Critical Race Theory
Antiracist Expert Evidence
This Article introduces “antiracist expert evidence,” an underutilized tool to prove racism in court. Based on a nationwide survey of defense attorneys, it explores the evidence’s utility, identifies barriers to use, and offers strategies to overcome them, aiming to begin to level the evidentiary playing field for criminal defendants.
Race, the Academy, and The Constitution of the War on Drugs
David Pozen’s new book chronicles the constitutional arguments that American litigants once deployed to protect a “right” to use drugs. This Review supplements and critiques Pozen’s important contribution, situating his findings within a broad backdrop of race, crime, and the judiciary’s eagerness to just say “yes” to the drug war.
Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era
Relying on insights from Critical Race Theory and feminist legal theory, this Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. The Note argues that our shared constitutional memory has been artificially narrowed by underconsideration of freedpeople’s constitutional theories and claims.
“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation
The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest convergence and offers a promising path toward racial equality.
The Critical Racialization of Parents’ Rights
The anti-CRT movement is intertwined with the trend toward parents’ rights, which complains that official educational policies usurp fundamental parental rights. This Feature shows how these “twin” movements against CRT and for parents’ rights center White parents’ rights and the protection of White children for the benefit of White supremacy.
Dismantling the Master’s House: Reparations on the American Plantation
In southeastern Louisiana, plantations still line the Mississippi River, surrounded by Black communities who experience these estates as sites of racialized harm. This Note explores the use of eminent domain to achieve land-based reparations for these descendants and draws lessons for reparations at other sites of historical and continued subjugation.
Reckoning with Race and Disability
Intersectionality surfaces the experiences of disabled people of color, but it tells us less about the malleability of this type of discrimination. This Essay contends that aesthetic theories of structural subordination can supplement emerging discussions on intersectionality by underscoring the visual and emotional roots of racial and disability discrimination.
Black Progressivism and the Progressive Court
This essay discusses Black progressive texts – Thomas Fortune’s Black and White, Ida Wells’s The Reason Why, and two statements of the Niagara Movement – and explores how the themes they developed contain a critique of the underlying rationales of the Supreme Court’s jurisprudence of the same period.
Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community entitled to self-governance.
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.
Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience
This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.
Ending the Incarceration of Women and Girls
Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.
Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony
In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of rights in a colony.
Who Locked Us Up? Examining the Social Meaning of Black Punitiveness
In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America, Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritarianism contextualizes black punitive sentiment within antisubordination criminal law theory.
What About #UsToo?: The Invisibility of Race in the #MeToo Movement
The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.
Pregnancy, Poverty, and the State
In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend beyond, Bridges’s analysis.
Reading Michigan v. Bryant, “Reading” Justice Sotomayor
What are we to make of Justice Sotomayor’s criminal procedure jurisprudence? In this Essay, Professor I. Bennett Capers attempts to answer that question by offering three readings of her Confrontation Clause decision in Michigan v. Bryant. All three close readings, coupled with details from her memoir, serve as the basis for a “reading” of Justice Sotomayor. In toto, these readings reveal Justice Sotomayor to be precedent-bound, except when she’s not, and to be progressive, but not above using conservative methodologies to get her way. Ultimately, Professor Capers suggests that her approach offers some heartening signals and some possible dangers, but also reasons to hope.
Race and the Disappointing Right to Counsel
122 Yale L.J. 2236 (2013). Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This Essay is doubtful that better lawyers will significantly address that problem. When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of innocence claims at trial, issuing important, pro-defense decisions in the areas of confrontation, jury factfinding, the right to present a defense, and elsewhere. The Court’s second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly, attempting to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement, and in sentencing practices are essentially unchallengeable. Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions.