Archive for the ‘Race’ Category

What would LBJ do?

posted by Spencer Waller

I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

  October 31, 2009 at 6:58 pm  Tags: Civil Rights, filibuster, Harry Reid, health care, LBJ, Lyndon Johnson, Majority Leader, Master of the Senate, Robert Caro, Senate  Posted in: Civil Rights, Current Events, Health Law, History of Law, Politics, Race   Print This Post   No Comments

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

posted by Spencer Waller

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

  October 6, 2009 at 9:55 am  Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics  Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court   Print This Post   One Comment

UCLA Law Review 56:6 (August 2009)

posted by UCLA Law Review

Volume 56, Issue 6 (August 2009)

Articles

Overcoming Overdisclosure: Toward Tax Shelter Detection (pdf)
Joshua D. Blank

First Amendment Enforcement in Government Institutions and Programs (pdf)
Gia B. Lee

Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs (pdf)
Robert Spoo

Comments

Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements (pdf)
Jessica Wang

Narrowing the Definition of “Dwelling” Under the Fair Housing Act (pdf)
Karen Wong

Addressing Youth Bias Crime (pdf)
Jordan Blair Woods

  September 2, 2009 at 3:17 pm   Posted in: Constitutional Law, Contract Law & Beyond, Corporate Law, Intellectual Property, Law Rev (UCLA), Race   Print This Post   No Comments

Assimilation: What Will It Mean for Affirmative Action?

posted by Solangel Maldonado

Orlando Patterson, the well-respected Harvard sociologist, wrote an article in the New York Times this week in which he argued that immigrants from Latin America and Asia will assimilate into mainstream American culture (whatever that might be) in the same way as European immigrants from the late 19th and early 20th century had. Maybe he’s right. Although social scientists have argued that Latino and Asian immigrants will not be able to assimilate as rapidly as Irish, Italian, and Jewish immigrants because the former are not white, there is some evidence suggesting that the children of Latino and Asian immigrants are assimilating quite well. They tend to be English-dominant (many do not speak or understand their parents’ native language), they have high intermarriage rates (with whites primarily but also with other groups), and many reside in integrated or predominantly white neighborhoods—all indicators of assimilation. Many Latinos (approximately 50% according to Patterson) also self-identify as white, suggesting that their experiences might not be that different from those of European immigrants.

These facts notwithstanding, many Latino and Asian-American scholars would disagree with Professor Patterson’s assertion. They would point to continuing discrimination and evidence of implicit biases against Latinos and Asian-Americans and the widespread perception that these groups are not “really American,” as illustrated by the question “no, where are you really from?” when a person who does not look Black or White says that he is from Texas, California, or Kansas.

Read the rest of this post »

  August 21, 2009 at 12:55 pm   Posted in: Race   Print This Post   6 Comments

Racial Profiling Still Pervasive in United States: Does Anyone Care?

posted by Kevin Johnson

Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?

  July 4, 2009 at 6:32 am   Posted in: Civil Rights, Criminal Procedure, Race   Print This Post   No Comments

Google Earth and Caste Discrimination in Japan

posted by Jacqueline Lipton

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…

  May 27, 2009 at 8:09 am  Tags: caste, discrimination, Google, Japan, maps  Posted in: Cyberlaw, Google & Search Engines, Race, Technology, Web 2.0   Print This Post   2 Comments

Knowledge of Jim Crow events: A quick, informal survey

posted by Kaimipono D. Wenger

I’m curious as to what level of knowledge people have of some important Jim Crow events. If you’ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.  Feel free to do so anonymously or pseudonymously.  I’m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense. Read the rest of this post »

  May 18, 2009 at 11:15 pm  Tags: Civil Rights, jim crow, Race, survey  Posted in: Civil Rights, Race   Print This Post   38 Comments

Race Matters

posted by Tristin Green

On the heels of Obama’s election, many Americans are wondering whether race really matters anymore. Are we on the edge of a color-blind society? Have whites moved beyond race as a per se factor in shaping preferences? A study titled “In the Eye of the Beholder: Racial Beliefs and Residential Segregation” in the latest volume of the Du Bois Review reminds us that race continues to matter, and that it continues to matter in part as a consequence of whites’ racial stereotypes and negative racial beliefs.

Over the past several years, two prominent studies have demonstrated that race matters to employers in hiring. In one study, published in 2003 in the American Journal of Sociology, employers responded negatively to Black applicants (White applicants who reported a criminal record, for example, were more likely to be called back for a second interview than were Black applicants with no criminal record); in another, published in 2004 in the American Economic Review, they responded negatively to African American-sounding names on resumes (White applicants on average had to send out ten resumes to get a call for a job interview; Black applicants with a resume identical to that of the white applicants, except for name, had to send out fifteen resumes to get a call).

The recently published Du Bois Review study shows a similar reaction to race by whites in the housing market. The researchers constructed videos depicting different neighborhood social-class levels. Each video showed five hired actors as “residents” of the neighborhoods, picking up their mail, talking with each other, etc. For each social-class level, the researchers created videos with exclusively Black residents, with exclusively white residents, and with a mix of Black residents and white residents. The residents were otherwise matched in clothing style, age, and sex; the only difference was their race. See a sampling of the videos.

The finding? From the authors:

. . . . White respondents who saw a neighborhood with only Black residents evaluated it significantly more negatively than similar Whites who saw exactly the same neighborhood but with White residents. The skin color of our resident actors gave White respondents information they used to judge whether the homes were expensive or moderate in cost, whether the neighborhood was safe, whether the schools were good, whether housing prices would likely to go up or stagnate in the future.

  January 27, 2009 at 7:52 pm   Posted in: Race   Print This Post   One Comment

Spike this Heel!

posted by Susan Scafidi

Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

 

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.

I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?

To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.

Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.

  October 1, 2008 at 2:25 pm   Posted in: Culture, Intellectual Property, Race, Religion   Print This Post   7 Comments

Defamation by PhotoShop?

posted by Frank Pasquale

At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you’re a friend or enemy of the network. Or at least that’s how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.

Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)

Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to “objectively” present images? And, returning to defamation, is it possible to argue a) that the distorted image is a “lie” about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?

Read the rest of this post »

  July 5, 2008 at 10:50 am   Posted in: Media Law, Movies & Television, Privacy, Race   Print This Post   4 Comments

Little Brother

posted by Deven Desai

Cory Doctorow’s latest novel, Little Brother, is technically a young adult novel, but there is something in there for anyone interested in cyberlaw, security, national security law, and oh yeah, a rather fun, although at times scary, tale. In classic Cory fashion, he has made the book available for free (yes well before law profs such as Benkler and Zittrain did so, Cory has been a leader in the world of I-make-money-by-giving-away-my-creations). He also allows people to remix and share the new work. The downloads and remixes are licensed under a Creative Commons Attribution-Noncommercial-ShareAlike license. Now that is a business model of the new economy. For those wondering whether this approach works, it does for Cory if making the New York Times Kids Bestseller list matters. (Scoff at your own risk. Remember kids are a tremendous market). So on to the book.

Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini

The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

  May 16, 2008 at 12:50 pm   Posted in: Articles and Books, Constitutional Law, Cyberlaw, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Race   Print This Post   One Comment

Pew on Race and Class Issues

posted by Deven Desai

NPR’s piece Redefining What It Means to Be Black in America examines a new Pew Research Center poll regarding perceptions within the African-American community about the community. From the summary: “African Americans see a widening gulf between the values of middle class and poor blacks, and nearly four-in-ten say that because of the diversity within their community, blacks can no longer be thought of as a single race.” The full report is here. The NPR story provides an overview of the poll which among other findings indicates that “67 percent of black men and 74 percent of black women think rap music is a bad influence on black America,” “37 percent of African Americans now agree that it is no longer appropriate to think of black people as a single race,” and “53 percent of black Americans now agree that ‘blacks who can’t get ahead are mostly responsible for their own condition.’” I have not read the report yet. There could easily be flaws in the methods used. Still, for those interested in race issues, my guess is this report provides numbers with which one will have to engage.

  November 14, 2007 at 2:07 pm   Posted in: Race   Print This Post   No Comments

The Noose

posted by Timothy Zick

That old instrument of death the noose has been much in the news of late. Saddam Hussein and his henchmen have gone to the gallows. Clarence Thomas continues to rail against his “high-tech lynching” at the hands of the Senate Judiciary Committee. And in the past few months, actual nooses have been found hanging in a variety of places — at high schools and universities, in workplaces and police stations, from the backs of pickup trucks, and near Ground Zero in New York City. Many have surmised that the appearance of these nooses is related to the controversy sparked in Jena, Louisiana when white students hung nooses from a tree near a public school. What we have is probably some combination of disgruntled students, cowardly racists, and “copycats.” Or perhaps, as Peter Applebome of the New York Times suggested, “maybe it’s just the distorting mirror of the never-ending media cavalcade, where any moron with a Sharpie and a length of cord from Home Depot can make a statement heard round the world.” [The noose is not the only symbol of hate making a comeback. The swastika has been showing up with increasing frequency in some communities; it has been spotted at synagogues and even carved into a crop circle in New Jersey].

Whatever the case, the seeming resurgence of the noose is a disturbing development. Its intentional use as a symbol of racial hatred and terror is of course utterly comtemptible. There have always been, and likely always will be, those who will make such cowardly gestures in an effort to intimidate. More disturbing on some level is the fact that there appear to be some (perhaps many) people who are either not aware of the noose’s disgraceful history, or who may believe that being forced to acknowledge that experience forces political correctness upon them. Some of the co-workers involved in the incidents noted above seemed to think that hanging a noose was a “joke.” Others have suggested that perhaps the media is hyping noose hangings in an effort to shock readers into caring about race. After all, as Alex S. Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard, is quoted in the New York Times saying, ”This is comparable to name calling” . . . ”It’s important to look at what it means and also what it doesn’t mean.”

We certainly ought to consider what hanging a noose signifies. I suggested in a paper that ethnographic methods may be useful in assessing the meaning of symbols like the confederate flag and symbolic acts like cross burning. Anyone who doubts the enduring and powerful hatred and terror associated with this symbol (and who cannot be bothered to read one of many excellent accounts of the Jim Crow South) should at least peruse Without Sanctuary: Lynching Photography in America (2000), a book I stumbled upon years ago and have never forgotten. Of course, the noose, like other symbols, is polysemous. The context of the display matters. There are certain contexts — historical exhibits on Jim Crow violence or the death penalty, tributes to the Wild West, and perhaps even a celebration of Halloween fright — in which the symbol is intended to convey some non-threatening meaning. Even so, hangers of nooses — in particular those who live in diverse neighborhoods or work in diverse environments — ought to understand how this symbol is interpreted by many, if not most, African-Americans. Those noose-hangers who are fully aware of and even embrace the terrorism of the symbol should not count on any First Amendment protection for their “message.” Hanging a noose with the specific intent to intimidate is a true threat. What to do about the deep-seated undercurrent of racism that the noose’s resurgence seems to signify is a much more complicated question — and not, as our history demonstrates, one that will be resolved solely by passing hate crimes laws.

  October 23, 2007 at 3:00 pm   Posted in: Race   Print This Post   6 Comments

Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility

posted by Nate Oman

In this week’s episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

  September 24, 2007 at 12:14 pm   Posted in: History of Law, Law School, Law Talk, Race   Print This Post   No Comments

Saggy Pants and the First Amendment

posted by Neil Richards

The city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage – something like “I am offended by the dress of that young man over there.” Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.

But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression – they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There’s also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.

I think that in the long run, we’ll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley’s swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.

  September 19, 2007 at 12:50 pm   Posted in: Culture, Current Events, First Amendment, Politics, Race   Print This Post   17 Comments

Sex, Laws, and Videotape (Genarlow WIlson Edition)

posted by William McGeveran

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

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  July 17, 2007 at 12:05 pm   Posted in: Civil Procedure, Criminal Law, Current Events, Feminism and Gender, First Amendment, Privacy, Race   Print This Post   6 Comments

Why So Few Black Ballerinas?

posted by Solangel Maldonado

There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”

I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked “The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?

  May 7, 2007 at 10:48 am   Posted in: Feminism and Gender, Race   Print This Post   7 Comments

China Tightens Restrictions on International Adoption—Will Demand for African-American Children Increase?

posted by Solangel Maldonado

Thank you for the introduction and the opportunity to guest blog this month. I look forward to everyone’s comments.

The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. Department of State, China now requires that all foreigners seeking to adopt be 50 years of age or younger. They also must be free of certain medical conditions such as “mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis” or a “Body Mass Index (BMI) of 40 or more.” Persons with severe facial deformities, limb paralysis or dysfunction, or blindness (even if only in one eye) are also disqualified.

Many sending countries place even greater restrictions on foreigners seeking to adopt. In addition, Russia has recently stopped accepting applications from American adoption agencies as it attempts once again to curb rampant corruption in its adoption system. Guatemala has similarly announced that it will impose greater restrictions on international adoptions as it attempts to comply with Hague Convention on Intercountry Adoption. As a result, many Americans must come to terms with the reality that their odds of creating or expanding their families through international adoption anytime soon might be reduced.

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  May 4, 2007 at 2:32 pm   Posted in: Family Law, Race   Print This Post   8 Comments

Don Imus and Megan Kanka In A Soundbite Nation

posted by Dan Filler

Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here’s a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because “I never would have said anything that stupid and offensive.” They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event – institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America’s day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka’s brutal abduction and killing. As bad as that individual case was, the public debate and legislative response – targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson’s article remains a critical piece of this literature.)

As a general matter, if CNN can’t describe an issue in 60 second or less, it’s not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.

  April 11, 2007 at 12:05 am   Posted in: Race, Sociology of Law   Print This Post   5 Comments

March Madness, part 2

posted by Alfred Yen

A propos of some of the comments made in response to my earlier March Madness post, readers may be interested in the recent Graduation Rate Study of NCAA Div. 1 Tournament teams, authored by Dr. Richard Lapchick of the Institute for Diversity and Ethics in Sport.

In a nutshell, athlete graduation rates aren’t very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn’t a typo. It’s “zero.” At the other end of the scale, Holy Cross (86%) and Butler (82%) led the honor role. Lapchick also lamented a significant disparity in the graduation rates of whites and African-Americans.

Granted, graduation rates don’t tell you everything about a program’s commitment to the student-athlete, but it’s striking how low some of the graduation rates are. Hmmm….now maybe this will lead to a new way to fill out those brackets….

  March 12, 2007 at 9:22 pm   Posted in: Culture, Race   Print This Post   One Comment

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