Law and Race Commons^™

Our National Psychosis: Guns, Terror, And Hegemonic Masculinity, Stewart Chang

Scholarly Works

In this Article, Professor Stewart Chang, through the examination of three recent mass shooting, proposes that mass shootings driven by hegemonic masculinity should be classified and addressed as acts of terrorism. Professor Chang defines hegemonic masculinity as patterns or practices that promote the dominant social position of men and the subordinate social position of women and other gender identities. In this Article, he examines how hegemonic masculinity is allowed to become mainstream and flourish unchecked based on our characterization, classification and reaction to mass shootings and their perpetrators.

Remorse Bias, M. Eve Hanan

Scholarly Works

In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants' expressions of remorse as insincere and, thus, …

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

Law Student Publications

This comment explores ways in which racial bias undermines the American jury system and argues that simply having a racial bias exception to the no-impeachment rule does not go far enough to guard against racially motivated jury verdicts. In order to guarantee the Sixth Amendment right to an impartial jury, defendants must always be able to question potential jurors about racial bias, and universal court policies need to be adopted across the country that allow for a consistent approach for investigating claims of racial bias in jury deliberations. Part I of this comment examines the history of American juries and …

The Jury Sunshine Project: Jury Selection Data As A Political Issue, Ronald F. Wright, Kami Chavis, Gregory S. Parks

Faculty Publications

In this Article, the authors look at jury selection from the viewpoint of citizens and voters, standing outside the limited boundaries of constitutional challenges. They argue that the composition of juries in criminal cases deserves political debate outside the courtroom. Voters should use the jury selection habits of judges and prosecutors to assess the overall health of local criminal justice: local conditions are unhealthy when the full-time courtroom professionals build juries that exclude parts of the local community, particularly when they exclude members of traditionally marginalized groups such as racial minorities. Every sector of society should participate in the administration …

A Genealogy Of Programmatic Stop And Frisk: A Discourse-To-Practice-Circuit, Frank Rudy Cooper

Scholarly Works

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men. Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

Publications

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

'A Southern College Slipped From Its Geographical Moorings': Slavery At Princeton, Lolita Buckner Inniss

Publications

While slave-owning students at Princeton rarely constituted a majority of students, they were often a large plurality of the students in the antebellum period. Because of Princeton’s historic role in educating southerners, it has sometimes been referred to as the most southern of the Ivy League schools. So many students from the United States South enrolled at Princeton during the first several decades of the college that one observer wrote that one might take Princeton for a ‘Southern college slipped from its geographical moorings.’ This article explores the extent to which and whether Princeton behaved like a southern institution in …

Racial Justice And Federal Habeas Corpus As Postconviction Relief From State Convictions, Leroy Pernell

Journal Publications

It is the purpose of this Article not to simply document the influence of race on our criminal system and its role in the current racial crisis of overrepresentation of minorities in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity – federal habeas corpus as a postconviction remedy. By looking first at the racial context of several “landmark” criminal justice reform decisions, this Article considers how race serves as the root of the procedural due process reform that began in earnest during the Warren Court. This Article …

Separate But (Un)Equal: Why Institutionalized Anti-Racism Is The Answer To The Never-Ending Cycle Of Plessy V. Ferguson, Maureen Johnson

University of Richmond Law Review

No abstract provided.

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

University of Richmond Law Review

This comment explores ways in which racial bias undermines

the American jury system and argues that simply having a racial

bias exception to the no-impeachment rule does not go far enough

to guard against racially motivated jury verdicts. In order to

guarantee the Sixth Amendment right to an impartial jury, defendants

must always be able to question potential jurors about

racial bias, and universal court policies need to be adopted across

the country that allow for a consistent approach for investigating

claims of racial bias in jury deliberations. Part I of this comment

examines the history of American juries and …

Moving Forward After Daca: Student Stories And Town Hall, Hastings Race And Poverty Law Journal

UC Law Journal of Race and Economic Justice

No abstract provided.

Masthead

UC Law Journal of Race and Economic Justice

No abstract provided.

The Perpetuation Of Mass Incarceration: Analyzing Systemic Effects Of The U.S. Penal System, Lillian Barreto

Theses and Dissertations

This paper is divided into four parts, Part I. Perpetuation of a Disparate System , Part II. Perpetual Marginalization , Part III. My Personal Research and Part IV. Moving Forward . Part I serves to show the pervasive racial disparities throughout the criminal justice system and how these disparities portray a system which discriminates primarily against poor men of color. Part II shows how this community is disadvantaged in various parts of their social, economic and political lives because of the extent of punitivity and criminalization. It explains the way these disadvantages translate to men of color being discriminated against …

Douglass’ Reply To A. C. C. Thompson’S ‘Letter From Frederick Douglass,’ As Reprinted In The Anti-Slavery Bugle: A Critical Edition Of Both Letters, With A Summary Of Maryland’S Fugitive Slave Laws, Kayla Hardy-Butler

Nineteenth-Century Ohio Literature

Kayla Hardy-Butler presents a famous letter by Frederick Douglass, as it was published in Ohio, with the letter that prompted it. This edition also includes a summary of Maryland slave statutes from the time to better explain the day-to-day experience of slavery debated in this correspondence.

