Archive for the ‘Race’ Category

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

Will Latinos Check Black on the Census?

posted by Solangel Maldonado

Last week, I noted that conceptions of race in Latin American are different from those commonly held in the U.S.  Since then, I have received many comments both on Concurring Opinions and offline and have listened to several programs and panels on the U.S. Census and Latinos.  In this post, I want to explore why Latinos, even those who were raised in the U.S. or have lived here most of their adult lives continue to reject U.S. conceptions of race.  After all, immigrants often adopt the norms of their new country after a relatively short period of time (a generation?) so why not adopt U.S. definitions of race?

Undoubtedly, one reason why Latinos reject U.S. definitions of race is prejudice against Blacks.  Some Latinos deny their African ancestry because they hold negative views about African-Americans.  This is illustrated in a public service video that seeks to encourage Latinos of African descent to identify as both Hispanic and Black on the 2010 Census.  In this video, a Latina grandmother rejects her grandson’s friends because she erroneously assumes that they are African-American when, actually, they are Latinos of African ancestry.

Read the rest of this post »

  March 31, 2010 at 12:27 pm   Posted in: Race   Print This Post   3 Comments

The U.S. Census and Latinos’ Conceptions of Race

posted by Solangel Maldonado

My parents were filling out the U.S. Census a few nights ago when they reached a question that stumped them both—the race question.  The Census requires that individuals “answer BOTH Question 8 about Hispanic origin and Question 9 about race” and states that for purposes of the 2010 Census, “Hispanic origins are not races.”

Question 8 asks:

Is Person 1 of Hispanic, Latino, or Spanish origin?

–No, not of Hispanic, Latino, or Spanish origin

–Yes, Mexican, Mexican Am., Chicano

–Yes, Puerto Rican

–Yes, Cuban

–Yes, another Hispanic, Latino, or Spanish origin –Print origin, for example, Argentinean, Colombian, Dominican, Nicaraguan, Salvadorian, Spaniard, and so on.

Question 9 asks:

What is Person 1’s race?

–White

–Black, African Am., or Negro

–American Indian or Alaska Native –Print name of enrolled or principal tribe.

–Asian Indian

–Chinese

–Filipino

–Other Asian

–Japanese

–Korean

–Vietnamese

–Native Hawaiian

–Guamanian or Chamorro

–Samoan

–Other Pacific Islander

–Some other race – Print race.

 My parents had no difficulty answering Question 8.  They are both from the Dominican Republic so they checked “Yes, another Hispanic, Latino, or Spanish origin” and printed “Dominican” in the box provided.  They did not know how to respond to Question 9, however.  My father, whose phenotype is that of a light-skinned Black man, wanted to select “White” because he equates Black with African-American.  My mother wanted to select “Black” because, in her view, “White” refers to Caucasian and, although her grandfather was a Spaniard, her grandmother was of African descent.  Confused, my parents asked their four adult daughters, all of whom were born and raised in the U.S., how we self-identified in the Census.  Three of us checked “Black” and one checked both “Black” and “White.”  My father finally agreed to check “Black,” not because he identifies as such, but because there were no other “adequate choices.”  When I asked him what race he would have selected had it been listed, he responded “Latino.”  For him, and many other Latinos, his race is not White, Black, or American Indian, but Latino—the result of a mixing of European (mostly Spaniard), African (brought as slaves to the Americas), and the indigenous people of the Americas (for example, Taino, Aztec, Mayan, etc.) Read the rest of this post »

  March 26, 2010 at 9:01 am   Posted in: Culture, Race   Print This Post   17 Comments

Not-Quite-Live-Blogging Intersectionality (Part I: General overview, Thursday)

posted by Kaimipono D. Wenger

I’m at the UCLA Intersectionality conference, and so far it has been phenomenal. I’m going to post some brief notes about the sessions I’ve attended so far. I’m typing these up while in a session – the intersectionality teaching and reading workshop. Hopefully these will be moderately coherent.

The conference started with an introduction from Saul, and quick comments from co-sponsors (including me, because TJSL is a co-sponsor of the event. The opening event was very well attended – a hundred people or so (maybe?), even though it was at 10 a.m. on a Thursday. Read the rest of this post »

  March 11, 2010 at 4:37 pm   Posted in: Conferences, Race   Print This Post   2 Comments

A double whammy for diversity

posted by Kaimipono D. Wenger

Law firms aren’t just laying off lawyers, they’re laying off racial minority lawyers. A recent Law.com story sets out the detail:

Large U.S. law firms became less diverse last year. That’s the key finding to emerge from the latest version of our annual Diversity Scorecard, which counts attorneys of color in the U.S. offices of some 200 big firms. In each of the previous nine years that we’ve compiled the Scorecard, the percentage of minority attorneys at all participating firms increased, rising from less than 10 percent in 2000 to 13.9 percent in 2008. In 2009, for the first time, that proportion dipped, to 13.4 percent. The drop in law firm diversity may be small, but it’s important. Overall, big firms shed 6 percent of their attorneys between 2008 and 2009 — and, amid the bloodletting, lost 9 percent of their minority lawyers. . . .

The data shows that, while minority lawyers as a whole lost ground, not all groups were affected equally. In proportional terms, African-Americans lost the most: the percentage of all black lawyers fell by 13 percent (462 lawyers), with the number of black nonpartners sliding by a startling 16 percent. Translation: Almost one in six African-American nonpartners left the surveyed firms in the space of a year without being replaced. In raw numbers, Asian-Americans dropped the most, by 9 percent (556 lawyers). The number of Asian-American nonpartners dropped by 11 percent, while the number of partners rose by 6 percent. As for Hispanic lawyers, their numbers dropped by 9 percent overall (282 lawyers). Hispanic nonpartners fell by 13 percent; partners rose by 3 percent.

Meanwhile, another recent Law.com article focuses on diversity declines in law school admissions:

Research by two social scientists suggests that the U.S. News & World Report law school rankings aren’t helping legal educators build a more diverse student body. Deans and admissions officers told the researchers that the pressure to maintain or improve their U.S. News rankings can mean fewer slots for diverse students, who tend to score lower on the LSAT and have lower grade point averages. “Selectivity” — LSAT scores, undergraduate grades and schools’ degree of exclusivity in accepting applicants — accounts for one quarter of each school’s ranking. . . .

“By creating strong incentives for law schools to focus more narrowly on test scores, rankings make it seem more risky to admit diverse students when those students tend to have lower test scores,” the report says. “Moreover, rankings ratchet up the competition for poorer students and students of color with high scores….Administrators say they often feel forced to choose between a higher median LSAT score and a more diverse student body.”

To synthesize: There are no jobs for Black lawyers; but hey, there are no Black law students anyway. Double whammy.

  March 8, 2010 at 1:23 pm   Posted in: Civil Rights, Law Practice, Law School (Rankings), Race   Print This Post   5 Comments

Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence

posted by Nate Oman

I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.

I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper: Read the rest of this post »

  March 3, 2010 at 8:46 am   Posted in: Constitutional Law, Criminal Law, First Amendment, History of Law, International & Comparative Law, Jurisprudence, Law and Humanities, Race, Religion, Supreme Court   Print This Post   One Comment

What a “Ghetto” Party at UCSD Can Teach Us About the Importance of Racial Diversity on Campus

posted by Angela Onwuachi-Willig

Black History Month just ended.  In honor of Black History (or perhaps its end), certain students at the University of California, San Diego decided to leave us with one last lesson about the importance of diversity.

On February 15, 2010, individual members of a fraternity at UCSD held an off-campus party in honor of Black History Month called the “Compton Cookout” (The President of Pi Alpha Kappa criticized the party and asserted that the party was not sponsored or condoned by the fraternity.).  The invitation included references to “dat Purple drank,” which the party creators described as consisting of “sugar, water, and the color purple, chicken, coolade, and of course Watermelon.”   The students sent the invitation via Facebook with dress and behavior requirements for attendees.

Men were asked to be “stuntin’ in ya white T (XXXL smallest size acceptable), anything FUBU. . . .”

Women were asked to come as “ghetto chicks” with “short, nappy hair” (Did we not learn anything from Don Imus?).   The dress and behavior requirements for women were extensive and included the language below:

“For girls: For those of you who are unfamiliar with ghetto chicks-Ghetto chicks usually have gold teeth, start fights and drama, and wear cheap clothes – they consider Baby Phat to be high class and expensive couture. They also have short, nappy hair, and usually wear cheap weave, usually in bad colors, such as purple or bright red. They look and act similar to Shenaynay, and speak very loudly, while rolling their neck, and waving their finger in your face. Ghetto chicks have a very limited vocabulary, and attempt to make up for it, by forming new words, such as “constipulated”, or simply cursing persistently, or using other types of vulgarities, and making noises, such as “hmmg!”, or smacking their lips, and making other angry noises, grunts, and faces. The objective is for all you lovely ladies to look, act, and essentially take on these “respectable” qualities throughout the day.”

Read the rest of this post »

  March 2, 2010 at 4:02 pm  Tags: Compton Cookout, diversity, Grutter, Parents Involved, Proposition 209, UCSD fraternity party  Posted in: Civil Rights, Current Events, Education, Race, Uncategorized   Print This Post   3 Comments

The Newest Scottsboro Boy

posted by Sherrilyn Ifill

Hear the words “Scottsboro Boys” and what comes to mind is the picture of southern injustice.   Nearly a dozen black teenagers taken off a train in Alabama in 1931 and accused of raping two white girls.  The sheriff calling out the militia to protect the boys from a mob lynching.  The defendants, illiterate young men whose families resided in other states, held under military guard.   A summary trial held six days after arraignment.  The boys tried without counsel.  Each convicted and sentenced to death.  The case successfully challenging their conviction, Powell v. Alabama, is central to our modern conception of the requirements of due process for criminal defendants.

Fast forward 80 years and Jeffrey Skilling, former president and chief operating officer ofcollapsed energy giant Enron, is the newest Scottsboro boy.  Skilling’s attorney argued on Monday before the U.S. Supreme Court that his client was tried and convicted in Houston in what amounted to a mob atmosphere.  Skilling, was convicted of securities fraud, conspiracy and insider trader for actions he took to cover up the financial collapse of Enron, which resulted in losses estimated at tens of billions of dollars for Enron shareholders.  Thousands of Enron employees lost their retirement funds.  Skilling was sentenced to 24 years, which he is serving in a minimum security prison.  He challenges his conviction on the grounds that the crime of “honest services fraud” is unconstitutionally vague, and on the grounds that he was tried and convicted amidst an atmosphere of “pervasive community bias.”

It’s true that feelings about Skilling and Enron CEO Ken Lay ran high during those days – especially in Houston.  It’s also true that government surveys indicated that potential jurors in Houston were more likely than those residing outside Houston, to believe that Skilling and Lay were innocent.  Skilling argued, nevertheless, that “overwhelming passions” gripped the pool of Texans from which the jury was selected, stoked by a “media frenzy.”  His prosecution was, according to Skilling, “as dramatic as any in U.S. criminal trial history.” (I’m not sure that the Scottsboro boys, Sacco and Vanzetti, Richard Hauptmann (kidnapper of the Lindbergh baby),the police officers who beat Rodney King, or O.J. Simpson, would agree with that assessment, but history will have to sort it out).  At oral argument, several members of the Court – Justices Sotomayor and Breyer among them – reportedly expressed serious concerns about the trial court’s voir dire of the jury.  The Court may yet find that Skilling – who was represented by some of the finest attorneys in the country, and who reportedly spent more than $30 million dollars on his defense –   is entitled to a new trial in a different venue. Read the rest of this post »

  March 1, 2010 at 4:52 pm   Posted in: Civil Rights, Current Events, Race, Supreme Court   Print This Post   2 Comments

Speak of the Devil

posted by Kaimipono D. Wenger

Pat Robertson made headlines a few weeks ago with his claim that Haiti’s earthquake was the product of a centuries-old curse caused by a pact with the Devil. Of course that assertion is preposterous. In fact, Robertson was several hundred miles off course. Haiti never made a pact with the Devil; the United States did.

Our deal with the Devil, as abolitionist writers remind us, was the conscious choice made by American leaders, two centuries ago, to taint our most sacred national documents by writing racism and slavery into them. Revolutionary leaders had talked boldly of freedom and equality. The Declaration of Independence contained soaring promises: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

But the constitutional framers ran into political trouble – and, as usual, Black interests were the first to be abandoned. Under pressure from Southern landowners, the framers agreed on a Constitution which left slavery untouched, and even let Southerners count slaves (as 3/5ths of a person) for representation purposes. The result was a Constitution which abolitionist William Lloyd Garrison rightly called “a covenant with death, an agreement with Hell.” Or in other words, a pact with the Devil.

The Civil War provided a chance for repentance, as newly freed Blacks slowly began to build communities and cautiously claim their rights. But once again political exigencies required a compromise, and once again it was Black freedom which lost out in 1877. For thirty pieces of silver – the disputed electoral votes of three states – the nation’s political leaders sold the South to a century of Klan rule. Again. The pact would formally last until 1964; its effects are still easily observed today.

Haiti’s situation is complex, and made more so by some very bad decisions in American foreign policy. As we focus on rescue and rebuilding, Robertson’s ill-advised words can be a reminder of Garrison’s more apt description, and a reminder of a very real centuries-old pact with the Devil made in this hemisphere.

  February 15, 2010 at 8:01 pm   Posted in: Civil Rights, Race   Print This Post   4 Comments

Billionaire Girard’s Imperfect Legacy

posted by Lawrence Cunningham

In his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.

Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.* Read the rest of this post »

  January 5, 2010 at 8:59 pm   Posted in: Civil Rights, Estates and Trusts, Family Law, Feminism and Gender, Race, Religion   Print This Post   One Comment

On Brains and Football

posted by Dave Hoffman

There are many candidates for the best visual display of quantitative information.  But how about a prize for worst display of information?  Call it the anti-Tufte. There has been some competition of late.  The graph can’t be merely misleading, or distracting. That’s too darn easy! A really bad display has several characteristics: (1) it has to overstate the certainty of the underlying data; and (2) by using pictures, it must reinforce our biases.  A recent example is the Obama Cabinet/Private Experience graphic.

Here’s another example I’ve been thinking about lately: the claim that offensive linemen are smarter than other players on the field.  Think about it.  Doesn’t it just feel true?  And here’s the graph that popularized the claim:

Ben Fry, a smart fella by all accounts, created the graph.  The size of the circles represent mean scores by position on the Wonderlic, a 12 minute, 50-question, intelligence test which players take during the combine before the NFL draft.  This graphic is often deployed to support the cliché that players closer to the ball have to be smarter. But closer examination has led me to believe that the claim – and the graph – are bunk.  And bunk of a particular sort: misleading empiricism of the sort that reinforces racial stereotypes.

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  December 21, 2009 at 12:48 pm   Posted in: Behavioral Law and Economics, Civil Rights, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology, Race   Print This Post   8 Comments

Ricci and Briscoe as Disparate Impact Cases

posted by Michael Zimmer

UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

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  November 17, 2009 at 4:58 pm   Posted in: Civil Rights, Employment Law, Race, Supreme Court   Print This Post   11 Comments

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   2 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

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