Tuesday, September 15, 2020

I thought I never personally experienced racism. Then I realized I just normalized it. (by Prof. Njeri Rutledge)


Recently, I realized that my success comes from my ability, as a Black woman, to normalize and dismiss the racism I face everyday.

I am a graduate of Harvard Law School; a law professor; a municipal judge; a wife and mother. By any measure, my life is an example of success. But that success has come at a steep price, paid for by denying my pain.

As a Black woman in America, I make the daily decision to either call out and challenge the routine subtle racism I experience — and as a consequence be labeled as angry — or ignore the racial cuts, pretending with a smile that the resulting wound doesn’t hurt. This choice is exhausting, yet until recently, it’s one I didn’t even realize I was making.  

This summer, a white colleague recently asked if I had ever personally experienced racism. I instinctively said no. I didn’t have any singular life-threatening racial incident, nor been the victim of police abuse. Sure, crosses had been burned in my neighborhood when I was a child in Nashville, but not on my yard. I later found myself inexplicably angry — first at my colleague, and later, at myself.

Why, in that reflexive denial, was I equating the absence of violent racism with the absence of all racist slights directed my way? In a sobering moment, I realized that my success (and that of many people of color) stems from our ability to normalize daily racism. Indeed, our survival as healthy adults depends on it, even if — or perhaps because — it means denying the resultant pain. Like others, I had become a master of wearing a mask.

Children learn racism early

Racism has long been a dangerously regular part of American life. So interwoven in our nation’s fabric, its pervasiveness has made it seem normal — hence deniable. The normalization of racism props up a powerful façade of acceptability, even to its victims. Minimizing the daily abusive reality of people of color is in many ways more corrosive to the ideals of equality, and harder to eliminate, than the violent extremes

For me, normalizing racism began when I was 7 years old. I cried when my mother told me she would be fired for being late to work, because I thought she meant she would actually be set on fire, just like the house of the other Black family a few blocks away.

A few years later, when I was only a 10 year old playing in my front yard, I was referred to as the N-word. This was the first time but not the last. And, like WNBA superstar A’ja Wilson, I too was "uninvited" from a birthday sleepover in the fourth grade. My friend told me her dad didn’t like Black people. I was heartbroken, but I simply smiled to hide the hurt. I learned the painful lesson that I was not her friend, I was her Black friend. I have experienced countless examples of similarly-hurtful treatment.

Beyond mere survival

Witnessing violent racism against other people of color also contributes to the insidious normalization of racism, and is equally traumatic. Whenever my husband and I visit Jasper, Texas, we visit the memorial to his relative, James Byrd Jr., the Black man chained to the back of a pickup truck and dragged to his death in 1998. Byrd’s heinous death, plus the vandalism that continues to demean his memorial, inflicts collateral damage on us, our family, and our nation.

Have I ever personally experienced racism? Every. Single. Day. I am soul-achingly tired. Tired of denying, minimizing, and dealing with racism. Tired of waking my daughter up from nightmares where she’s asking me if the police are going to kill us. Tired of a lifetime of conversations about racism, service on diversity committees, and participation in anti-racism workshops. Tired of being terrified every time my gentle, educated Black husband leaves our house, he will be the victim of police violence.

It is time for me — and others — to take off our masks. For the sake of survival, I would minimize racism and hide its pain. But I can no longer normalize the unacceptable. None of us should. If Americans want to build a society that truly reflects our nation’s "self-evident" truths in our Declaration of Independence, we must all identify racism for what it is, working together to ensure a new normal.


This article originally appeared in USA Today on 9/15/20. Read it here.

Njeri Mathis Rutledge is a professor of law at South Texas College of Law Houston. Follow her on Twitter: @NjeriRutledge 


September 15, 2020 | Permalink | Comments (0)

Saturday, September 12, 2020

New Book: Islamophobia and the Law


This is a new book, Islamophobia and the Law (Cambridge University Press 2020), edited by Cyra Akila Choudhury and Khaled Beydoun. Here is the description:

Islamophobia and the Law is a foundational volume of critical scholarship on the emerging form of bigotry widely known as Islamophobia. This book brings together leading legal scholars to explore the emergence and rise of Islamophobia after the 9/11 terror attacks, particularly how the law brings about state-sponsored Islamophobia and acts as a dynamic catalyst of private Islamophobia and vigilante violence against Muslims. The first book of its kind, it is a critical read for scholars and practitioners, advocates and students interested in deepening their knowledge of the subject matter. This collection addresses Islamophobia in race, immigration and citizenship, criminal law and national security, in the use of courts to advance anti-Muslim projects and in law and society.

Chapter contributions by: Khaled Beydoun, Leti Volpp, Susan Akram & Kevin Johnson, Karen Engle, Cyra Akila Choudhury, Sahar Aziz, Abed A. Ayoub, Amna Akbar, Aziza Ahmed, Muneer Ahmad, Karen Ellis Rhone, Faisal Kutty, and SpearIt.

September 12, 2020 | Permalink | Comments (0)

Friday, September 11, 2020

California Western School of Law Hiring in Criminal Law, Contracts and Legal Writing

 The California Western School of Law is soliciting applications for these positions and welcomes applications from individuals who would contribute to the vibrancy and diversity of the law faculty.

From the hiring committee:
California Western School of Law (CWSL) is seeking applications from entry-level and lateral candidates for two tenured or tenure-track positions and one to begin on or about August 1, 2021. We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. We are especially interested in candidates with a strong desire to teach Criminal Law, Criminal Procedure, or Contracts.
We are also seeking applications for a full-time Legal Skills Professor. The initial appointment is for two years, with possible re-appointment and long-term non-tenure-track status. Responsibilities include teaching two sections of Legal Skills I (objective analysis, writing, and research) in the fall and two sections of Legal Skills II (persuasive writing and oral advocacy) in the spring. Legal Skills Professors participate in the faculty governance of the law school.
Application materials should include a cover letter, C.V., research agenda, and a diversity statement that addresses how you will contribute to CWSL’s goal of creating a diverse faculty. Please direct application materials and questions to the chair of the Appointments Committee, Professor Ken Klein, at kklein@cwsl.edu.


September 11, 2020 | Permalink | Comments (0)

Thursday, September 10, 2020

Critical Race Studies & Williams Institute Richard Taylor Law Teaching Fellowship


From the Fellowship organizers:

UCLA Law’s Williams Institute and Critical Race Studies Programseek applications for the Richard Taylor Law Teaching Fellowship for 2021-2023. Applicants who intend to pursue a career as an assistant professor of law are invited to apply if their research interests concern topics at the intersection of race/racism, sexual orientation, and gender identity.

We invite applications from those working in law, policy, and other disciplinary traditions such as the various social sciences, ethnic studies, history, etc. Applicants should have a research agenda that centers questions of sexuality (broadly defined), gender identity, race, and racism in any of the diverse law and policy domains, such as criminal justice, family law, employment discrimination, housing discrimination, to name just a few. We seek candidates who will bring our two programs together, infusing each with the ideas and work of the other.

The law teaching fellowship programs of The Williams Institute and Critical Race Studies at UCLA Law are some of the oldest in the nation. Together, they have supported over twenty law teaching fellows secure tenure track jobs. Past fellows have secured faculty positions at top law schools including Georgetown, Michigan, UCLA, UC Irvine, Wisconsin, and Yale.


For more information and to apply, please see here: https://recruit.apo.ucla.edu/JPF05837

September 10, 2020 | Permalink | Comments (0)

Tuesday, September 8, 2020

Critical Race Studies 2020-21 Book Series

From the Series organizers:

We’re thrilled to invited you to the first two events in our CRS 2020-21 Book Series. We hope that you can join us for what we know will be timely and engaging conversations on some of today’s most pressing issues:

Wednesday, Sept 16, 12-1:30pm PST: Inventing Latinos: A New Story of American Racism by Laura E. Gómez, in conversation with Cheryl I. Harris


Please join us for the inaugural event in our CRS 2020-21 Book Series, where Cheryl I. Harris will be in conversation with author and Critical Race Studies Faculty Director Laura E. Gómez on her recently released book, Inventing Latinos: A New Story of American Racism. Please RSVP here to receive the Zoom link.

““In this thoughtfully argued study . . . Gómez provides much-needed insight into the true complexity of Latinx identity while revealing the ways in which the dominant culture continues to mask the many racist currents within American society. An insightful and well-researched book.” — Kirkus Reviews

“Written with exceptional clarity and drawing on deep research, Inventing Latinospresents not only a brilliant account of the changing position of Latinxs, but also a nuanced understanding of racism in the U.S. today.” — Howard Winant, co-author of Racial Formation in the United States.


Wednesday, Oct 14, 12-1:30PM – CRS Book Series: Settler Colonialism, Race and the Law: Why Structural Racism Persists by Natsu Taylor Saito, in conversation with E. Tendayi Achiume


Settler Colonialism, Race, and the Law provides a timely analysis of structural racism at the intersection of law and colonialism. Noting the grim racial realities still confronting communities of color, and how they have not been alleviated by constitutional guarantees of equal protection, this book suggests that settler colonial theory provides a more coherent understanding of what causes and what can help remediate racial disparities. Please join us for an conversation with author Natsu Taylor Saito, in conversation with E. Tendayi Achiume, UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance and Professor of Law, UCLA School of Law. You may RSVP here to receive the Zoom link.

September 8, 2020 | Permalink | Comments (0)

Supreme Court Justice Mildred Lillie: What Might Have Been (Prof. Bernard Bell)

Lille and five other shortlist candidates for Court

(Mildred Lillie is second from rights and Sylvia Bacon is third from left)

A leading torts casebook, Franklin, Rabin, etc., Tort Law & Alternatives, begins with a California appellate decision, Hammontree v. Jenner, 20 Cal.App.3d 528 (Ct. App. 1971).  The case focuses on whether a driver who has a history of controlled epilepsy and suffers a sudden-onset epileptic seizure is subject to liability without fault or only negligence liability.[1]  Professors, and no doubt students, pay little attention to the name of the judge who authored the opinion, which appears as “Lillie, J.”  But in thinking about whether the identity of the judicial authors of the decisions included in the Franklin & Rabin casebook might help me give students an understanding of the diversity on the bench,[2] I decided to look into the identity of “Lillie, J.”  The judge’s full name was Mildred L. Lillie.  Judge Lillie’s gender is noteworthy by itself, given the limited opportunities for women in the legal profession at the time.  But there’s a story beyond that.  It turns out Judge Lillie could have been an Associate Justice of the U.S. Supreme Court instead of either Lewis Powell or William Rehnquist.

Lillie graduated from Boalt Hall in 1938.  Her pre-judicial career included positions as a deputy city attorney in Alameda California, and an Assistant U.S. Attorney, as well as some time in private practice.  Lillie was first appointed to the bench in 1947 by California’s Republican Governor, and soon to be Chief Justice of the United States, Earl Warren.  In 1958, Governor Goodwin Kinght elevated her to the Second District Court of Appeal.  Lille wrote the opinion in Hammontree v. Jenner in 1971 — the opinion was issued on October 14 to be exact. 

Meanwhile President Richard Nixon, himself having been a California politician before becoming President, was attempting to fill two vacancies on the U.S. Supreme Court left by the retirements of Justices John Marshall Harlan II and Hugo Black.  His first two nominations Clement Haynesworth and G. Harold Carswell had failed, largely because of opposition from the Democratic majority in the U.S. Senate.  The President was getting pressure to appoint a woman to the Court (particularly from his wife), though privately he was reluctant to select a woman.  See here and here.

Nevertheless, two women were among the six lawyers rumored to be on Nixon’s shortlist for the vacancies, Mildred Lillie and Sylvia Bacon, whose work in the U.S. Department of Justice had earned her a reputation for being tough on crime.

Nixon’s Attorney General, John Mitchell, believed Lillie a particularly good choice for one of the vacancies. She was a Democrat, and thus might be more palatable to Senate Democrats, but also conservative.  Mitchell noted that California’s Democratic Governor, Pat Brown, had already rejected Lille for a seat on the California Supreme Court as too conservative.  (In 1962, Nixon had lost his bid to unseat Governor Brown, one of the low points in Nixon’s career.[3])

However, Harvard Law School Professor Laurence Tribe harshly criticized Lillie’s qualifications.  (In a 2009 interview recalling that time, he described Lillie as “both right wing and stupid”).  Even worse for Lillie, the American Bar Association Standing Committee on the Federal Judiciary found Lillie was unqualified for the U.S. Supreme Court by an 11-1 vote.  After the ABA Committee vote, Nixon had the following exchange with Attorney General John Mitchell.

RN: The woman thing, that's got to get out [to the press] some way. I mean, naturally the [ABA] vote will get out, won't it? Everything else has leaked out of there. Now believe me, we're going to leak this out if they don't.

JM: You can rest assured we'll get it out one way or the other. And Walsh knows it's coming. He's been well programmed -

RN: And the eleven to one [vote]?

JM: Yes.

RN: And I think the eleven to one is brilliant, because it's a stacked jury. All men. Huh?

JM: Absolutely.

RN: And [the committee said] she's the best qualified woman but she's not qualified for the Supreme Court. Jesus, that's great.

On October 21, 1971, a week after the decision in Hammontree, Nixon nominated Lewis Powell and William Rehnquist for the Supreme Court vacancies.  Both were confirmed.  Lillie continued serving on the California appellate court until her death in 2002.

A book published by the NYU Press earlier this year, Hannah Brenner Jonhson & Renee Knake Jefferson, Shortlist: Women in the Shadows of the Supreme Court, discusses Judge Lillie, Sylvia Brown, and several other potential female Supreme Court nominees before the nomination of Sandra Day O’Connor. 

Jefferson & Johnson: It was in the midst of our Supreme Court media study that we stumbled upon that article. We were shocked to learn that Nixon had shortlisted Sylvia Bacon, a judge from Washington, D.C., and Mildred Lillie, a judge from California, as he was faced with two vacancies on the court. We had never heard of these women and were unaware that any women had been considered for the court before O’Connor. We were shocked at the way Lillie was described by the author as having “maintained a bathing beauty figure.” It was absurd that an individual considered as a nominee for the nation’s highest court would be critiqued based on her appearance in a swimsuit. We also were struck by the author’s reference to her childless status.

Although we understood that this commentary was consistent with the pervasive sexism of that era (and the findings of our media study), we were more curious about the notion that other women had been shortlisted before O’Connor. And so began our journey through presidential papers, news accounts and private archives. We learned that indeed, nine women had been shortlisted but never selected for the Supreme Court, dating back as far as the 1930s.


-- By Professor Bernard Bell, Rutgers Law School


[1] The case has civil rights implications in terms of the opportunities for the disabled to participate fully in society.  I discuss using the case to have such a conversation in Bernard W. Bell, The Wide World of Torts: Reviewing Franklin & Rabin's Tort Law and Alternatives, 20 Seattle U. L. Rev. 1, 20-22 (2001). https://digitalcommons.law.seattleu.edu/sulr/vol25/iss1/1/

[2] The judges most often featured in traditional torts casebooks, such as Holmes, Cardozo, Hand, Traynor, and Posner, tend to be white men, and students could easily assume that all the judges authoring opinions have a similar background.  I have decided to look into the identity of authors of the opinions in my casebook to falsify that assumption.  For some time I have known that Justice Alan Page of the Minnesota Supreme Court, and author of one of the decisions in Franklin & Rabin, is African-American and a former professional football player.

[3] In his press conference following his defeat, Nixon asserted: “as I leave you I want you to know—just think how much you’re going to be missing. You won’t have Nixon to kick around anymore, because gentlemen, this is my last press conference, . . .” (Emphasis added.)


September 8, 2020 | Permalink | Comments (0)

Monday, September 7, 2020

Critical Race Studies Symposium


Please save the dates of September 24th and 25th, 2021 for the resecheduled CRS symposium honoring the work and legacy of our own Jerry López and a belatedly celebrating the 20th anniversary of CRS.

Gerald P. López published Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice in 1992. For three decades, the book has reverberated across the United States and other countries too—challenging the color-blind, experts-rule approach of conventional "public interest law" and providing an alternative radical vision for how to practice problem solving. That radical vision has triggered fundamental changes in progressive work of all sorts, in clinical and, more broadly, legal and university-wide education, and in how bloggers, journalists, professionals, and scholars debate how lawyers might most likely become co-eminent allies with clients, communities, and movements militant in their efforts to transform the world. Race, racism, and anti-racism – challenging subordination and authoritarianism in all forms – are at the center of López's vision, and UCLA Law's Critical Race Studies program (CRS) is honored to devote its 20th Anniversary Symposium to looking at rebellious lawyering past, present and future.


