Equal Protection And White Supremacy,
2018
Northwestern Pritzker School of Law
Equal Protection And White Supremacy, Paul Butler
Northwestern University Law Review
The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.
The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor,
2018
Northwestern Pritzker School of Law
The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman
Northwestern University Law Review
Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …
"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality,
2018
Northwestern Pritzker School of Law
"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost
Northwestern University Law Review
This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue …
Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?,
2018
Northwestern Pritzker School of Law
Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut
Northwestern University Law Review
Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a quality education. …
Mccleskey V. Kemp: Field Notes From 1977-1991,
2018
Northwestern Pritzker School of Law
Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger
Northwestern University Law Review
The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …
Things Invisible To See: State Action & Private Property,
2018
Texas A&M University School of Law
Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley
Texas A&M Law Review
This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …
Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness,
2018
University of Florida Levin College of Law
Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson
UF Law Faculty Publications
Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many …
Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?,
2018
CUNY John Jay College
Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?, Matilde Ascheri
Student Theses
Bait questions—hypothetical questions about evidence, often used by detectives during interrogations—can activate the misinformation effect and alter jurors’ perceptions of the evidence of a case. Here, we were interested in investigating whether mock jurors’ implicit biases could amplify the magnitude of the misinformation effect. We accomplished this by manipulating the age and race of the suspect being interrogated. As an extension of Luke et al. (2017), we had participants read a police report describing evidence found at a crime scene, then read a transcript of a police interrogation where the detective used bait questions to introduce new evidence not presented …
Implicit Bias's Failure,
2018
University of Michigan
Implicit Bias's Failure, Samuel Bagenstos
Articles
The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:
Mass Incarceration: Slavery Renamed,
2018
San Jose State University
Mass Incarceration: Slavery Renamed, Samantha Pereira
Themis: Research Journal of Justice Studies and Forensic Science
This paper aims to analyze the connections between slavery and mass incarceration. It begins by giving background information regarding the topic and setting the framework to argue that slavery was never abolished, but was instead continued using mass incarceration. The paper then goes on to further explain this concept by examining the constitutional and judicial laws in the United States, slave plantations and prisons, with regard to geographical, architectural, and operational design, and finally, the role of society in both systems. The framework for continuing slavery was set with the passing of the 13th Amendment and has since been expanded …
Medical Apartheid: A Book Review,
2018
San Jose State University
Medical Apartheid: A Book Review, Carmen Kennedy
Themis: Research Journal of Justice Studies and Forensic Science
No abstract provided.
Increasing Police Accountability And Improving Use Of Force Policies In The United States,
2018
San Jose State University
Increasing Police Accountability And Improving Use Of Force Policies In The United States, Leica Kwong
Themis: Research Journal of Justice Studies and Forensic Science
Communities, and their respective police departments, have significant impacts on the social and legal matters they are involved with, making it crucial for both parties to strive to maintain strong, collaborative relationships. Positive interactions between police and the public are therefore extremely vital and beneficial to all involved. Police officers should be held accountable for their transgressions and subject to transparency for their on-duty actions through legal records. Several issues lie in the policies and procedures which requires more attention in its analysis. Changing policies and procedure in the United States regarding police use of force to remedy inconsistencies calls …
“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act,
2018
Northwestern Pritzker School of Law
“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act, Allison Krause Elder
Northwestern Journal of Law & Social Policy
In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the …
The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual,
2018
Northwestern Pritzker School of Law
The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler
Northwestern Journal of Law & Social Policy
The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …
Equal Work,
2018
University of Maryland Francis King Carey School of Law
Equal Work, Stephanie Bornstein
Maryland Law Review
Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually …
The Free Blacks Of Virginia: A Personal Narrative, A Legal Construct,
2018
University of New Mexico - School of Law
The Free Blacks Of Virginia: A Personal Narrative, A Legal Construct, Sherri L. Burr
Sherri L. Burr
The existence of the Free Blacks of Virginia as a group in United States history would surprise most Americans. The common narrative is that all Africans were brought to this country as slaves with no rights, and systematically received legal privileges after the Civil War in the 1860s and the Civil Rights struggle a century later. The reality differs from this assumption. The first Africans who landed on the shores of Virginia in 1619 began their lives as indentured servants similar to many European immigrants. After finishing their terms of service, these Africans were accorded liberties such as the right …
A Tribute To Hope Lewis,
2018
Indiana University Robert H. McKinney School of Law
A Tribute To Hope Lewis, Karen E. Bravo
Georgia Journal of International & Comparative Law
No abstract provided.
The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act,
2018
William & Mary Law School
The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework,
2018
University of Maryland Francis King Carey School of Law
Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington
Maryland Law Review
No abstract provided.
Indefinite Detention, Colonialism, And Settler Prerogative In The United States,
2018
Georgia State University College of Law
Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito
Natsu Taylor Saito
The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …
