Archive for the ‘Race’ Category

BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

posted by Danielle Citron

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read the rest of this post »

  January 13, 2012 at 9:24 am   Posted in: Bright Ideas, Feminism and Gender, Privacy, Privacy (Consumer Privacy), Race, Technology, Web 2.0   Print This Post   No Comments

The meaning of the Three-Fifths Clause

posted by Kaimipono D. Wenger

It’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.

The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race. Read the rest of this post »

  September 19, 2011 at 12:11 pm   Posted in: Constitutional Law, History of Law, Race   Print This Post   32 Comments

Hot Summer Flashes, Black Urban Mobs

posted by Olivier Sylvain

  September 5, 2011 at 11:52 pm   Posted in: Constitutional Law, Culture, Current Events, First Amendment, Media Law, Philosophy of Social Science, Politics, Race, Social Network Websites, Sociology of Law, Technology, Web 2.0   Print This Post   8 Comments

Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone

posted by June Carbone and Naomi Cahn

Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

Read the rest of this post »

  August 28, 2011 at 3:21 pm   Posted in: Book Reviews, Family Law, Race   Print This Post   7 Comments

Critical Jewish Studies?

posted by David Schraub

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

Read the rest of this post »

  August 12, 2011 at 12:30 am   Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Race, Religion, Uncategorized   Print This Post   7 Comments

Constitutional Redemption

posted by Alexander Tsesis

Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

  August 1, 2011 at 9:22 am   Posted in: Civil Rights, Constitutional Law, Constitutional Redemption Symposium, History of Law, Law and Inequality, Legal Theory, Race   Print This Post   No Comments

UCLA Law Review Vol. 58, Issue 5 (June 2011)

posted by UCLA Law Review

Volume 58, Issue 5 (June 2011)

Articles

Melville B. Nimmer Memorial Lecture: What Is a Copyrighted Work? Why Does It Matter?	Paul Goldstein	1175
Equal Opportunity for Arbitration	Hiro N. Aragaki	1189
Asymmetrical Jurisdiction	Matthew I. Hall	1257

Comments

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism	Scot Rives	1303
Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees	CT Turney	1343

  June 29, 2011 at 11:42 pm   Posted in: Immigration, Intellectual Property, Law Rev (UCLA), LGBT, Race   Print This Post   No Comments

Will America’s Civil War Ever End?

posted by Taunya Banks

Seems I prematurely announced my departure as a guest blogger last week.  Concurring Opinions has kindly asked me to stay on for another month, so here is my first offering for May.

It recently occurred to me that there is a connection between the persistent belief of some Americans that President Obama is not a natural born citizen and continuing debates about the Civil War.  Both go to fundamental questions about national identity, citizenship and governance.  Almost a decade ago I wrote a quirky piece entitled Exploring White Resistance to Racial Reconciliation. The article was triggered by what I regarded as a shocking action by Congress, namely, the rejection of a 1997 proposal by a dozen Democrat and Republican congress members calling on Congress to issue an apology to the descendants of kidnapped West Africans for their enslavement.  In 2008, after it became apparent that then Senator Barack Obama would be the Democrat’s presidential nominee, Congress quietly issued an apology for slavery.  Ironically, President Obama is not descended from West Africans, or to my knowledge, slaves.

In my article I speculated that this proposal was rejected because most Americans remain woefully ignorant about the causes and conflicting political agendas surrounding the Civil War.  This ignorance has been reinforced, I theorized, by popular culture, particularly films like the pernicious Birth of a Nation or Gone with the Wind, that romanticize the “lost cause.”  I offered many proposals, including better education about the Civil War, its causes and effects.

Why, you may ask, am I blogging about “old” news?  Well, a study funded by the Pew Foundation and released last month found that most Americans still consider the Civil War relevant to “American politics and political life.”  As the 150^th anniversary of the War approached, two major newspapers, The Washington Post and The New York Times, featured series or periodic articles about the War.  The Post also hosts a blog, A House Divided, “dedicated to news and issues of importance to Civil War enthusiasts across the country and around the world.”  Even my local paper, The Baltimore Sun, has a series about the War.  Maryland, although a slave-holding border state, saw many battles during the War.  Further, Maryland considers the April 17, 1861 Baltimore Riot, when Union troops passing through the City were attacked by local confederate sympathizers, to be one of the War’s first conflicts.  I celebrate these educational efforts mentioned above because most Americans still do not fully understand the reasons for this war and why it continues to bedevil the Nation.

One of the most factious long-standing debates is over the causes of the War, namely, whether it was fought over slavery or states’ rights.  According to the Pew study, 48% of Americans surveyed think that states’ rights was the main cause of the War, while 34% said slavery was the cause. Documents linked in The Times, and essays by noted historians, acknowledge that states’ rights was an issue, but that the continuation of slavery was a primary triggering cause.   Even the State of Georgia, a former confederate state, finally conceded that slavery was the cause of the War.  Nevertheless, some Americans continue to reject the historical evidence.  For example, Baltimore Sun readers, in response to a columnist’s assertion that slavery was the cause of the Civil War, challenged and vigorously debated each other.  Commentators offer various, mostly benign, explanations for the reluctance to acknowledge slavery’s role in triggering the Civil War.

Still you might say, this too is “old” news that has nothing to do with President Obama, but I urge you to read on. Read the rest of this post »

  May 3, 2011 at 1:08 am  Tags: president obama  Posted in: Politics, Race   Print This Post   24 Comments

The Ministerial Exception Part III

posted by Caroline Mala Corbin

In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

Read the rest of this post »

  April 12, 2011 at 4:53 pm   Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Race, Religion   Print This Post   One Comment

Ministerial Exception Part II

posted by Caroline Mala Corbin

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

  April 6, 2011 at 6:02 pm   Posted in: Civil Rights, Constitutional Law, Employment Law, First Amendment, Race, Religion   Print This Post   7 Comments

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

  February 25, 2011 at 1:19 pm   Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court   Print This Post   No Comments

(A few reasons) why Angela Onwuachi-Willig should be appointed to the Iowa Supreme Court

posted by Kaimipono D. Wenger

Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court. 

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color. 

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

  January 31, 2011 at 4:24 pm  Tags: Courts, LGBT, Race  Posted in: Courts, Current Events, LGBT, Race   Print This Post   7 Comments

Gender Justice and Indian Sovereignty

posted by Kaimipono D. Wenger

It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.” Read the rest of this post »

  January 30, 2011 at 3:31 pm   Posted in: Civil Rights, Conferences, Feminism and Gender, Indian Law, Race   Print This Post   No Comments

Bright Ideas: Chamallas and Wriggins on The Measure of Injury

posted by Kaimipono D. Wenger

Today’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read the rest of this post »

  January 6, 2011 at 10:43 am   Posted in: Book Reviews, Bright Ideas, Feminism and Gender, Race, Tort Law   Print This Post   No Comments

Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

posted by Danielle Citron

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read the rest of this post »

  November 27, 2010 at 3:49 pm   Posted in: Anonymity, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Law and Inequality, Legal Ethics, Legal Theory, Politics, Psychology and Behavior, Race, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

College Preparedness, Law, and the Structure of Standards

posted by Craig Livermore

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

Read the rest of this post »

  November 11, 2010 at 2:32 pm  Tags: College Preparedness, Education, Education Law, Education Policy, Higher Education, Minorities and Education, Obama administration, Policy, Race and Education  Posted in: Civil Rights, Culture, Current Events, Education, Law and Humanities, Law and Inequality, Race, Uncategorized   Print This Post   No Comments

Guns & Katrina, Reconsidered

posted by Dave Hoffman

Remember when post-Katrina New Orleans turned into a teaching moment about the importance of using guns to protect yourself?  Over at the VC, David Kopel wrote (on September 5, 2005)

“Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen’s arrest and detention isn’t possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.”

The necessity of shooting looters was widely-discussed.  Kerr, Solove, Volokh, Muller and I all dissented.  It’s worthwhile, then, to read this article looking back five years later at what actually happened after the hurricane:

“The narrative of those early, chaotic days — built largely on half-baked anecdote and unfounded rumor — quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.

“As you look back on it, at the time it was being reported, it looked like the city was under siege,” said Russel L. Honoré, the retired Army lieutenant general who led military relief efforts after the storm.

Today, a clearer picture of post-Katrina violence is emerging, and it is an equally ugly one, including white vigilante violence, police killings, official cover-ups and a suffering population far more brutalized than many were willing to believe. Several police officers and a white man accused of racially motivated violence have recently been indicted in various cases, and more incidents are coming to light as the Justice Department has started several investigations into poststorm civil rights violations . . .

“One case is that of a former Algiers resident, Ronald J. Bourgeois Jr., who is white and accused of being part of one of the vigilante groups. He was recently indicted by the federal government on civil rights charges in the shooting of three black men who were trying to leave the city. According to the indictment, Mr. Bourgeois, who now lives in Mississippi, warned one neighbor that “anything coming up this street darker than a brown paper bag is getting shot.””

I don’t mean to blame any of the bloggers (like Glenn Reynolds or David Kopel) who called for looters to be shot on sight.  Obviously, they were writing about the facts as they knew them.  But the retrospective story is a sobering reminder that unleashing private violence – and encouraging armed self-help – doesn’t necessarily lead to the restoration of civic order.  It may, as it turns out, result in biased, erroneous, decision making and awful tragedy.

  August 26, 2010 at 7:26 pm   Posted in: Civil Rights, Current Events, Race   Print This Post   4 Comments

“Punishing the Poor” and “Texas Tough”

posted by Frank Pasquale

Many legal scholars wonder why even small steps toward sentencing reform are tough to make. The US has an extraordinary level of incarceration; “with about 1.6 million people in our penitentiaries and an additional 800,000 in our jails, the United States locks up its citizens at a higher rate than any other country in the world.” Are we simply worse people, or are there larger causes at work? I recently noticed two books that help frame the issue of US criminal justice in a larger context of economic change and inequality.

Loic Wacquant’s Punishing the Poor: The Neoliberal Government of Social Insecurity proposes that the “hyperinflation” of the US prison population results from a change in the state’s focus: from promoting economic security to promoting physical safety via a “zero tolerance” policy for even nonviolent offenses. As one reviewer explains,

The penal state, in Wacquant’s telling, has mushroomed up to take the place of the welfare regime, to control those populations at the margins of the market economy. In their classic book Regulating the Poor (1971), sociologists Frances Fox Piven and Richard Cloward argue that welfare rolls fluctuate in response to social unrest, swelling when the poor become politically aware and more difficult to pacify. Wacquant takes their claim a step further, suggesting that in a neoliberal age, poor people are not bought off—they are locked up.

According to Wacquant, media and law enforcement elites team up to “erect[] a garish theater of civic morality on whose stage political elites can orchestrate the public vituperation of deviant figures. . . .and close the legitimacy deficit they suffer when they discard the established government mission of social and economic protection.” Like the “security theater” lambasted by some anti-terrorism experts, the penal system explored by Wacquant is “about” far more than its stated purpose of keeping good citizens safe. Rather, it becomes what Wacquant calls “autophagous,” provoking a self-renewing cycle of recidivism, widening insecurity, and ever more crackdowns, by virtue of its very brutality. The book reminded me of Niklas Luhmann‘s social theory of “autopoetic systems,” which constitute and reconstitute themselves according to an inner logic that may have little to do with the overall health or welfare of society.

I was reminded of Wacquant’s book when I heard an extraordinary C-Span lecture by Robert Perkinson, the author of Texas Tough: The Rise of America’s Prison Empire. I’ve previously speculated on why Texas is such a darling of the Wall St. Journal editorial page, and Perkinson’s book helps piece together more clues on the state’s role in modeling penitentiary policies for the nation. Like Wacquant, Perkinson focuses on the role of race and inequality in explaining prison demographics:

More than half a century ago, at the height of Jim Crow, African Americans were going to prison at roughly four times the rate of whites; now the black imprisonment rate is seven times that of whites. If present trends continue, a third of all black men can expect to go to prison at some point in their lives. Millions more, due to felony disenfranchisement, will lose the right to vote, one of the dearest prizes of the black freedom struggle. My book, Texas Tough, is an attempt to reckon with . . . the bleak reality of persistent prejudice and unequal justice. . . . [T]he book homes in on the entwined histories of racism and the law, uncovering the origins of America’s exceptionally harsh approach to criminal justice in the broken promises and iniquitous profits of the young republic.

Texas Tough . . . relates the troubled life story of a single southern prison system, one that started out with the construction of a pine-log barracks in 1842 and that has grown into the largest, harshest incarceration complex in the United States. It describes how a plantation-based penal system, long dismissed as a brutish backwater, managed to become a pacesetter in hardline prison management; how a retributive ethos of criminal justice that developed on slavery’s frontier eventually took hold nationwide. . . . In short, it explains how the land of the free became the most incarcerated society in the history of democratic governance.

Perkinson describes the remarkable role of slave and quasi-slave labor in Texas; as I recall from his lecture, the state capitol building was first built with slave labor, and then after it was burned down during the Civil War, it was re-built with “leased convicts.” Apparently there are also farms in Texas with crops which have never been picked with “free labor;” they transitioned from slave plantations to leased convicts to prison labor. Both facts haunted me as I recently visited UT Austin for a health law conference, with the capitol building often in sight.

Both Wacquant’s and Perkinson’s book focus on how one system of punishment can rapidly become a “model.” For Perkinson, Texas displaced more humane models of rehabilitation to become a model of “getting tough” on prisoners. Wacquant worries that the resulting US system of punishment has become a model for the EU, providing parties of the right with a new model for social order that parties of the left feel powerless to critique or resist. Both authors’ theories of “contagion” reminded me of two recent works; Spencer Waller’s The Law and Economics Virus and Joe White’s treatment of stories in his work on health care finance. Building on models of memes from Dawkins and Balkin, Waller shows how certain fields are uniquely susceptible to legal economic modeling, and others have inherent structural features that resist it. Joe White shows how “herd behavior” can follow mass adoption of certain stories about efficiency and effectiveness, often in the absence of compelling information about their results:

The most striking aspect of the accounts of market behavior in health care in the 1990s is that activity appears to have been influenced by shared stories, which rose, fell, and were changed in the health policy and business communities. . . . The free flow of capital did not serve health care values such as cost control and access. . . . Behavior followed stories that in significant cases turned out to be untrue. The health care herd stampeded in one direction and then another.

The prison policy stampede appears to only be going in one direction, but may end up no more effective than the managed care merry-go-round of the 1990s (except, of course, for producing profits). My sense is that anyone who opposes prison reform will have to reckon with Wacquant’s and Perkinson’s arguments.

  June 14, 2010 at 1:47 pm   Posted in: Criminal Law, Economic Analysis of Law, Law and Inequality, Race   Print This Post   2 Comments

A map of slave states

posted by Kaimipono D. Wenger

Quick question: How many states had slave laws, at any point from 1776 independence to 1865? Think about it, and then click the link to continue. Read the rest of this post »

  May 6, 2010 at 10:18 pm   Posted in: History of Law, Race   Print This Post   5 Comments

Reparations and Gates-keeping

posted by Kaimipono D. Wenger

Henry Louis Gates writes in the New York Times that reparations discussion should include a focus on culpability of Black slave traders in Africa – a move which ultimately serves to weaken many reparations arguments. Why is the President’s advisor making these kinds of arguments — and why now? I can’t say for sure, but I suspect that it relates to the existing political environment.

A number of right wing critics have recently claimed that President Obama is seeking reparations. This includes Glenn Beck and Rush Limbaugh who have both repeatedly called health care reform a form of stealth reparations. The apparent reasoning is that health care reform will proportionately benefit Blacks as a group more than whites, because Blacks have a higher rate of uninsured individuals.

The underlying insurance statistics are clear enough — Black individuals lacking insurance make up about 19% of the group population, while the comparable percent for whites is about 10%. In fact a number of advocates (including me) have argued that this and other major statistical gaps are reasons to support reparations, because they show how slavery and Jim Crow inflict continuing harm today.

Beck and Limbaugh have flipped the argument around. Read the rest of this post »

  April 24, 2010 at 10:10 pm   Posted in: Civil Rights, Politics, Race, Reparations   Print This Post   11 Comments

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