Category: Race

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UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)
Articles

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010

 

Comments

Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134

 

 

 

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Identity Performance as a Bottleneck to Employment Opportunity

In his timely and provocative book, Professor Joey Fishkin makes an important intervention to anti-discrimination law praxis and theory. Poignantly, he observes that in developing anti-discrimination legislation and doctrine, policy makers as well as judges have largely focused on either eliminating or diminishing severe, pervasive, and arbitrary bottlenecks in the opportunity structure as opposed to focusing singularly on the achievement of equal outcomes. He defines bottlenecks as a “narrow place in the opportunity structure through which one must pass in order to successfully pursue a wide range of valued goals.” (Page 13). Professor Fishkin identifies three types of bottlenecks—“qualification,” “developmental,” and “instrumental good”—that policy should address in educational and employment contexts to bring about “equality pluralism”: “[the] opening up a broader range of opportunities for everyone.” (Page 2). As a race and law and employment discrimination law scholar, I am particularly interested in how Fishkin’s “anti-bottleneck” principle applies to arbitrary “qualification bottlenecks” in the employment context. Indeed, my scholarship on grooming codes discrimination illuminates how an obscured yet severe and pervasive “qualification bottleneck”—(non)conformity with racialized and gendered identity performance standards imposed by employers (which are reified within anti-discrimination jurisprudence like Title VII)—constrains or widens one’s range of employment opportunities.In this post, I will draw upon my scholarship on grooming codes discrimination to briefly explicate how one’s ability to navigate and negotiate identity performance demands limits or increases employment opportunities. Read More

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.

 

Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.

 

The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.

 

Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.

 

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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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Are any white people poor?

Today’s New York Times lead story, “Millions of Poor Are Left Uncovered by Health Law,” reports on the devastating effect that states’ decisions not to expand Medicaid is having on poor people.  This article is accompanied by an image – on the jump page 18 in print and featured online – of two poor families, one in Mississippi and one in Texas.  Neither family is white.  

The imagery leads the reader to presume that white people are unaffected by the failure to expand Medicaid and also perpetuates the general stereotype that most poor people are Black or Latino.  The census figures released in 2013 tell a different story:  18.9 million non-Hispanic whites live in poverty and 8.4 million live in deep poverty.  The next largest demographic group living in poverty is Latino – with 13.6 million living in poverty and 5.4 million living in deep poverty.  The smallest group of people living in poverty – by over 8 million — are Black people, with 10.9 million living in poverty and 5.1 living in deep poverty.  These numbers are staggering and shameful.  And it is true that a larger proportion of African Americans and Latinos live in poverty than whites by a significant margin.  However, the decision to depict only Black and Latino families in an article about poverty is itself problematic on a number of fronts.

Living in poverty should not be seen as an individual or group failure.   Most of us have lived in poverty at some point in our own lives or in our families’ history.  And undoubtedly the authors of the article and the editors who chose the picture have sympathy for poor people and hope that their news story and the image will elicit concern and moral outrage.   This result is unlikely.  Instead, research in social psychology suggests that news stories and images of this sort generally have exactly the opposite effect.

In an article entitled Justifying Inequality:  A Social Psychological Analysis of Beliefs about Poverty and the Poor,  Heather Bullock at the University of California, Santa Cruz explains that:  “single mothers and ethnic minorities, most notably African Americans, are the public face of poverty. Consequently, poverty is viewed not only as a “minority” problem (Gilens 1999; Quadagno 1994) but a reflection of weak sexual mores and the decline of the nuclear family (Lind 2004; Orloff 2002). Stereotypes about the poor and ethnic minorities mirror each other with intersecting characterizations including laziness, sexual promiscuity, irresponsible parenting, disinterest in education, and disregard for the law.”  So the imagery in the NYT article and the discussion of the particular effects on single mothers and “poor blacks” simply confirms negative stereotypes.   And the stereotypes are not rooted in fact.    The vast majority of African Americans and Latinos in the United States — over 70% — are not poor.

This article and many others in the media contribute to a set of negative stereotypes about people of color and render invisible the enormous numbers of whites who are poor.  Sadly, the combined effect, as Bullock explains, appears to be a growing tolerance for economic inequality and a willingness to support decisions that harm the poor (such as the rejection of Medicaid expansion).

The negative stereotypes, as I will discuss in future posts, underlie a set of psychological phenomena such as implicit bias, that underlie discriminatory behavior even among those with egalitarian values and create significant obstacles for progress toward racial equality.   As an academic and  as a civil rights litigator in my previous life, I have focused on legal and policy change as a means toward racial equality.  More recently, I have been part of a consortium, the American Values Institute, linking social scientists with lawyers, legal academics, and the media to recognize the significance of culture.  Law, as we all know, is in part a creature of culture.  So long as our culture is infused with distorted facts and images about race, law reform is a vastly more difficult task.

 

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Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities

Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?

All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.

The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.

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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.

 

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UCLA Discourse: Trayvon Martin & Implicit Bias

Vol. 61, Discourse

The killing of Trayvon Martin in 2012 and recent verdict in the trial of George Zimmerman has generated intense national debate.  Mr. Zimmerman’s verdict has not ended the discussion, but instead caused of a firestorm of conversation in the national media.

In light of this debate, we offer a 2012 essay published by two UCLA Law alums discussing the concept of implicit bias and its relationship with gun violence.  The essay remains timely event a year after its publication, and can be found here.