly, prompted in part by growing calls for reconciliation with Indigenous peoples and the increasing visibility of the Black Lives Matter movement. Yet, there has been a relative dearth of attention paid to the specific ways in which anti-Asian racism manifests and is maintained, particularly in the Canadian context. More than just being a relic of the past, antiAsian racism is an ongoing phenomenon both within and beyond Canada’s borders, as …

A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden

Fordham Law Voting Rights and Democracy Forum

Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.

First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

The Architecture Of Discretion: Implications Of The Structure Of Sanctions For Racial Disparities, Severity, And Net Widening, Ryan T. Sakoda

Northwestern University Law Review

About four million people are serving a term of probation, parole, or post-release supervision in the United States. Due to the extensive use of incarceration as a punishment for conditions violations, these community supervision programs are a major factor contributing to mass incarceration and, as this Article shows, can play a significant role in exacerbating racial disparities in the criminal legal system.

In recent years, jurisdictions throughout the United States have made reforms to their community supervision programs. A major trend in community supervision reform is the integration of new sanctioning structures, such as “swift and certain” sanctions, for conditions …

Critical Perspectives To Advance Educational Equity And Health Justice, Yael Cannon, Nicole Tuchinda

Georgetown Law Faculty Publications and Other Works

A robust body of research supports the centrality of K-12 education to health and well-being. Critical perspectives, particularly Critical Race Theory (CRT) and Dis/ability Critical Race Studies (DisCrit), can deepen and widen health justice’s exploration of how and why a range of educational inequities drive health disparities. The CRT approaches of counternarrative storytelling, race consciousness, intersectionality, and praxis can help scholars, researchers, policymakers, and advocates understand the disparate negative health impacts of education law and policy on students of color, students with disabilities, and those with intersecting identities. Critical perspectives focus upon and strengthen the necessary exploration of how structural …

The Buffalo Model: An Approach To Aba Standard 303(C)'S Exploration Of Bias, Cross Cultural Competency, And Antiracism In Clinical & Experiential Law, Kim Diana Connolly, Elisa Lackey

Journal Articles

This Article offers an early analysis of ABA Standard 303(c) following its recent adoption in 2022. ABA Standard 303(c) requires that law schools “shall provide education law students on bias, cross-cultural competency, and racism.” The Author suggests that 303(c) formalizes what many clinical educators have already been teaching: inclusion, justice, and belonging. Following the 2020 shootings of George Floyd and Breonna Taylor, many law schools have revisited their diversity, equity, and inclusion programming and implemented various new initiatives and training. Despite current efforts, the Author notes that planning and resources will need to be allocated toward compliance efforts in order …

Pov: Yes, Filling Out The Race Box On Forms Is Tiresome, But Here’S Why It Matters, Jasmine Gonzales Rose, Neda Khoshkhoo

Shorter Faculty Works

Filling out your race and ethnicity on a form may feel tiresome, and even uncomfortable. You have been checking these boxes for years, as has everyone else, and the questions may seem irrelevant.

“What does race have to do with my doctor’s appointment?” you might ask. Or a form may be inaccurate: “I’m Middle Eastern, why don’t I get a box to check?” Perhaps it feels intrusive: “How is this information going to be used?” And you may wonder, “Why are we always talking about race?”

The truth is, we need to keep talking about race. Even more than we …

Sticky Situations: Understanding The Law And Life, Krystal Banks

National Youth Advocacy & Resilience Conference

Law and life go hand in hand. Understanding the law and how it connects to life can be an effective tool in teaching youth and adults the value of making good decisions when it comes to life and the law. Sticky Situations places real-world situations in the context of learning how to apply the law and effectively respond to life's sticky situations.

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

Continuing Principled Sentencing Reform And Winding Back Mass Incarceration Against The Backdrop Of America’S Surge In Violent Crime, Mirko Bagaric, Jennifer Svilar, Brienna Bagaric

Nevada Law Journal

No abstract provided.

Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

Faculty Scholarship

Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so …

Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker

Michigan Law Review

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …

Law School News: A Voice For Justice 3-1-2023, Janine L. Weisman, Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

Brooklyn Law Review

The racial pay gap in the US is staggering. Wealth disparities between Black, Latinx, and white households reflect the compound negative effects of discrimination, inequality, and lack of opportunities experienced by communities of color. One understudied way to address racial pay equity and the wealth gap is to examine how to widen career paths of high-paying, stable careers for people of color. Career paths are not equal. Some jobs are dead-end, minimum wage-paying, with little to no hope of promotion into a salary that catapults an earner into the next socioeconomic class. Others have growth potential, comfortable wages, and important …

We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson

Brooklyn Law Review

This article takes you on a journey through concept to practice where minoritized populations are often judged less than—less competent, less intelligent—and pushed to society’s margins because they do not speak or write “the Queen’s English.” This practice is particularly pervasive and handicapping to diversity efforts in the legal profession, beginning in law school classrooms. To make any headway into the legal profession’s lack of diversity, a better understanding is required of the undeniable connectedness of how our biases show up in our informal and formal assessment of the speech and writing of those whom we encounter. While it is …

Inherently Unequal: The Effect Of Structural Racism And Bias On K-12 School Discipline, Alicia R. Jackson

Brooklyn Law Review

Structural racism is deeply rooted in our nation's history and often manifests as discrimination and inequality in critical facets of life in the United States, including education. This Article explores the impact of structural racism and bias on discipline in the K-12 public school setting. Discriminatory bias-based decision-making and school discipline policies have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. US Department of Education data shows that Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Let's Talk Dirty: Revealing The United States Sanitation Crisis And Its Disproportionate Effect On Poor And Minority Communities, Lindsay Norton

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Solenex, Llc V. Haaland, Jennifer Kieffer Jensen

Public Land & Resources Law Review

In 1982, BLM issued an oil and gas lease in the Badger-Two Medicine to Solenex’s predecessor. The Badger-Two Medicine, located in the Lewis and Clark National Forest, is an area of cultural and spiritual importance to the Blackfeet Tribe. After four decades of disagreement as to whether the lease was validly issued, the Secretary of the Interior found that the lease violated the National Historic Preservation Act. Accordingly, she canceled Solenex’s lease and revoked Solenex’s Application for Permit to Drill. The District Court for the District of Columbia held the Secretary did not possess the authority to cancel Solenex’s lease. …

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

The Sex Equality Gap: How The 20th Century Sex Equality Paradigm Continues To Leave Women Of Color Behind, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The United States has a sex equality problem that disproportionately impacts women of color. Despite the passage of sweeping federal, state, and local laws that prohibit discrimination on the basis of sex in employment, education, public benefits, housing, healthcare, voting, and in significant aspects of the U.S. economy and society, women — and particularly women of color — continue to experience persistent sex discrimination. These laws, starting with the Equal Pay Act of 1963 and the Civil Rights Act of 1964, make up what we call the 20th Century Sex Equality Paradigm.

At face value, such laws can be …

Law Library Blog (February 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

Articles

Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …