Law and Race Commons^™

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Journal Articles

The Voting Rights Act of 1965 has been described as the "crown jewel" of the Civil Rights Movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the President Bush's Justice Department to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to explain how this …

Why Police Learn From Third-Party Data, Randall K. Johnson

Faculty Works

This essay argues that third-party data collection, particularly of administrative complaints and departmental audit information, holds greater promise than lawsuit data collection. It does so by asserting that third-party data collection is more useful for three reasons. First, third-party data collection prevents manipulation by individual police officers and law enforcement agencies. Second, it assures that police behavioral trends are actually identified. Lastly, third-party data collection helps to deter published § 1983 cases. The essay, however, only models and tests the final claim.

Complementarity And Post-Coloniality, Nirej S. Sekhon

Faculty Publications By Year

The International Criminal Court’s jurisdiction is complementary to that of national criminal jurisdictions. While most agree that complementarity is a cornerstone principle, debate continues as to what precisely it should mean for the ICC’s relationship to national criminal justice actors. “Positive complementarity,” a view many commentators hold, suggests that the ICC should use its power to educate, persuade, and prod states parties to undertake international criminal law investigations. For positive complementarity’s more optimistic proponents, the future holds promise for a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating international criminal …

Invisible Histories & The Failure Of Protected Classes, Jill M. Fraley

Scholarly Articles

Our legal history suggests that the evolution of our discrimination law has been and likely should be the continuing enumeration of protected classes. There is, however, a counter-intuitive problem: protecting specific groups suggests to the public that everyone else is fair game, providing implicit legitimacy to other harmful stereotypes. To illustrate this problem this article constructs the legal history of stereotypes and prejudicial acts against Appalachians, a marginalized group that does not fit neatly in the protected categories. Considering then how our courts have treated the relationship between stereotypes and discrimination, along with recent sociological evidence, this article suggests that …

It's [Not] A Black Thing: The Black/Gay Split Over Same-Sex Marriage - A Critical [Race] Perspective, Adele M. Morrison

Law Faculty Research Publications

No abstract provided.

Intersectionality: Mapping The Movements Of A Theory, Devon Carbado, Kimberlé W. Crenshaw, Vicki M. Mays, Barbara Tomlinson

Faculty Scholarship

Very few theories have generated the kind of interdisciplinary and global engagement that marks the intellectual history of intersectionality. Yet, there has been very little effort to reflect upon precisely how intersectionality has moved across time, disciplines, issues, and geographic and national boundaries. Our failure to attend to intersectionality’s movement has limited our ability to see the theory in places in which it is already doing work and to imagine other places to which the theory might be taken. Addressing these questions, this special issue reflects upon the genesis of intersectionality, engages some of the debates about its scope and …

“You Will See My Family Became So American”: Immigration, Racial Visibility, And Specular Citizenship, Sherally Munshi

Studio for Law and Culture

This paper explores the vexed relationship between legal form and personhood that arises in the context of Indian immigration and naturalization in the early twentieth century. In 1932, Dinshah P. Ghadiali received notice that the government was seeking to cancel his citizenship on grounds of “racial ineligibility.” In his self-published writing about the trial, Ghadiali wondered whether he been singled out for persecution by professional rivals. In fact, he had been caught in a larger campaign to denaturalize citizens of Indian origin after the Supreme Court, in United States v. Bhagat Singh Thind (1923), determined that “Hindus” were racially ineligible …

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

Landscape Fairness: Removing Discrimination From The Built Environment, Stephen Clowney

Utah Law Review

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of …

The Court's Denial Of Racial Societal Debt, Kimberlé W. Crenshaw

Faculty Scholarship

In this year of civil rights anniversaries, the narrative of racial progress has been tempered by the Supreme Court’s game-changing decisions this past summer. The notion that “we’ve come a long way and we have much more work to do” sounds ever more like wishful thinking in the face of a Supreme Court that is no longer an active contributor to the cause. Having abandoned its unprecedented insistence that white supremacy be upended root and branch, the current Court’s boldness is measured by its audacious efforts to reverse engineer the transformative mechanisms these anniversaries celebrate.

Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr

Articles

The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and …

Latina And Latino Judges: Changing The Complexion Of The Bench, Mary Dolores Guerra

Florida A & M University Law Review

Although having a diverse bench is instrumental to a fair judicial system, the first Mexican American was not appointed to the federal bench until 1961. In that year, President John F. Kennedy appointed Reynaldo G. Garza, to the U.S. federal bench as a district court judge. Judge Garza hoped that by becoming an "effective jurist" he would quell any scrutiny over his appointment and, moreover, "encourage [the] appointment of other qualified Mexican Americans to the federal bench." Judge Garza was the only Latino appointed to the federal bench until 1979 when President Jimmy Carter appointed several Latinos to the bench, …

A Latina Law Professor's Personal Perspective After The Zimmerman Trial Verdict, Maritza I. Reyes

Journal Publications

No abstract provided.

Black Women's Post-Slavery Silence Syndrome: A Twenty-First Century Remnant Of Slavery, Jim Crow, And Systemic Racism--Who Will Tell Her Stories?, Patricia A. Broussard

Journal Publications

One hot summer's day in the late 1950s, a young mother put her three young children down for a nap. She also bathed and prepared four of her sister's children for naptime. This young woman had volunteered to care for her nephew and nieces while their mother, her younger sister, was in the hospital delivering her fifth child. A short while after putting all of the children in their beds, the children's father, her brother-in-law, knocked on the door. The young woman assumed that he had come over to see his children and to bring them news of their mother …

Shattered Dreams: An Analysis Of The Georgia Board Of Regents' Admissions Ban From A Constitutional And International Human Rights Perspective, Azadeh Shahshahani, Chaka Washington

UC Law Journal of Race and Economic Justice

Access to higher education for undocumented immigrants is a highly debated issue across the country. While some states have been more inclusive of undocumented students, other states have implemented laws which make higher education unattainable for this group. In 2008, South Carolina enacted House Bill 4400 which bars undocumented immigrants from attending public colleges and universities. The University System of Georgia is, so far, the only other public university system to enact a policy which outright bans undocumented students from certain colleges.

This article begins by discussing the Georgia Board of Regents' ban from a constitutional perspective, applying an equal …

A Local Official's Guide To Language Access Laws, David Jung, Noemi Gallardo, Ryan Harris

UC Law Journal of Race and Economic Justice

Sharp growth in immigration has introduced California to a large number of persons who do not speak and understand English well enough to make use of basic social services. These individuals may not know what public services are available, may not be able to communicate with local officials, and may not receive information that local agencies release to the public. Local agencies throughout California should ensure that all their services are accessible to persons for whom English is a barrier to understanding.

This article first explains why the California and federal constitutions forbid laws requiring that services be provided in …