September 7, 2020 | Permalink | Comments (0)

Monday, August 31, 2020

LatCrit Fridays: A Virtual Symposium Series: Policing, Pandemics, Praxis & Power 


From the symposium organizers:

During these challenging times, critical conversations have become more important than ever. Critical conversations, always profoundly political in nature, have become an imperative tool in the struggle for liberation and against fascism, white supremacy, and austerity. In response to current events and sensible efforts to postpone major critical conferences in legal academia,  LatCrit is inviting all community members to a series of conversations addressing issues of the moment. These conversations - titled collectively LatCrit Fridays: A Virtual Symposium Series: Policing, Pandemics, Praxis & Power - will feature LatCrit community members who are doing scholarship, activism, and praxis in these areas. We invite the community to participate in these conversations and offer this space to do so. We also hope to continue producing knowledge and building beloved critical communities of solidarity, even during a time when prudence requires distancing and sheltering in place. 

For Fall we have scheduled three virtual meetings for the community and its friends. All conversations will be held virtually. Registration information and descriptions are below. If you have any questions, please contact Saru Matambanadzo at smatamba@tulane.edu. 


Criminal (In)Justice, Policing & Power (September 4, 2020) 

We will begin the conversations next Friday, September 4, 2020, from 11:00 a.m. to 12:45 p.m. EST. We will host a virtual conversation focused on criminal law, race, and social movements entitled Criminal (In)Justice, Policing & Power. 


Featured Participants: 

Stewart Chang, Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law 
Anthony Farley, James Campbell Matthews Distinguished Professor of Jurisprudence at Albany Law School 
Aya Gruber, Professor of Law, University of Colorado Law School 
SpearIt, Professor of Law, Thurgood Marshall School of Law 

Please register in advance for this meeting: 


After registering, you will receive a confirmation email containing information about joining the meeting. 

Pandemics and the Crisis of Care (October 9, 2020) 

The conversation will continue Friday, October 9, 2020, from 11:00 a.m. to 12:45 p.m. EST. We will host a virtual conversation focused on care and work in the current moment entitled Pandemics and the Crisis of Care. 

Featured Participants: 

Shelley Cavalieri, Professor of Law, University of Toledo, College of Law 
Cyra Akila Choudhury, Professor of Law, Florida International University College of Law 
T. Anansi Wilson, Adjunct Professor of Law, University of California, Hastings School of Law 
Lua Kamal Yuille, Professor of Law, University of Kansas School of Law 


Please register in advance for this meeting:  

After registering, you will receive a confirmation email containing information about joining the meeting. 


Law, Democracy, and Politics After the Deluge (November 6, 2020) 

The final conversation of the Fall series will be Friday, November 6, 2020, from 11:00 a.m. to 12:45 p.m. EST. We will host a virtual conversation focused on politics and the election entitled Law, Democracy, and Politics After the Deluge. 


Featured Participants: 

Nadia Ahmad, Associate Professor at Barry University School of Law 
Khaled Beydoun, Professor of Law Wayne State School of Law 
Atiba Ellis, Professor of Law, Marquette University Law School 
Athena Mutua, Professor of Law & Floyd H. & Hilda L. Hurst Faculty Scholar, University at Buffalo School of Law 
Christian Sundquist, Professor of Law, Albany Law School 


Please register in advance for this meeting:  

After registering, you will receive a confirmation email containing information about joining the meeting. 


August 31, 2020 | Permalink | Comments (0)

Saturday, August 29, 2020

Remembering Katrina - Lessons for COVID


To mark the 15th Anniversary of Hurricane Katrina, the ABA Standing Committee on Legal Aid and Indigent Defense (SCLAID) together with the Deason Criminal Justice Reform Center at SMU Law School, the ABA Criminal Justice Section and the ABA Section on Civil Rights and Social Justice present webinars on the impact of crisis on two key components of the criminal justice system: Jails and Prisons, and Public Defense. The programs will consider what happens to people trapped in the criminal justice system during times of extreme systemic stress and whether or not such times of crisis can be catalysts for reform.


These programs are free and open to the public.  They have not been accredited for CLE.

Monday, August 31, 2020:  3:30 pm – 5:00 pm ET

Left to Die: Incarceration from Katrina to COVID

Introduction – Judy Perry Martinez, Immediate Past President, American Bar Association

  • Eric Balaban, National Prison Project of the ACLU
  • Meghan Garvey, New Orleans Public Defender
  • Brendon Woods, Public Defender Alameda County, California
  • Moderator: Malia Brink, ABA SCLAID


Tuesday, September 1, 2020: 3:30 pm – 5:00 pm

Public Defense Reform from Crisis: Katrina to COVID

Introduction – Judy Perry Martinez, Immediate Past President, American Bar Association

  • Derwyn Bunton, Chief Public Defender, Orleans Parish, LA
  • Frank Neuner, Managing Partner, NeunerPate
  • Jason Williamson, Deputy Director, ACLU Criminal Law Reform Project
  • Moderator: Pamela Metzger, Deason Center, Southern Methodist University



For more information or to register, click on the individual program links above or visit the ABA SCLAID website.

August 29, 2020 | Permalink | Comments (0)

Tuesday, August 25, 2020

New Article: Reimagining the Death Penalty: Targeting Christians, Conservatives


The death penalty represents one of the most unfair and unjust practices that underscores the undervaluation of black life. This article, Reimagining the Death Penalty: Targeting Christians, Conservatives has just been published by the Buffalo Law Review and is available for download. From the abstract:

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies in the struggle, who share overlapping ideologies and goals. The same holds true for Christians—there is much in the teachings of Jesus to suggest that he aligned more with forgiveness than capital retribution. As such, abolitionists would do well to focus on these demographics more earnestly than in the past. The notion of “culture work” underscores these groups as natural allies in the quest to end the death penalty.

August 25, 2020 | Permalink | Comments (0)

Thursday, August 20, 2020

"Trade War, PPE, and Race" - new article by Professor Ernesto Hernandez

Professor Ernesto Hernandez of the Dale Fowler School of Law, Chapman University, has posted "Trade War, PPE, and Race" on SSRN.  The abstract is given below, and here is a link to the text: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3647947


Tariffs on Personal Protective Equipment (PPE), such as face masks and gloves, weaken the American response to COVID. The United States has exacerbated PPE shortages with Section 301 tariffs on these goods, part of a trade war with China. This has a disparate impact felt by minority communities because of a series of health inequity harms. COVID’s racial disparity appears in virus exposure, virus susceptibility, and COVID treatments. This essay makes legal, policy, and race-and-health arguments. Congress has delegated to the U.S. Trade Representative expansive authority to increase tariffs. This has made PPE supplies casualties of the trade war. In political terms, the Trump administration has prioritized increasing tariffs over public health readiness. Regarding race, PPE shortages exemplify the socio-economic effects of trade policies and add to COVID’s racial disparities.


August 20, 2020 | Permalink | Comments (0)

Monday, August 17, 2020

Chapter on Implicit Bias in Criminal Justice


The chapter, Implicit Bias in Criminal Justice: Growing Influence as an Insight to Systemic Oppression (The State of Criminal Justice 2020 (American Bar Association 2020)), has been posted on SSRN. Here is the abstract:

Implicit bias continues its rise as an increasingly important concept among advocates of criminal justice reform. Also known as “unconscious” or “nonconscious” bias, the idea in recent years has enjoyed greater acceptance as a means of understanding how bias and bigotry can impact the decisionmaking of actors at all levels of the criminal justice system. Taken wholly, the decisionmaking creates structural biases against certain social outgroups. Implicit bias helps to explain some of the disproportionate and disparate aspects of the criminal justice system, and especially why prosecution and punishment are heavily skewed against certain groups. There are ample opportunities for the biased attitudes to manifest throughout the process, which effectively work to the detriment of those entangled in the system, from suspects to defendants to prisoners, probationers, and parolees. Of course, the first movers of this system are the police, but other parties include prosecutors, defense counsel, judges, and juries, among other officials in the system whose decisionmaking is susceptible to implicit bias. Even legislators who write the laws are susceptible. This chapter aims to describe this concept and the main challenges that implicit bias presents to the administration of criminal justice.


August 17, 2020 | Permalink | Comments (0)

Friday, August 14, 2020

PODCAST - She Speaks: Academic Muslimah

Philosophy Professor Saba Fatima, a philosophy professor at Southern Illinois University Edwardsville has a podcast, She Speaks, Academic Muslimah. Available on Apple Podcast and Spotify.

Muslimah is the feminine form of the word Muslim in Arabic. Professor Fatima speaks to academic Muslimahs about their research and life experiences. The episodes are released every other Friday only during the fall and spring semesters. She started the podcast because she sought to create a platform to discuss all things Muslim, women, and academia. I was recently a guest on Season 3 of her program to discuss elections 2020, mass incarceration, BLM, the need for the Green New Deal, and the impact of climate change on people of color. 


August 14, 2020 | Permalink | Comments (0)

Thursday, August 13, 2020

"Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments" - new article by Professor Sonia Gipson Rankin

Professor Sonia Gipson Rankin of the University of New Mexico School of Law has posted "Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments", which will appear in the Washington and Lee Law Review.  Here is the abstract:

Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth of race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.

August 13, 2020 | Permalink | Comments (0)

Monday, August 10, 2020

First-of-its-Kind Millennial/Xennial Scholars Roundtable on the Future of Legal Education - by Professor Veronica Gonzales-Zamora

In an effort to build community and inspire collective action, my co-moderator Marcus Gadson of Campbell School of Law in Raleigh and I invited 30 millennial (born between 1981-1997) [1]  and xennial (1977-1983) [2]  law scholars from 23 different institutions to join a Millennial/Xennial Scholars Roundtable on July 13. The purpose was to discuss the impact of COVID-19 and the Black Lives Matter (BLM) movement on legal education. This is the first explicitly generation-based gathering of Millennial/Xennial law professors in the U.S. in law academia.

The idea for a roundtable was born when I began researching for a work-in-progress about the experience of millennials/xennials in the legal academy, with an emphasis on millennial women of color, an underrepresented group.[3]  Finding that there were not enough diverse voices from other millennial law professors from which to conduct my research, [4]  I set out to learn about the experiences of others in my cohort. A quick email to a couple of listservs and to colleagues I met at the AALS New Law Teachers Conference in 2019 led me to 30 different scholars, primarily BIPOC (Black, Indigenous, and other People of Color), including Professor Gadson, who offered to help. Together, we coordinated the program and invited these junior scholars from across the country to both create community and foster collaboration.

The Roundtable offered a chance for participants to build community over our shared worldview as a generational cohort and to reflect on the impact of race, class, gender, and place on our collective and individual identities. The scholars who participated in the Roundtable represented a variety of academic disciplines as diverse as our experiences. The expertise of the group included, for example, civil procedure, immigration, aging, clinical law, medicine, feminist legal theory, food justice, and community organizing to name a few. The agenda boasted an all-women group of mentors and renowned scholars including Professor Margaret Montoya (Latino/a critical race theory scholar), Professor Meera E. Deo (empirical data scientist studying barriers for underrepresented faculty), and Dean Laura Rosenbury (feminist legal theory scholar).

 “The convergence of the BLM movement with the COVID-19 pandemic with its disproportionately severe effects on Black and Latinx communities creates an opening that is particularly salient for millennial/xennial law professors. The street protests have been organized and led by inspiring young activists. Their counterparts in the legal academy, especially young law faculty of color, have compelling stories, a range of new skills, and innovative analyses to enrich and transform the legal academy’s culture and future trajectories. In this time of upheaval, they can chart new directions,” said Professor Margaret Montoya, Professor Emerita of Law and Visiting Professor in University of New Mexico’s Department of Family & Community Medicine, who presented at the Roundtable as a mentor.

Several law professors shared the challenge of being the only millennial or xennial law professor on their faculty. Professor Meera E. Deo noted the challenges in data collection amongst law faculty, [5]  making it difficult to know how many millennial/xennial law faculty there are in the legal academy. University of New Mexico School of Law, for example, has five law professors in the cohort including me, Joseph Gallardo, Alejandro Rettig y Martinez, Joseph Schremmer, and Lysette Romero Córdova. While this age cohort is growing in number, the general decline and latest freezes in hiring [6] and declines in admissions indicate that our cohort may be underrepresented in the legal academy in the future.

One thing I found interesting was that several young faculty of color reported that they had been mistaken for law students rather than being recognized as law professors. My research centers around the invisible labor that comes with overcoming biases about who does and does not ‘look like a law professor.’ Students may be signaling that they expect young people of color in their diverse student bodies but not necessarily in their law faculty, who are primarily older white males. Young faculty of color are burdened with the need to first build credibility in order to overcome presumed incompetence based on race, gender, and age, [7]  but some never overcome it. Once you factor in the disparities inherent in being the first generation to have experienced two economic recessions during our early careers, [8]  you see that we have our work cut out for us among students and colleagues.

Professors Alexander Boni-Saenz and Troy Andrade discussed the need for anti-racism policies to permeate every part of the curriculum, such as student evaluations, tenure review, and grant opportunities, beyond the statements issued by law faculty. Professors Lysette Romero Córdova and Kinda L. Abdus-Saboor shared the impact of the pandemic on women of color, both students and faculty who may be juggling classwork with caregiving responsibilities. Others shared that their faculty will sometimes not take their ideas seriously or will request that the youngest faculty on committees do the bulk of the administrative work without recognizing their contributions.

“The Roundtable was an incredible bonding experience. It was helpful to see a group of young scholars all encountering common challenges and being passionate about lifting up diverse voices and tackling difficult issues in the academy. The Roundtable was hopefully the first of many and we plan to continue meeting, whether to discuss how we can innovate in legal education, use our knowledge and resources to advance the cause of justice, or help each other produce scholarship at the highest level,” says Professor Gadson. This fall, Professor Gadson and I are working with others in our cohort to submit for publication a collection of essays developing the ideas discussed at the Roundtable.


[1] Millennials are defined as anyone born between 1981-1996. See Michael Dimock, Defining Generations: Where Millennials End and Generation Z Begins, Pew Research Center (Jan. 17, 2019), https://www.pewresearch.org/fact-tank/2019/01/17/where-millennials-end-and-generation-z-begins/.

[2] Shana Lebowitz, There’s A Term for People Born in the Early 80s Who Don’t Feel Like a Millennial or a Gen X-er – Here’s Everything We Know, Business Insider (Mar. 10, 2018, 6:45 PM), http://www.businessinsider.com/xennials-born-between-millennials-and-gen-x-2017-11.

[3] There has been some interest in the topic, variations of which were selected for presentation at the 2021 AALS Annual Conference. For example, the Section on Aging and the Law panel on Intersectionality, Aging, and the Law selected for presentation my paper on millennial women of color and Professor Alexander Boni-Saenz’s paper on age diversity. The Women in Legal Education AALS Panel on Gender, Power, and Pedagogy in the Pandemic also selected for discussion my topic on the consequences of social isolation for “super-moms” in the academy.

[4] There is some scholarship describing the experience of millennial law faculty, in some cases authored by millennial and xennial law faculty. See, e.g., Ashley Krenelka Chase, Upending the Double Life of Law Schools: Millennials in the Legal Academy, 44 U. Dayton L. Rev. 1 (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3167442. See also Millennial Leadership in Law Schools: Essays on Disruption, Innovation, and the Future (Ashley Krenelka Chase ed., to be published by Hein in 2020) and Call for Proposals (May 29, 2019), http://www.legalscholarshipblog.com/2019/05/29/call-for-proposals-millennial-leadership-in-law-schools/ (“[This book] will seek to explore the role millennials will play – as faculty, administrators, or staff members – in shaping the future of legal education.”).

[5] See generally Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia (2019), https://www.sup.org/books/title/?id=25601.

[6] See Sarah Lawsky, Spring Self-Reported Entry Level Hiring Report 2019, PrawfsBlog.blogs.com (June 04, 2019), https://prawfsblawg.blogs.com/prawfsblawg/2019/06/spring-self-reported-entry-level-hiring-report-2019.html  (indicating that in 2012 there were 143 total entry-level hires at 96 schools and in 2019 there were 82 total entry-level hires at 60 schools, based on self-reports). See also Dr. Karen Kelsky, “Incomplete/Unofficial/Unconfirmed List of Schools That Have Announced Hiring Freezes or Pauses,” The Professor Is In. (Apr. 18, 2020) https://m.facebook.com/TheProfessorIsIn/posts/2968340353212492 (click on google document) (indicating as of Aug. 10, 2020 that 408 higher education institutions nationwide have announced hiring freezes or pauses based on self reports).

[7] See generally Renee N. Allen, & DeShun Harris, #SocialJustice: Combatting Implicit Bias in an Age of Millennials, Colorblindness, & Microaggressions, 18 U. Md. L.J. Race Relig. Gender & Class 1 (2018), https://digitalcommons.law.umaryland.edu/rrgc/vol18/iss1/18.

[8] See Zoe Fenson, For Millennials ‘once in a generation‘ came around twice, The Week (June 30, 2020), https://theweek.com/articles/918127/millennials-once-generation-came-around-twice. See also Catherine Bosley et al., How millennials are being set back by back-to-back global crises, Fortune (Apr. 11, 2020), https://fortune.com/2020/04/11/millennials-coronavirus-great-recession-economy-personal-finance/; Hannes Schwandt & Toll von Wachter, Unlucky Cohorts: Estimating the Long-Term Effects of Entering the Labor Market in a Recession in Large Cross-Sectional Data Sets, 37 J. of Labor Econ. S161 (2019), https://www.journals.uchicago.edu/doi/10.1086/701046.

Verónica C. Gonzales-Zamora is an Assistant Professor at the University of New Mexico School of Law.


August 10, 2020 | Permalink | Comments (0)

Wednesday, August 5, 2020

"The Pieces of Housing Integration" - new article by Professor Kristen Barnes

Professor Kristen Barnes of Syracuse University College of Law and University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, has published "The Pieces of Housing Integration" - 70 Case W. Res. L. Rev. 717, Issue 3.  Here is the abstract:


Notwithstanding the enactment of the Fair Housing Act in 1968, accomplishing racially- integrated housing across the United States remains an unattained goal. The costs associated with this failure are innumerable. Black Americans have endured harms in many areas, including health, education, wealth, and employment. More broadly, the nation has incurred considerable socio-economic and political costs. In the interdisciplinary book, Moving Toward Integration, authors Richard Sander, Yana Kucheva, and Jonathan Zasloff analyze why the promise of racially-integrated housing remains unfulfilled and identify noteworthy strategies for changing course. Engaging with their arguments, this article highlights several structural impediments to altering racial housing patterns. Banks, cities, government agencies, and courts have been major contributors to the problem. Nonetheless, they have the power to ameliorate some of the lingering damage and to prevent future harms. Referencing several examples involving the Fair Housing Act, disparate impact theory, and the Low Income Housing Tax Credit, this work elucidates how lending and government entities have sometimes operated to compromise desegregation and integration efforts rather than to facilitate them. Understanding the counterproductive moves of these influential actors is essential to assessing proposals for change.

August 5, 2020 | Permalink | Comments (0)

Monday, August 3, 2020

BLM, Blacks & the Elephant in the Room


The Black Lives Matter (BLM) campaign, while seemingly targeting a white audience, is a message that needs to be internalized by all races, including black people. In the last decade, BLM has gained political traction by focusing on the mistreatment of Blacks by police. The campaign has enjoyed steady momentum due to the ongoing police killing of Blacks and the steady stream of videos attesting to the brutality.

But then came the killing of George Floyd.

The killing of Floyd was a watershed moment in the annals of police brutality and the BLM movement. It was a primetime killing of an unarmed, compliant, black man, whose life was extinguished over the alleged passing of a counterfeit $20 bill. Videos of the killing went viral in a world stuck in quarantine. Hence, there was literally a captive audience that was forced to sit and witness the plight of black America. That same audience would further witness assault after assault on protestors and the media by police, which laid bare the purpose of the protests.

The ensuing protests and news coverage skyrocketed BLM into a global phenomenon and household phrase. After George Floyd, regardless of what one thought of BLM, the organization, BLM as an idea expanded far beyond. The global resonance and response suggest that Blacks worldwide experience undervaluation. Floyd gave the world a stunning visual that proclaimed black life was not even worth twenty bucks.

The notion “black lives matter” is a sorely needed pathos in American culture, particularly since the country’s legal history is tied to the mistreatment of Blacks. This is especially true when considering that since the time of slavery, Blacks have had to transition from holding the legal status of property to becoming free civilians. From then on, the criminal justice system became the greatest menace to black America.

For example, when it comes to the death penalty, studies have shown that one’s likelihood of being sentenced to death varies according to the race of the murder victim. Statistics confirm that killing a white person is usually a ticket to a death sentence, whereas the killing of a black person is usually met with a prison sentence. Such racial injustice is just the tip of the proverbial iceberg.

Consider that of all homicides in the country, Blacks suffer the greatest number of victimizations. According to the FBI, in 2018, of the total 14,123 killings, 7,407 were black victims, meaning that more Blacks were killed than all other racial groups combined. Hence, while Blacks make up roughly 13% of the total American population, they are victims in over one half of all homicides.

At a bare minimum, the figures suggest that black life is the least valued in America. But the story is more complex because a vast majority of those killings are carried out by Blacks. Of the total homicides described above, nearly forty percent of the perpetrators were black, and when it comes to black victims specifically, the numbers are more startling. According to the same report, of the 2,925 killings that involved a single killer and single black victim, 2600 involved a single black perpetrator.

These figures suggest a simple point: BLM must hone efforts to infuse its message in the psyche of Black America. Even though it is true that racial groups experience intra-racial crime predominantly, these numbers are extreme. Consider that Whites, who make up more than 70% of the American population, had only 77 more homicides in the same category, with Whites experiencing 3,315 single victim killings, 2,677 of which were by a single white perpetrator. Thus, even in the world of race on race crime, Blacks are killed by other Blacks in stunning disproportion to other racial groups.

This is not to say that the killings were because of race, but simply, that black life appears to be devalued even by Blacks. It may be no wonder given the long history of Blacks having to be brutal to survive, from vicious house slaves to the black slave drivers who cracked the whip in the fields, Blacks have been forced to hate their own to advance themselves. After centuries of holding the status of an object that could be beaten, raped, and killed without interference of law, the climb to obtain the status of human has been steep.

From this view, the elephant in the room are those Blacks who need to embrace this message. While Blacks are the overwhelming victims of racism, it hardly means that BLM is a message for whites only. Understanding trends in homicide victimization points to the notion that BLM is a message that we all need to embrace. More critically, it points to the need to promote self-love and other life-affirming practices in black communities. Failure to spot this elephant will doom any movement seeking to promote black lives.

August 3, 2020 | Permalink | Comments (0)

Friday, July 31, 2020

ARTICLE: "American Muslim Woman: Who We Are and What We Demand From Feminist Jurisprudence" by Mehwish Shaukat


Attorney Mehwish Shaukat of O'Melveny & Myers LLP authored American Muslim Women: Who We Are and What We Demand From Feminist Jurisprudence, 31 Hastings Women's L.J. 155 (2020). She writes in this piece on the need for a shift in the way feminist jurisprudence views American Muslim women.

