Law and Society Commons^™

Law, Narrative, And The Continuing Colonist Oppression Of Native Hawaiians, David Barnard

ExpressO

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it …

The Limits Of Equality And The Virtues Of Discrimination, Yifat Bitton

ExpressO

This article focuses on the application of antidiscrimination regimes to groups which have been discriminated-against de jure and de facto. This Article approaches diverges from the dominant view that discrimination is a purely destructive force. The central argument of the Article is that de jure, overt and blatant discrimination necessarily contributes to the creation of a coherent group identity recognized by law, which enables groups that are discriminated against to obtain remedial relief. In contrast, the law fails to recognize a coherent group identity for de facto discriminated-against groups and thus these groups have to overcome a structural challenge to …

Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper

Law Faculty Scholarship

"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …

What's In A Name?: Cause Lawyers As Conceptual Category, Corey S. Shdaimah

ExpressO

Stuart Scheingold's and Austin Sarat's "Something to Believe In: Politics, Professionalism, and Cause Lawyering," (Stanford University Press, December 2004) draws on a decade of empirical and theoretical work on cause lawyering. Scheingold’s and Sarat’s law and society scholarship contributes to our knowledge of lawyering, the law, work with clients and social movements, and the interplay between what Ewick and Silbey have called "legality" and the social world. Their cross-disciplinary work makes a significant contribution to the social sciences as well as to the field of legal studies. This review examines the utility of cause lawyering as a concept that contributes …

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Dan The Xenophobe Rides The A-Train Or The Modern, "Secret" Racist: Unconscious Racism In `Enlightened America' And The Destructive Stereotypes That Fuel It, Richard D. Salgado

ExpressO

A short story style exploration of unconscious racism in modern "enlightened" America.

Reading, Writing, And Reparations: Systematic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Faculty Articles and Other Publications

This Article examines reparations as a means of supporting systemic reform of public education, focusing on a recent enactment of the Virginia General Assembly, the Brown v. Board of Education Scholarship Program and Fund (Brown Fund Act). This provision seeks to remedy the state's refusal to integrate schools after the Supreme Court's decision in Brown v. Board of Education by providing scholarships to persons denied an education between 1954 and 1964, a period known as massive resistance. Under this regime, the state's executive and legislative branches colluded to develop laws that defied Brown's mandate, including authorizing the governor to close …

Toward Praxis, Emily Houh

Faculty Articles and Other Publications

This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis …

Making America "The Land Of Second Chances": Restoring Socioeconomic Rights For Ex-Offenders, Deborah N. Archer, Kele Stewart

Articles

No abstract provided.

Still, At The Margins, Emily Houh

Faculty Articles and Other Publications

An anthology by Austin Sarat is reviewed from a critical race perspective. The book's agenda is to show how the law seeks to work in the world, particularly when, why, and how legal decisions respond to social characteristics of those making them as well as those who are subject to them. Also emphasized are the complex relations among the law's various parts (e.g., judges and jurors, police and prosecutors, appellate and trial courts). The book is organized around the law's paradoxes, purposes of the law which can be somewhat mutually exclusive. Many of the leading voices in the law and …

Asking The Straight Question: How To Come To Speech In Spite Of Conceptual Liquidation As A Homosexual, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Legislative Updates, Eriade Hunter

The Modern American

No abstract provided.

Arab Stereotyping: A Multi-Disciplinary Perspective, Rachel Saloom

The Modern American

No abstract provided.

Greasers And Gringos: Latinos, Law, And The American Imagination By Steven W. Bender, Chelsy A. Castro

The Modern American

No abstract provided.

The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring

UIC Law Review

No abstract provided.

The French "Headscarves Ban": Intolerance Or Necessity?, 40 J. Marshall L. Rev. 235 (2006), Reuven (Ruvi) Ziegler

UIC Law Review

No abstract provided.

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.

Against The Tide - Katrina Exposes Racial Divide, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Limiting The Presidency To Natural Born Citizens Violates Due Process, 39 J. Marshall L. Rev. 1343 (2006), Paul A. Clark

UIC Law Review

No abstract provided.

I Am Certain He Is The Man...I Think, Tim Harris

The Modern American

No abstract provided.

Choice And Fraud In Racial Identification: The Dilemma Of Policing Race In Affirmative Action, The Census, And A Color-Blind Society, Tseming Yang

Michigan Journal of Race and Law

This Article focuses on the implications of self-conscious efforts by individuals to alter their racial identity and the challenge that they pose to social conventions and the law. It also considers some implications of such a framework to the promotion of a color-blind society, in particular with respect to health care services and bureaucratic records.

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

Scholarly Works

Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

Jackson V. Birmingham Board Of Education: Expanding The Class Of The Protected, Or Protecting The Protectors?, Cassandra M. Hausrath

University of Richmond Law Review

No abstract provided.

Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

Part I of this essay begins one hundred years before the passage of the Act, with Reconstruction. I briefly canvas the interracial alliances of the Reconstruction and Redemption periods, underscoring that American democracy has been most responsive to the masses, including working class whites, when interracial alliances between whites and blacks commanded majority power. I then recount how a politics of white supremacy animated and perpetuated racial schisms between blacks and whites for a century in the South. Part II describes how the Act came to be passed, emphasizing the role of protest and coalition politics in its enactment, and …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve

Faculty Articles

The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

The Adventure(S) Of Blackness In Western Culture: An Epistolary Exchange On Old And New Identity Wars, Adrienne D. Davis, Robert S. Chang

Scholarship@WashULaw

Through a series of letters, Professors Robert Chang and Adrienne Davis examine the politics of positionality in law and literary criticism. They use the scholarly debates and conversations around critical race theory and feminist legal theory as a starting point to formulate some thoughts about Critical Race Feminism ("CRF") and its future. The authors use the epistolary form as a literary device to allow them to collaborate on this project while maintaining their own voices. Thus, the letters are not dated. The letters pay particular attention to various border crossings: male attempts to engage in feminist literary criticism, white attempts …

Brown And Lawrence (And Goodridge), Michael J. Klarman

Michigan Law Review

One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and …

Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen

ExpressO

Title VII does not explicitly protect homosexual employees from sexual orientation discrimination and the courts have generally refused to bootstrap sexual orientation discrimination into Title VII as a form of gender discrimination. Therefore, homosexual employees have had to depend on their constitutional rights to protect them from their public employers’ sexual orientation discrimination. Traditionally, the courts have allowed public employers to discriminate against homosexual employees so long as the employers’ reasons were rationally related to legitimate business purposes.

I argue that the Supreme Court’s reasoning in Lawrence v. Texas forces future courts to question the reasonableness of employers’ rational bases. …