Introduction 95 results (showing 5 best matches)
- Because of these disagreements, there is no race law canon as such. Few law schools offer courses that focus specifically on race except as occasional seminars. In fact, of the more than 190 accredited law schools in the United States, as of the publication of this volume, only UCLA School of Law offers a Critical Race Studies Program, which includes a formally organized race law curriculum.
- Do we need a race law canon? The answer is not obviously “yes.” Some would say that the cases
- Race Law Stories
- Happily, we are not beginning with a blank slate. We have inherited a number of Critical Race Theory readers and a handful of casebooks on race and the law and civil rights.
- Telling Stories Out of Law: The Structure and Organization of
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Acknowledgments 2 results
- I would like to thank the UCLA School of Law, the UCLA Academic Senate and the Fletcher Foundation for providing grants that supported the production of this volume. I also thank the Jamestown Project and Dean Michael Schill for encouraging me to pursue it. I would like to acknowledge the UCLA School of Law’s Critical Race Studies Program, which provided an intellectual context in which I could productively work on
- I would like to thank the University of California, Berkeley School of Law and the Berkeley campus for summer funding and sabbatical support that enabled me to do this research. I am also grateful to Fordham Law School, which invited me to become the Bacon-Kilkenny Distinguished Visiting Professor of Law during Fall 2005. This visit afforded me the opportunity to do in-depth work on my chapter and to present a version of it during a faculty workshop. In addition, Fordham sponsored a workshop that permitted all of the authors to think collectively about the project as well as a public conference that showcased the stories in the book. Dean William Treanor, Helen Herman, and Darin Neely played key roles in making the workshop and conference a reality. I also benefited from the chance to present earlier versions of my chapter at Emory University School of Law, Rutgers Law School, UCLA School of Law, and the University of Minnesota Law School. I received very able assistance from the...Law
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Foreword 22 results (showing 5 best matches)
- The cases presented here, famous, not-so-famous, and infamous, compellingly capture the “back story” behind race law. They highlight various forms of claims-making among litigants, offer insightful doctrinal
- Race remains “unfinished business” and will continue to be so in an era when the contradiction between formal equality and structural inequality is normalized; and when two incompatible and competing “stories” — one colorblind, the other color-conscious — shape the unstable equilibrium that characterizes racial formation in the United States today. Because the meaning of race is still unsettled, its competing “stories” take shape in the form of claims-making by litigants in pursuit of racial equality and social justice. Uncertainty and contrariety are continually reproduced in the decisions that shape the race law canon: sometimes reaffirming old notions, sometimes seeking to establish new understandings of both race and rights. This unfinished business is the broader story that
- Race Law Stories
- Perhaps what is most revealing in the stories presented in this volume is the courts’ insistence on their prerogative to interpret the meaning of race and to determine what aspects of a litigant’s identity, behavior, or appearance are race- (or gender-) based. Courts remain free to invoke or ignore both scientific claims and assertions of common sense. The arbitrary character of the race law canon is in the end the greatest evidence for the centrality of narrative in civil rights law and indeed human rights law.
- Race Law Stories
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Chapter 14. Representation and Raceblindness: The Story of Shaw v. Reno 67 results (showing 5 best matches)
- The Story of
- Like many stories in the area of race law,
- Standing and Misunderstanding in Voting Rights Law
- relies on an atomistic vision that defines constitutional harms in highly individualized terms. The victims are those whose race has been considered in government decisionmaking; the perpetrators are those government actors who have taken race into consideration in making decisions. From this perspective, the fundamental command of the Equal Protection Clause is that government shall not take race into account, including the race of voters placed in districts. The atomistic vision is captured in Justice O’Connor’s plurality opinion in , which speaks of the “dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement.”
- represents a major victory for the atomistic view of equal protection, the majority left some wiggle room for the deliberate creation of majority-minority districts. In the last paragraph of its opinion, the Court noted the Justice Department’s view that the North Carolina legislature could have created a more compact (and less oddly shaped) majority-minority district in the south-central to south-eastern part of the state by adopting the plan the states’ Republicans had advocated. The Court did not say whether a more compact majority-black district would have offended the Equal Protection Clause. Instead, it limited its holding to a reapportionment that was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race,” at least where the “separation lacks sufficient justification.” of the story of , but rather the beginning of a new story—one for which the conclusion has yet to be written.
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Chapter 15. Disfiguring Civil Rights to Deny Indigenous Hawai–ian Self–Determination: The Story of Rice v. Cayetano 53 results (showing 5 best matches)
- The Story of
- For an illuminating discussion of “preferential treatment” in Native American law, see Carole Goldberg,
- Kennedy’s rhetorical framing of “the immigrant success story” in Hawai‘i set the stage for a tacit condemnation of Native Hawaiians who still required special assistance. Of course, this framework was possible only because the majority ignored the momentous difference between the harsh consequences of colonization for unwilling indigenous people and the experiences of voluntary immigration by ethnic groups seeking a better life. The majority did not discuss how colonialism has operated worldwide through political and economic aggression that deploys race to justify the colonizer’s control over “inferior or uncivilized” indigenous peoples, and why race therefore must be an integral part of political-economic reparatory responses to the harms of colonization.
- What, then, was really going on? In a country dedicated to the proposition that all are created equal, but with a stark history of racial and gender discrimination, civil rights progress under the law was supposed to be a hard but steady upward pull toward real equality. This often told story, however, was part truth and part illusion.
- First, as mentioned, justice claims (seeking reparations, compensation, an apology, or public truth-telling) begin with back-and-forth struggles over the creation of public or collective memory. Those struggles are a fight over who will tell the dominant story of injustice (or absence thereof) and how that story will be shaped.
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Chapter 10. Forgotten Lessons on Race, Law, and Marriage: The Story of Perez v. Sharp 110 results (showing 5 best matches)
- The power the Los Angeles county clerk had under California law to block Sylvester and Andrea’s marriage on the basis of race can be understood only by reviewing the history of antimiscegenation laws as a whole. The laws were first enacted in the South and were most common there. But the statutes also became a way for frontier states like California to regulate increasingly complex and dynamic race relations. White supremacy and the legacy of slavery are very much a part of the story of Sylvester and Andrea’s romance.
- The story of —of Andrea and Sylvester’s struggle to love, marry, and build a family across racial boundaries—makes clear the decision’s importance for students and scholars of race and the legal system in the United States. In rescuing same-sex marriage advocates have provided race scholars with a rare gift. offers a unique snapshot of the early stages of the colorblindness doctrine that is now so embedded in race jurisprudence that it seems always to have existed. The case also offers important insights into antimiscegenation law and its role in erecting what some call the “cruel lunacy of American pigmentocracy.” could offer the study of race.
- also tells us something about race and the operation of antimiscegenation law prior to was groundbreaking for more than just the conclusion it reached. His vagueness holding, in particular, seizes on an aspect of antimiscegenation law overlooked by most cases, including revealed the arbitrariness of the racial hierarchy antimiscegenation laws helped to erect. His vagueness holding illustrates not only the fallacy of biological accounts of race—a theme deeply embedded in the colorblindness principle Traynor sought to apply—but also serves to underscore the critical role law has played in effecting the social construction of race in American society. In this sense, that portion of ’s majority opinion may well entitle Justice Traynor to billing as an early critical race theorist, as well as a leader in torts and other areas of the law.
- ’s failure to gain broader recognition as an important race case begs the question whether “loving” as a landmark case about race in the same league as ; and, if so, what would doing so tell us about antimiscegenation laws and race that seems to have defined issues of race and antimiscegenation law for so long.
- Andrea and Sylvester constitute an altogether different story. Romantic interactions between Mexican Americans and African Americans have not been thoroughly researched. Indeed, Mexican Americans as a separate racial or cultural group have not been adequately understood. holding that the Equal Protection Clause prohibited the exclusion of individuals of Mexican heritage from juries, that “the law began to recognize the social reality of Mexican Americans in the United States.” The unique questions about race and culture presented by California’s treatment of Mexicans as white for the purposes of bans on interracial marriage are not ones that have been adequately explored. What were the legal, economic, and social mechanisms by which Mexicans became white in the United States? Through what means and to what extent have they become other than white? My sense is that had these and other latent issues, such as the treatment that should be accorded so-called mixed-race individuals,
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Chapter 2. Classical Racialism, Justice Story, and Margaret Morgan’s Journey from Freedom to Slavery: The Story of Prigg v. Pennsylvania 95 results (showing 5 best matches)
- is a tale of two stories. Not only does tell the story of Margaret Morgan’s journey from freedom to slavery, but it also tells a story about one of our most respected Supreme Court justices. For centuries now, race has insinuated itself into almost all of our human relationships. In Justice Story’s era, race was conceptualized in the most rigidly essentialist vocabularies, and his ambivalence toward the slavery question derived from the racial vocabulary of his day, which relegated blacks to a sub-human, typologically distinct category. That Margaret Morgan and her children’s fate were lost somewhere in the interstices of history epitomizes this lack of regard for or interest in the sufferings of the black community. At a minimum, Margaret Morgan’s story reminds us that the law, like every other human institution, is informed, to varying degrees, by the social ethos. Classical racialism not only affected economic and immigration policy, but it framed the very background... ...law...
- Justice Story’s ambivalence about slavery involved more than merely holding inconsistent views about blacks; it may be described as a particular moral psychology that permitted him to dehumanize blacks. Once blacks were stripped of their fundamental human dignity, classical racialism provided the rationale for Justice Story to uphold slavery while at the same time invoking founding ideals without any sense of inherent contradiction. Justice Story’s ambivalence allowed him to debase and devalue an entire race of people without sacrificing his claim to being a good, decent, God-fearing person.
- Scholars have uniformly denounced Justice Story’s opinion on ethical, jurisprudential, and formal-legal grounds. In doing so, these critiques have presumed that Justice Story was torn between his sense that slavery was wrong and his belief that the law must be upheld. A few commentators have questioned just how deep his anti-slavery commitments ran, in part because he so readily sacrificed them to the imperatives of the rule of law. Yet whatever the reasons for taking Justice Story to task, none of the existing scholarship examines through the lens of Enlightenment race-thinking, particularly the racial metaphysics that philosopher Paul Taylor labels “classical racialism.”
- In analyzing how racial theories came to influence thinking in the United States, Thomas Jefferson is an important figure for three reasons. First, he was a central figure in the development of American democracy and the country’s cultural understanding of itself. Second, Jefferson was a leading intellectual and, thus, represents the best thinking of his day in any number of areas, including the etiology of race. Finally, Jefferson’s race-thinking is illustrative of the type of moral ambivalence toward the legal subordination of blacks that Justice Story probably felt.
- Finally, and by way of summary, Justice Story’s opinion is notoriously overbroad. Were Justice Story the anti-slavery advocate he and others claimed to be, he could have drafted a much narrower opinion. Take, for instance, the common law right of recaption. In Justice Story’s words, the Fugitive Slave Clause “manifestly contemplates the existence of a positive, unqualified right” of reclamation. Justice Story reasoned that the right of recaption derived from the Constitution itself, and that even the minimal process prescribed by the personal liberty laws offended slave-owners’ right of recaption. He could have declared the Pennsylvania personal liberty law unconstitutional without announcing a sweeping right of recaption that, in effect, removed any protection whatsoever for free blacks kidnapped into slavery. Such a broad and unsupported reading of the Fugitive Slave Clause, critics argue, does not comport with Justice Story’s reputation as an anti-slavery jurist.
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Title Page 3 results
Contributors 19 results (showing 5 best matches)
- Race & Law Stories
- is Professor of Law at New York University School of Law. She received both her B.S. and J.D. from Howard University. After graduating from law school, she worked for Patterson, Belknap, Webb & Tyler before transferring to The Ford Foundation, where she counseled the organization on its civil and human rights programs. Since joining the New York University School of Law faculty in 1979, Professor Caldwell has instructed courses in education law, employment discrimination law, real estate transactions, and race and legal scholarship. Professor Caldwell’s research and scholarly works are focused on Critical Race Theory, employment discrimination law, education law and policy, and the intersection of race and gender. She has published articles in the Michigan Journal of Race and Law, the Duke Law Journal, and the Journal of Modern Critical Theory.
- is Professor of Law at University of California, Los Angeles, School of Law, where he teaches civil procedure, Asian American Jurisprudence, and Communications Law & Policy. A graduate of both Harvard College (physics) and the Harvard Law School, he writes on race, communications, and their intersection. On race, he has focused on the Asian American community and on the legal implications of recent discoveries in social cognition. He is a co-author of
- is Associate Professor of Law at The Ohio State University, Michael E. Moritz College of Law. He graduated from Harvard College and Yale Law School. Prior to his academic career, Professor Tokaji clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and was a staff attorney for the ACLU Foundation of Southern California. He specializes in election law, civil rights, federal courts, and civil procedure. His publications include , 101 Michigan L. Rev. 2409 (2003). In addition to his academic work, Professor Tokaji serves on the boards of the ACLU of Ohio, the Asian Pacific American Bar Association of Central Ohio, and the Conference of Asian Pacific American Law Faculty. He thanks Morgan Kousser, Rick Pildes, Mike Pitts, as well as participants in the Moritz College of Law’s Faculty Workshop, the Ohio Legal Scholarship Workshop, and the Race Law Stories Conference at Fordham Law School, for their thoughtful comments on earlier drafts of his chapter....
- is Professor of Law at the University of California, Berkeley, where he teaches in the areas of race and constitutional law. He received his B.A. and M.A. from Washington University, his M.P.A. from Princeton University, and his J.D. from Harvard Law School. He has published ground breaking books on the social, and specifically legal, construction of race:
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Race Law Stories 19 results (showing 5 best matches)
- RACE LAW STORIES
- Chapter 10: Forgotten Lessons on Race, Law, and Marriage: The Story of Perez v. Sharp
- Chapter 5: Multiracialism and the Social Construction of Race: The Story of Hudgins v. Wrights
- Chapter 7: What’s Race Got to Do With It?: The Story of Morton v. Mancari
- Chapter 6: Yellow by Law: The Story of Ozawa v. United States
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Chapter 11. Judicial Opinions as Racial Narratives: The Story of Richmond v. Croson 90 results (showing 5 best matches)
- tells not one race law story but several. Contained in its opinions are narratives about winners and losers, victims and perpetrators, innocence and guilt. This is not to say that the narratives take the same rhetorical form. They do not. Marshall’s narrative is contextual while Scalia’s is abstract. But even Marshall’s narrative reflects a certain degree of formalism. More particularly, his opinion acquiesces in the idea that the relevant location for the story is the city of Richmond. A legal narrator must make choices about the geographic setting in which the story takes place, and those choices are neither neutral nor inconsequential but instead have a dramatic effect on the representation of “reality” in that narrative.
- Although Marshall’s narrative properly focused on the history of racism in Richmond, it relied unconsciously on some limiting geographic assumptions that restricted the power of his narrative to provide an alternative social reality of race. In particular, he missed the opportunity to show why the fears of racial retribution and racial politics in the narratives of O’Connor and Scalia were unfounded. In constructing a narrative, a storyteller must make implicit choices about the context in which the story takes place. Those geographic choices shape and structure the story that is told. By including certain spaces in the story and by excluding others, or by expanding or restricting the geographic scale in which the story takes place, the storyteller makes critical decisions about what facts are relevant or irrelevant to the story.
- In the end, the narratives of race relations in the Richmond metropolitan area are stories about race relations throughout the United States. The racial subordination in Richmond is typical of major cities across America. Conceptualizing judicial opinions as narratives, exposing the narratives in , and expanding the geographic scope of the stories in show that the continuing subordination of African Americans is a national phenomenon, one justifying constitutional support for, rather than distrust of, affirmative action. Yet, the Court’s stories, though at times conflicting and incomplete, have enabled it to convert colorblindness into a fiction of fair play, casting doubt on colorconscious remedies in the name of false symmetry and formal equality.
- Every storyteller knows that stories have beginnings and endings and that readers often pay special attention to those places in the narrative. A reader of the Richmond narratives encounters the ending of Scalia’s story juxtaposed with the beginning of Marshall’s story. As the echoes of Scalia’s metaphor of affirmative action as an infectious disease fades, In that first sentence, Marshall introduces a story he will not merely invite, but will also tell—the story of Richmond’s “disgraceful history” of race relations.
- Narrative: Race Relations in Richmond as a Story of Suburban–Urban Racial Subordination
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Chapter 5. Multiracialism and the Social Construction of Race: The Story of Hudgins v. Wrights 65 results (showing 5 best matches)
- demonstrates the impact of a growing multiracial population on Virginia’s racial classification laws in a society that required segregation to preserve slavery. Specifically, this story analyzes how helped to establish a system of racial definitions that entrenched a black class of enslaved labor within the tobacco economy. The chapter begins with the emergence of the slave system in Virginia and details how definitions of race shifted with the growth of a mixedrace population that threatened the stability of segregation and slave labor. This account also illustrates how the small numbers of American Indians and their propensity to escape intensified the need to isolate blacks, who generally could be identified by the most commonly used proxy for race—skin color—in a system of long, hard enslavement. Thereafter, the chapter tells the story of ...enduring societal belief in pure biological classifications of race even in the face of a growing multiracial population and a... ...race...
- The Story of the
- This newly popular view of genetic race has done far more than simply satisfy personal curiosity or conveniently alter college applications and scholarships. As Professor Lisa Ikemoto has highlighted, “race is back on the biomedical research agenda … [,] emerging as a legitimized explanation for medical and social issues.” For scholars like Ikemoto and Dorothy Roberts, a law professor who specializes in reproductive rights, this fascination with genetic race raises fears of a return to eugenics, which was used in the past to support laws—such as compulsory sterilization—that deeply discriminated against racial minorities. In fact, both Ikemoto and Roberts decry the harm that could result from the ethnic-or race-based packaging of prescription drugs.
- Reliance on the idea of genetically based race has polluted various areas of the law, resulting in a kind of schizophrenic analysis of issues of discrimination. On the one hand, at least a minority of courts recognize (with undesirable consequences) the social construction of identity in their determinations of when to apply the Indian Child Welfare Act to a child removed from his home for adoption. The Act does not apply to a child whose American Indian parent has failed to develop any significant social, cultural, or political relationship with the Indian community. questionable practice of determining native authenticity, the ways in which performance—the exercising of community privileges and culture—can determine race in our racially polarized society. On the other hand, as Professor Mario Barnes and I have noted, some courts simultaneously have rejected the social construction of race in Title VII employment discrimination cases. Judges have refused to recognize proxies for
- note 126, at 1124 (“Attempts to market products to particular racial groups—e.g. BiDil—may legitimize biological race.”); Roberts, note 127, at 528–29 (proposing “that the legal regulation of race in biomedical research should aim to promote social justice…. [which] holds that race is a socially constructed category without scientific basis that continues to produce health inequities, that these inequities require race-conscious legal remedies, and that biomedical research should be subject to legal regulation that promotes racial justice”).
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Chapter 3. Birthright Citizenship, Immigration, and the U.S. Constitution: The Story of United States v. Wong Kim Ark 31 results (showing 5 best matches)
- This chapter tells the story of this largely overlooked Supreme Court case by discussing its origins and explaining its importance. As will become clear, the importance of is directly linked to the divisive debate over race, immigration, and citizenship in late nineteenth-century America. As a matter of formal law, settled this debate and made legal history by sustaining birthright citizenship for all persons born in the United States, regardless of race. As a matter of substantive citizenship, the debate about race and belonging in America raged on. For this reason, the aftermath of ..., the ways in which the principle of birthright citizenship was applied to and used by Chinese Americans, as well as the contemporary resonance of the case, help us to understand the impact of law on everyday people, hierarchies within American citizenship, current debates about immigration, and how history and memory are both forgotten and remembered. Part of the aim of this chapter is to remember...
- Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique,
- But the ruling also had unintended consequences that would eventually jeopardize the right of American-born Chinese to reenter the country. As the exclusion laws and their enforcement grew increasingly restrictive during the 1890s, more and more Chinese attempted to enter Exclusionists responded by launching a new campaign to challenge the extension of birthright citizenship to Chinese, hoping to close what they saw as an egregious loophole in the exclusion laws. This anti-Chinese faction argued that the principle of jus sanguinis, that is, blood or descent, should take precedence over jus soli, place of birth. Because federal laws prohibited Chinese immigrants from naturalizing, this faction believed that exclusion from citizenship should descend to their American-born children. This principle, exclusionists argued, was especially relevant for the Chinese, who were incapable of assimilation as a race. In 1884, lawyer George D. Collins argued in the
- Whether or not Wong Kim Ark will be canonized to such a degree by a new generation of Americans remains to be seen. But in the realm of American legal history, Wong Kim Ark and his Supreme Court victory already mark some important truths about the impact that everyday people can have on the law as well as the ongoing relevance of race, immigration, and citizenship in defining what it means to be an “American.”
- The Chinese exclusion laws are one lens through which must be understood. From a broader standpoint, Wong Kim Ark’s case also reflected the contested nature of American citizenship during the late nineteenth century and the role of Chinese immigration in redefining what it meant to be an American. The scope of naturalization in the United States was first codified in 1790 with the Naturalization Act passed that year. Both inclusive and exclusive, the law required just two years of residence in the United States before aliens could apply for citizenship. However, only “free white persons” were eligible for naturalization. ...slowly became more inclusive during those years. Following the Civil War, Congress passed a series of amendments and citizenship-related acts in order to grant citizenship and voting rights to the newly-freed African American slaves. The 1866 Civil Rights Act, passed over President Andrew Johnson’s veto, guaranteed the principle of equality before the law...
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Chapter 6. Yellow by Law: The Story of Ozawa v. United States 109 results (showing 5 best matches)
- The story then turns directly to the Supreme Court’s opinion to explore how it confronted the question of Ozawa’s racial identity. Ozawa had asked the Court to focus on his character and to discard outmoded and inaccurate biological definitions of race. Instead, the Court focused on two key and seemingly disconnected sources of guidance in interpreting racial classifications: science and common knowledge. The chapter explores the interdependency of these concepts in establishing and enforcing the racial parameters of the naturalization laws. The chapter concludes by explaining why the contemporary discussions of race. The short answer is this: In addition to exposing the rhetorical strategies the Supreme Court employed to constitutionalize the notion of the Japanese as permanently and irreducibly foreign, reveals the role that law plays in constructing race—its categories, social meanings and existential realities.
- In the meantime, Ozawa, and other people of Japanese descent, had to navigate this racialized legal landscape. Like other Asian litigants seeking to naturalize, Ozawa did not challenge race-based naturalization laws as inconsistent with the United States Constitution. Instead, drawing on both biological, social and performative conceptions of race, Ozawa argued that he was white. Neither the district court nor the Supreme Court agreed. Both insisted that Ozawa was yellow by law. The basis for that conclusion and its implications for law’s role in constructing race are key questions that this chapter takes up.
- For Ozawa, the fact that race was both unattainable and indeterminate rendered it an impractical basis for naturalization. The Japanese, he argued, “are composed of many races…. Among Japanese we will find many Europeans naturalized or born.” Race-based naturalization laws could not manage these and other identity complexities.
- In two ways, these laws are an important part of constitutional history. First, but for the existence of a race-based naturalization regime, the regulatory effect of the Alien Land Laws on people of Japanese ancestry would have been minimal. Had the Supreme Court rendered people of Japanese ancestry “aliens for citizenship,” they would have been beyond the reach of these purportedly race-neutral restrictions. Second, one year after deciding upheld the Alien Land Laws. Together, these rulings locked Japanese people out of an aspect of formal citizenship (naturalization) and one of citizenship’s crucial social markers (property). In the absence of these exclusions, the project of internment—which came more than twenty years later and which might itself be understood as a dispossession of both citizenship and property—would have been more difficult to sustain—ideologically, politically, and jurisprudentially.
- Sutherland’s claim that being white was the test for naturalization still begged a crucial question: What were the criteria for determining who is white? According to Sutherland, “[m]anifestly, the test afforded by the mere color of the skin of each individual is impractical, as that differs greatly among persons of the same race.” This was true, Sutherland reasoned, even of the “Anglo–Saxon,” whose skin color ranges “from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races.” In this sense, one could be dark in color and white in terms of race—and white in color and dark in terms of race. A test based on skin color therefore would produce “a confused overlapping of races.”
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Chapter 12. The Song Remains the Same: The Story of Whren v. United States 75 results (showing 5 best matches)
- Race, Cops, and Traffic Stops
- We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.
- Immediately after September 11th, the political wherewithal for eradicating racial profiling in law enforcement waned. Although the federal government officially condemns profiling in ordinary criminal law enforcement, the efforts to end racial profiling by state and local police have lost steam. Thus, the impact of the profiling adopted after September 11th was felt not only by Arabs and Muslims but also by African Americans, Latina/os, and other racial minorities resisting race-based law enforcement.
- Many commentators proclaimed that the reconsideration of the use of race in law enforcement made perfect sense. Public opinion shifted in favor of racial profiling, which does not affect the vast majority of American citizens, as a tool in the war on terror.
- Randall Kennedy, Race, Crime, and the Law 76–135 (1997).
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Chapter 7. What’s Race Got to Do With It?: The Story of Morton v. Mancari 68 results (showing 5 best matches)
- has implications for race and law theory as well. By emphasizing the political dimension of Indian societies and ignoring the role of kinship and ancestry, the Court may have underscored a natural and biological conception of race over a conception that emphasizes social construction and meaning. Today, critical race theory leans strongly toward the view of race as socially and politically constructed, with law playing a crucial role in that process. In other words, the law does not simply operate upon naturally existing racial differences, but rather shapes peoples’ understanding and experience of those very differences.
- Power Over this Unfortunate Race”: Race, Politics and Indian Law in
- sharply separated the legal and political framework surrounding Native people from their “racial” characteristics, suggesting that the two were completely different. This move obscures not only the legal or political construction of race for other people of color, but also the extent to which the law and broader political dynamics have racialized Native peoples. Had the Court adopted the Indian Commerce Clause theory, with its acknowledgment that the Constitution expressly approves of Indian-specific legislation, even with its inevitable mixture of racial and political components, the message emanating from might have been more consistent with a theory of the social construction of race. But whatever one may say about the impact of on race law, there is no denying the effect that broader racial issues have had on
- as a race case, as the lower court had done. Instead, it viewed the individuals receiving Indian preference as members of political bodies. What difference did that choice make for the broader corpus of race-related law and for other racial groups? This question—an invitation to speculation—can be addressed at both the doctrinal level and a more theoretical level.
- This feature of the preference arguably placed the law in the category of a “race plus” classification. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (“sex plus” classification). For an argument that Indian classifications should not be treated as “race plus,” see Carole E. Goldberg–Ambrose,
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Chapter 4. “The Constitution Follows the Flag … but Doesn’t Quite Catch Up with It”: The Story of Downes v. Bidwell 41 results (showing 5 best matches)
- explore the Insular Cases as a way to understand the role of race in articulating the relationship between American territorial expansion and American citizenship—between American empire and American democracy. The chapter begins by historicizing the opinion. My aim here is threefold: (1) to provide a brief description of the effects of Spanish colonial rule on Puerto Rico; (2) to set forth the circumstances leading up to the Spanish American War; and (3) to illustrate how the outcome of that war helped to shape America’s identity as a colonial power. Next, the chapter tells the story behind the opinion itself, showing how the law reflected an uneasy balance between declaring the island to be both a U.S. possession, and one with a separate, not entirely “American” population. As this story and its aftermath will reveal, ...opinions remains good law today. The resiliency of decisions that signaled the rise of the United States as an imperial power is then explained by turning...
- Race and Manifest Destiny: The Origins of American Racial Anglo–Saxonism
- See P.R. Laws Ann
- 4 Mich. J. of Race & L. 39 (1998);
- Racism, supported by the pseudo-science of Social Darwinism, also justified the takeover of lands belonging to “inferior races.”
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Chapter 13. The Heirs of Brown: The Story of Grutter v. Bollinger 115 results (showing 5 best matches)
- As for when the program would end, Michigan would stop considering race when it was no longer necessary to achieve a diverse student body. Racial disparities in LSAT scores and, to a lesser extent, grades had prompted Michigan to weigh race in the admissions process, but the gap had narrowed and would eventually close. Meanwhile, forcing the law school to abandon affirmative action could lead to a dramatic drop in black, Latino, and Native American enrollments, a de facto re-segregation of elite legal education. The law school had explored race-neutral options and found them wanting. A lottery system would abandon academic standards, while percentages focused too heavily on geography, were rooted in residential segregation, and did not apply to law school as opposed to undergraduate admissions.
- Boggs also blasted the diversity rationale on the merits, arguing that the law school’s willingness to equate race with rare and remarkable achievements, such as an Olympic gold medal, showed that the object was not in fact experiential diversity. As he put it: “After reading the description of [the] admissions criteria, a Michigan law student might yearn to meet the mere Olympian who failed to medal and was thus considered insufficiently interesting by the Law School.” Because “the only type of diversity that is given more than modest, if any, weight is based on assigned racial categories,” Boggs concluded that “the Law School grants preferences to race, not as a proxy for a unique set of experiences, but as
- the lawsuit that challenged affirmative action in admissions at the University of Michigan Law School. Before the litigation began, the federal courts were deeply divided over the legitimacy of weighing race in deciding whether to offer applicants a seat in the entering class of a college or university. When the lawsuit was filed, the parties took dramatically different positions on whether affirmative action was a blight on individual fairness or a boon to racial justice. Intense disagreements about the legitimacy of affirmative action in turn led to split decisions and judicial in-fighting. Even the United States Supreme Court’s ruling ultimately could not resolve the controversy. is the story of a jurisprudence of fragmentation, fraught with the ambiguity and ambivalence born of unresolved conflict.
- Even if diversity qualified as a compelling interest, the requirement of narrow tailoring remained. The narrow tailoring requirement stems from a preoccupation with the harms that race-based classifications can inflict. The notion is that affirmative action programs can burden whites like Barbara Grutter as well as stigmatize and stereotype non-whites, so any use of race must be carefully calibrated to minimize these injuries. A concern about potential harms exists notwithstanding the fact that plaintiffs like Grutter need not demonstrate that, but for the existence of the affirmative action program, they would have been admitted to the university. To some extent, Powell’s rejection of quotas and his insistence on individualized review of applicants reflected a desire to reduce these burdens. Kolbo had marginalized Powell’s opinion as authority for finding diversity to be compelling, but he nevertheless relied on its discussion of the Harvard plan to attack the mechanics of Michigan’s
- For Michigan, the narrow tailoring requirement was a significant stumbling block. The law school insisted that critical mass was not tantamount to a quota. There was no fixed set-aside, and the number of students enrolled each year fluctuated within a significant range. According to Payton, this testimony showed that there were no systematic racial differences in the law school’s treatment of the most highly qualified and least qualified applicants. The former were uniformly admitted and the latter uniformly rejected. Only in the middle range of applicants did race play a role; this outcome was wholly predictable because Michigan acknowledged that it used race as a plus in the process. Larntz’s data simply confirmed that Michigan was following its policy. Even if race received only a slight plus, the odds of admission for underrepresented groups would substantially exceed those for whites because the grids focused on ...race did not play a dispositive role, Payton argued, given...