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Faculty Publications

(Excerpt)

Student activism has been part of the fabric of American higher education since the eighteenth century. Indeed, some scholars have called it "as American as apple pie." From Harvard's "Great Butter Rebellion" in 1766 when students pushed for better food to the multicultural movement of today when students have demanded increased diversity in student, staff, faculty, and curriculum, students have long pressed to have their voices heard. Continuing in this tradition, we now live in an age of student activists who, by organizing through social media, are getting more people involved in political conversations and causes than would otherwise …

Illuminating Black Data Policing, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies. This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use …

Very Long Engagements: The Persistent Authority Of Bridewealth In A Post-Apartheid South African Community, Michael W. Yarbrough

Publications and Research

This article examines the persistent authority of the customary practice for forming recognized marriages in many South African communities, centered on bridewealth and called “lobola.” Marriage rates have sharply fallen in South Africa, and many South Africans blame this on the difficulty of completing lobola amid intense economic strife. Using in-depth qualitative research from a village in KwaZulu-Natal, where lobola demands are the country’s highest and marriage rates its lowest, I argue that lobola’s authority survives because lay actors, and especially women, have innovated new repertoires of lobola behavior that allow them to pursue emerging needs and desires for marriage …

"When They Enter, We All Enter": Opening The Door To Intersectional Discrimination Claims Based On Race And Disability, Alice Abrokwa

Michigan Journal of Race and Law

This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of …

Biased Damages Awards: Gender And Race Discrimination In Tort Trials, Goran Dominioni

Cardozo International & Comparative Law Review

Current U.S. tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Restructuring The Elementary And Secondary Education Act’S Approach To Equity, Kimberly Jenkins Robinson

Law Faculty Publications

The United States stands at a crossroads regarding educational equity. On one road, the Every Student Succeeds Act (ESSA), the current reauthorization of the Elementary and Secondary Education Act (ESEA), greatly reduced federal involvement in education and returned control to state and local governments that had repeatedly criticized the prescriptive nature of the No Child Left Behind Act of 2001. In the wake of this federal retreat, state and local control of education without effective federal oversight creates grave concerns for those who advocate for economically disadvantaged and minority students, including many civil rights groups. History confirms that states and …

The Violence Against Women Act, Implicit Bias, And Judicial Training, Lorena Espino-Piepp

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Violence Against Women Act (VAWA) must be amended to include implicit bias training for Family Court judges and staff to address the systemic barriers faced by undocumented Latina immigrant women in accessing justice. These women often face compounded discrimination based on race, ethnicity, and immigration status, which undermines their ability to obtain immigration relief through VAWA protections. The author contends that without such training, the judicial system perpetuates inequities, as judges and court personnel rely on stereotypes that disproportionately harm women of color.

Critical Race Ip, Anjali Vats, Deidré A. Keller

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile

Fordham Law Review

This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …

When A Wrongful Birth Claim May Not Be Wrong: Race, Inequality, And The Cost Of Blackness, Kimani Paul-Emile

Fordham Law Review

The year 2017 marked the fiftieth anniversary of the Loving v. Virginia decision, in which a unanimous U.S. Supreme Court struck down as unconstitutional laws prohibiting interracial marriage. Today, when we consider interracial loving, we tend to envision romantic relationships. What is often overlooked, however, is the relationship between parent and child: among the most intimate of relationships. A primary reason for this oversight may be that we do not often conceptualize the parent and child relationship as an interracial space. Indeed, although most people select their romantic partners, few are afforded the opportunity to select their children outside of …

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …

Foreword—Police Misconduct And Kibbe V. City Of Springfield, Harris Freeman

Faculty Scholarship

The Law Review’s 2017 symposium, “Perspectives on Racial Justice in the Era of #BlackLivesMatter,” appropriately opened with a panel that addressed the ongoing challenge of combating police misconduct, as seen through the lens of Kibbe v. City of Springfield, a civil rights case that unfolded in Western Massachusetts and reached the United States Supreme Court thirty years ago. Kibbe presented the Court with the question of what the proper standard of liability should be for a municipality accused of a civil rights violation under 42 U.S.C. § 1983 for inadequately training a police officer who violates a person’s civil …

Constitutional Law—Do Black Lives Matter To The Constitution?, Bruce K. Miller

Faculty Scholarship

Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present …