Law and Race Commons^™

Free Exercise, The Respect For Marriage Act, And Some Potential Surprises, Mark Strasser

Cleveland State Law Review

Congress recently passed the Respect for Marriage Act to assure that certain marriages would remain valid even if the Supreme Court were to overrule past precedent and hold that the Constitution does not protect the right to marry a partner of the same sex or of a different race. However, the Act, as written, may not offer protection for certain same-sex or interracial marriages and may open the door to the federal protection of plural marriages, congressional intent notwithstanding, because of the Court’s increasingly robust free exercise jurisprudence.

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Deny, Defund, And Divert: The Law And American Miseducation, Janel A. George

Georgetown Law Faculty Publications and Other Works

Racial inequality in public education is not inevitable, it is constructed. The law has been elemental in crafting racial inequality in public education. In this Article, I posit that lawmakers seeking to entrench racial inequality in and through public education do so by enacting laws designed to deny Black children access to education, defund public schools disproportionately attended by Black children, and divert many Black educators away from the public education system. This Article draws a through-line between laws enacted to prevent desegregation in the aftermath of the Brown v. Board of Education ruling—an era known as massive resistance—and recently …

A New Private Law Of Policing, Cristina Carmody Tilley

Faculty Publications

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Fordham Law Review

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Cardozo’S Race And The Law Course Offerings Give Students A Unique Chance To Learn About How To Be An Anti-Racist Future Lawyer, Benjamin N. Cardozo School Of Law

Cardozo News 2024

In fall of 2021, Cardozo Law announced new initiatives and expanded course offerings to acknowledge and work to eradicate systemic racism by ensuring that Cardozo graduates are culturally competent and well-educated on issues of discrimination. Since then, the law school has remained steadfast in its commitment to educating students in ways that center black, indigenous and other people of color (BIPOC).

Can We Really Be The Change We Wish To See? The Inherent Limitations Of Citizen Suits In Remedying Environmental Injustice Under The Clean Air Act, Alexandra M. George

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Arizona V. Navajo Nation, Sarah K. Yarlott

Public Land & Resources Law Review

Arizona v. Navajo Nation clarified the United States’ trust duties to protect tribal water rights under the Winters doctrine and the 1868 Treaty with the Navajo. Under the Winters doctrine, Indian reservations are permanent homes that include an implicit reservation of water rights. However, Winters did not elaborate on the United States’ role in securing those rights. In Navajo Nation, the Court settled whether the United States has an implied duty under its trust obligations to take affirmative steps in securing water rights for tribes; the Court held no such implied duty exists.

Maurer Blsa Earns Midwest Chapter Of The Year, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The Black Law Students Association at the Indiana University Maurer School of Law has earned national recognition, taking home Medium Chapter of the Year honors at the 56th Midwest BLSA Regional Convention in early February.

The Midwest BLSA community includes dozens of chapters at law schools from Colorado to Ohio, including nearly all of the schools in the Big Ten conference.

“Our Black Law Students Association isn’t just one of the best in the Midwest, it’s one of the best in the country,” said Indiana Law Dean Christiana Ochoa. “Congratulations to Nashuba Hudson, the executive board, and all who have …

Criminalizing Race: How Direct And Indirect Criminalization Of Racial “Status” Constitutes Cruel And Unusual Punishment, Delphine Brisson-Burns

UC Law Journal of Race and Economic Justice

Eighth Amendment Jurisprudence proscribes criminalization based on “status.” Based on United States Supreme Court case law, for the purposes of this paper, “status” is understood to mean an “ongoing state of being.” This paper argues that race is “status” and thus criminalizing people of color based on race violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Further, in the United States, racial “status” is criminalized both directly and indirectly. Racial “status” is criminalized directly by police officers’ frequent use of racial profiling to build criminal cases against people of color. On the other hand, racial status is …

Ciudadanos Sin Derechos: The Plight Of Puerto Rican Prisoners, Maylee Carbajal

UC Law Journal of Race and Economic Justice

No abstract provided.

After The Demise Of Affirmative Action, Ensuring Equitable Access To Educational Opportunities, Anna Gorman-Huang, Peter Henry Huang

UC Law Journal of Race and Economic Justice

On June 29, 2023, the United States Supreme Court held in two related cases that race-based affirmative action in college admissions is unconstitutional, because it violates the Equal Protection Clause of the 14th Amendment. What is next in (higher) education after the Supreme Court’s rulings in two related cases brought by Students for Fair Admissions? The decisions may dramatically transform college admissions and even how universities think about allocating their resources and about their role in a democratic society. Even now, the Court’s holdings are rippling past highly selective college campuses to corporate boardrooms, non-profits, and state legislatures.

Despite the …

A Critical Race Theory Analysis: The Role Of Racialization, The White Racial Frame, And Institutional Power In California Eugenics Sterilizations, Nicole Sequeira Tashovski

UC Law Journal of Race and Economic Justice

No abstract provided.

Masthead

UC Law Journal of Race and Economic Justice

No abstract provided.

Singing The Force Of The Imagination: How To Wonder About The Emotional-Reportage In Immigration Advocacy, Joshua J. Schroeder

UC Law Journal of Race and Economic Justice

In the years leading up to July 4, 1776, Phillis Wheatley bid the imaginations of the American Revolutionaries to spring open by shouting: “Imagination! Who can sing thy force?” Wheatley defined the imagination as the leader of the mental train, and, according to Ciceronian principles, she demonstrated that the imagination is the singular facilitator of human action. Despite numerous calls to venerate American originalism over the past several decades, the founding concept of the imagination remains an underdeveloped topic in the legal field, even while it reigns over the decision-making processes of all U.S. legislators, administrators, and judges.

However, on …