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Chapter 16. Intersectional Bias and the Courts: The Story of Rogers v. American Airlines 68 results (showing 5 best matches)
- Courts first dealt with intersectional claims involving race and gender bias brought by women of color. Accordingly, many, though not all, of the cases examined here involve the intersection of race and gender as it affects this group. For this reason, the story of
- Like many cases in anti-discrimination law, has long been criticized by legal scholars as an example of how courts unnecessarily limit the definition of discrimination and, ultimately, the reach of law. The decision permits employers to discriminate based on race, so long as they do so using factors other than immutable traits. This distinction allows employers to create myriad proxies for race—hairstyle, name, speech pattern, accent, dialect, language choice—and, without judicial review, to disprefer members of subordinated racial groups on the basis of aesthetic, cultural, and statistically associated traits. decision did not say is that Congress nowhere dictated this limitation in Title VII. The court also failed to acknowledge that discriminatory intent often manifests itself in policies that do not explicitly mention race but mention instead proxies for race or racially associated traits such as hairstyles. Making matters worse, nothing in the decision requires employers to...
- The racially coded nature of the category “woman” was further evidenced by American’s insistence on the racial neutrality of its grooming code. Defense counsel masked Rodgers’ race-sex claim by arguing that the policy applied equally to all races and did not affect an immutable racial characteristic or fundamental constitutional interest. The defense further contended that the law did not provide protection for the cultural associations that an individual might bring to racial identity. Most important, although American claimed it had prohibited all-braided hairstyles since at least 1975, American’s counsel argued that Rodgers did not become enamored of such styles until she had seen the actress Bo Derek wear an all-braided hairstyle in the movie In effect, American argued that even if the law did protect the cultural manifestations of racial identity, there was no clear connection between blacks and all-braided hairstyles: Bo Derek became the cultural referent, not African Americans.
- court’s emphasis on the universal application of American’s no-braids rule, may find it hard to see the intersectional claim there. Others, seeing the claim, may nevertheless agree that grooming and appearance regulations are sufficiently peripheral to employment rights that they should remain within the zone of employer prerogative that was not intended to be invaded by anti-discrimination law. Still others may agree with the court’s refusal to include cultural manifestations in the definition of race, either because they were not intended by Congress to be protected by law or because giving courts the power to define race through culture would ultimately be harmful to subordinated groups.
- The logic of the intersectional critique is difficult to refute; it is supported by a substantial body of scholarship in law and across academic disciplines. The legal academic debate was initiated by women of color who challenged the ways in which problems arising at the intersection of race and gender are marginalized in law, feminism, and antiracist politics. This early scholarship also made clear that the intersectional critique extends to other forms of bias, including class and sexual orientation, to any intersectional group, and to any area of law. Subsequent legal scholarship has developed analyses that take account of multiple systems of subordination, the ways in which they interact, and the bodies of law that support them.
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Chapter 8. Jim Crow, Mexican Americans, and the Anti–Subordination Constitution: The Story of Hernandez v. Texas 59 results (showing 5 best matches)
- If the Court’s pinched conception of race lends support to an intent test, it also allows the Court to equate race-conscious remedies with racism. Under a colorblind standard, nothing differentiates racism from affirmative action, Jim Crow from racial remediation. Witness Justice Clarence Thomas’s declaration that “there is a ‘moral [and] constitutional equivalence’ between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.” How can affirmative action be the equivalent of the segregated juries, schools, restaurants, and bathrooms in Jackson County, Texas? The answer again lies in the colorblind Court’s artificially empty conception of race. When the Court abstracts race from social context and group conflict, it reduces the harm of racism to a violation of liberal norms. Under this conception, to treat someone differently on the basis of race amounts to favoring or disfavoring individuals on...
- Nevertheless, the Court upheld the exclusion, finding no bias on the part of the prosecutor. Justice O’Connor’s rationale, offered in a concurring opinion, is particularly revealing. Justice O’Connor thought it irrelevant that the basis for exclusion correlated closely with Hispanic identity and operated to exclude all and only Latinos. Because the prosecutor did not justify the strikes in explicitly racial terms, Justice O’Connor reasoned, no basis existed for constitutional intervention. The strikes “may have acted like strikes based on race,” Justice O’Connor conceded, “but they were based on race.
- Today’s Court gets racism backwards. The Justices deny that racism operates, no matter how stark the impact, if no state actor specifically invokes race, even though most racism now occurs through institutionalized practices. At the same time, under strict scrutiny the Court concludes that virtually any explicit use of race amounts to racism. In fact, though, efforts to counteract racial oppression’s extensive harms must refer to race and should not be presumptively suspect. This misunderstanding of racism is anchored by a narrow conception of race. It is race-as-a-word-that-must-be-uttered-for-it-to-exist, race-as-skin-color-disconnected-from-social-practice-or-national-history, which undergirds colorblindness. We can best oppose this understanding of race, and the perverse constitutional results it justifies, by insisting on the deep connection between race and social inequality. Herein lies the single most important insight of ...state directly invoked race, as the current...
- Before the Supreme Court, Texas also argued that Mexican Americans formed part of the white race. It most likely did so because, among the Texas courts, acceptance of the claim that Mexican Americans were white had emerged as a means to defeat their equal protection claims. The Texas criminal court had addressed discrimination against Mexican Americans in the selection of juries on at least seven previous occasions between 1931 and its decision in in 1952, consistently ruling against the Mexican–American defendant. The court had not, however, been consistent in its racial characterization of Mexican Americans. In its initial decisions, and as late as 1948, the court construed Mexican–American challenges to jury exclusion as involving discrimination against members of the “Mexican race.” For example, involved, according to the court, a challenge to “unjust discrimination against the Mexican race in Menard county,” ...alleged discrimination against the Mexican race on the part of...
- Race and Colorblindness after
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Chapter 9. Dodging Responsibility: The Story of Hirabayashi v. United States 38 results (showing 5 best matches)
- The internment cases often are taught as proof that the rule of law can work itself pure by correcting errors made by a few bad apples—as , as the coram nobis opinions corrected the wartime cases, and so on. But more critical examination uncovers a counter-story of a judiciary that has concealed its transgressions through deft legal exegesis and manipulative reasoning. That counter-symbol—
- referred explicitly to another, equally damning document letter from General DeWitt to the Secretary of War one and a half months prior to evacuation. In it, General DeWitt wrote that “the Japanese race is an enemy race” and that regardless of being born in the United States, their “racial strains are undiluted.” Further, “[t]he very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”
- By finding prejudice as a matter of fact (even though, as a matter of law, this was not deemed a necessary element), the Ninth Circuit adopted the official story that the wartime Supreme Court was an innocent, misled by duplicitous lawyers. The Court did nothing wrong; it was merely tricked. In the 1940s
- Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.
- as the fount of strict scrutiny. In application, however, the flowery rhetoric wilted into limp acceptance of crude, time-worn racial stereotypes. In the Court’s view, “pressing public necessity” included assumptions of disloyalty based on race; such generalizations were not seen as evidence of “racial antagonism.”
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Chapter 1. The Tribal Struggle for Indian Sovereignty: The Story of the Cherokee Cases 43 results (showing 5 best matches)
- the failure of American constitutionalism and the operation of what contemporary scholars have come to call “Conquest by Law” or “Genocide at Law.” A careful review of the stories of provides ample proof of what the Cherokees’ storytellers have maintained since that era: Law is a double-edged sword whose blade always seems ready to find and cut away at the soft spots of Indian Nationhood. And yet, the Cherokees and other Indians continue to play within the white man’s law because, for many purposes, the courts are the only game in town.
- As William Wirt feared, the Supreme Court found against the Cherokee Nation. Of the seven Justices, four rejected the Cherokees’ jurisdictional position (John Marshall, William Johnson, John McLean, and Henry Baldwin), two upheld the Cherokee position (Smith Thompson and Joseph Story), and one was absent (Gabriel Duvall). In a sense, the Cherokee decision might best be described as a two, two, two split, with Marshall and McLean deciding that the Court did not have original jurisdiction but that the Cherokees were entities with specific rights. Those rights and the definitions of tribal nations were the most significant aspects of the opinions and remain crucial in interpreting American Indian law. Baldwin and Johnson decided that the Cherokee were not a state and had very few, if any, rights. Story and Thompson, on the other hand, decided that the Cherokees were entitled to original jurisdiction as a foreign state with independent legal and political rights. In another, broader...
- The Spaniards pursued the Indians with bloodhounds, like wild beasts; they sacked the New World like a city taken by storm, with no discernment or compassion; but destruction must cease at last and frenzy has a limit…. The conduct of the Americans of the United States toward the aboriginals is characterized, on the other hand, by a singular attachment to the formalities of law. The Spaniards were unable to exterminate the Indian race by those unparalled atrocities which brand them with indelible shame … but the Americans of the United States have accomplished this … purpose with singular felicity, tranquility, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.
- To the Cherokee people, these cases mean even more. Knowing the story of the To non-Indians, these cases are remembered primarily for the response they purportedly elicited from President Andrew Jackson: “Marshall has made his law, now let him enforce it.”
- tell this story from the perspective of Cherokee tribal leaders. Thomas Jefferson had earlier spoken to a Cherokee delegation in Washington about the regularity of law, and even earlier, George Washington had talked to Cherokee delegates about Magna Carta and the Rule of Law.
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Copyright Page 1 result
- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: June 4th, 2008
- ISBN: 9781599410012
- Subject: Race and the Law
- Series: Law Stories
- Type: Overviews
- Description: This publication brings to life well-known and not-so-well known legal opinions that address slavery, Native American conquest, Chinese exclusion, Jim Crow, Japanese American internment, immigration, affirmative action, voting rights, and employment discrimination. Each story goes beyond legal opinions to explore the historical context of the cases and the worlds of the ordinary people and larger-than-life personalities who drove the litigation process. The book’s multiracial and interdisciplinary approach makes it useful for courses on race and the law and Critical Race Theory both inside and outside the law school. Each story illuminates the role the law has played in both creating and combating racial inequality.