It is time for feminist jurisprudence to recognize American Muslim women (AMW) as a distinct and agentic group. For too long, feminist discourse has victimized and objectified Muslim women. Our identities are constructed, deconstructed, and weaponized to suit third party needs; yet, our voices are rarely heard. When feminist legal theories singularly refer to Muslim women in relation to oppression, it harms Muslim women as a group and it attacks the very ethos of the discipline itself. Legal academia trains students to actively interrogate assumptions, but, it curiously treats the oppressed Muslim woman as an irrefutable reality. There is a dearth of first-person legal scholarship on AMW, and this article takes one step towards filling this precarious void. I invite the leading scholars of feminist jurisprudence to closely examine their own scholarship, and to discard orientalist constructions of AMW in exchange for first-person narratives.

As a visibly Muslim woman, like Ms. Shaukat, I have also been struck by what feels like the hidden arrows in feminist jurisprudence. This article is the first law review article I encountered that speaks to me versus about me. I often feel like I'm in a petri dish as a law professor in the majority white legal academy. In the midst the pandemic and the BLM protests, the academy appears to me to be the petri dish/bubble - completely out of touch with realities of larger subset of the global population of Muslim woman. As an American Muslim woman I can look at this petri dish of the legal academy and not wonder why racist laws and systems are in place, ranging from the over-criminalization of black and brown people to massive corporate bailouts that benefit white elites. The system works exactly as it has been designed to work.

2020 became the year of the niqabi. As Muslim women's facial and head coverings were the subject of the policing of women's bodies and appearance, the irony of how everyone is covering their faces now is not lost. Feminist jurisprudence has serious blind spots in its understanding and regard for Muslim women.    

Ms. Shaukat adds:

Feminist jurisprudence speaks about American Muslim women (“AMW”), but it does not speak to AMW. Sidelined since slavery, AMW are paradoxically visible and invisible. In 2020, we expect to be recognized as a distinct and agentic group with an equal stake in American liberties. There is a gaping hole in feminist jurisprudence—AMW’s inclusion. And this article takes one step toward filling this void with a first-person account. This article will define AMW’s group identity, analyze AMW’s intersectional marginalization, and highlight AMW’s exclusion from feminist jurisprudence and the resulting harms.


When feminist jurisprudence excludes AMW, it inflicts harm on two parties: AMW and feminist jurisprudence itself. These harms should be of special concern to legal academia at large, scholars of feminist jurisprudence, and those committed to ending the subordination of all women. The harm that feminist jurisprudence inflicts upon AMW is further discussed in Part Three, but, it is critical to understand how the discipline engages in self-harm at the outset.


This self-harm is best understood through a study of feminist jurisprudence’s own founding principles. If one purpose of feminist jurisprudence as a field of scholarship is “to map the contours of the ongoing legal supports in an era characterized by a liberal consensus on very basic norms of nondiscrimination and formal equality,” then, leaving AMW off the map violates this foundational principle. If a second equally important aim of feminist legal theory is to give women the sort of agency “according to which all of us are defined primarily by our individual attributes and ambitions rather than by any socially mandated role or set of presumed characteristics, and the value of autonomy, by which is meant the irreducible importance of self-determination and the pursuit of one’s own understanding of the good life without societal or state based censorial control,” then it follows that denying AMW this sacred right to self-determination attacks the very ethos of feminist legal theory and threatens the integrity of the discipline as a whole.


Today AMW are primarily defined by the socially mandated roles and characteristics foisted upon us by western culture and feminist legal theories, and we are excluded from critical conversations that shape feminist jurisprudence. This exclusion is an egregious harm, but, the remedy is within reach. Small changes can begin to realign both parties into a powerful coalition. In fact, some feminist legal theories are natural allies for AMW’s integration into feminist jurisprudence—but, this coalition has yet to be widely discussed in legal academia.


Our complex intersectional marginalization is invisible to feminist legal theories. This invisibility compounded with the failure of feminist legal theories to affirmatively challenge AMW’s subordination renders feminist jurisprudence complicit in assaults on AMW’s bodies and liberties in a post-9/11 Trumpian world. As it stands, third party accounts dominate the scholarship and public discourse on AMW. We are written about—our identities are constructed, reconstructed, and perverted to suit the writers’ needs; but, we are not spoken to much less listened to. AMW exist in extremes because dramatic characterizations supply the best ammunition for third party agendas.


Today, feminist discourse marginalizes AMW by singularly referring to us in relation to oppression. Intersectional feminism is a force of change, and our inclusion is long overdue. This article seeks to combat essentializing by adding much needed nuance to narratives on AMW. Instead of replacing one stereotypical image with another, my objective is to create a rich intersectional portrayal of AMW that is currently wholly lacking in legal academia and popular culture. Every section of this article could be an entire book, and I introduce these topics to spark pressing discussions where the academy is silent. (internal citations omitted)

July 31, 2020 | Permalink | Comments (0)

Wednesday, July 29, 2020

"Faith in Whiteness: Free Exercise of Religion as Racial Expression" - new article by Professor Khaled Beydoun

Professor Khaled Beydoun of the University of Arkansas-Fayetteville School of Law recently published "Faith in Whiteness: Free Exercise of Religion as Racial Expression" in the Iowa Law Review.  Here is the abstract:


Faith in whiteness is the affirmation that religion remains forceful in shaping race and racial division. It is also the observation, born from formative contestations of racial exclusion and today’s rising white populism, that central to the American experience is the conditioned belief that whiteness stands at the pinnacle of social citizenship. Whereby adhering to its
tenets and conforming one’s identity to it, maximizes enjoyment of rights and protection from private animus. Most saliently, and per the focus of this Article, faith in whiteness is a form of strategic identity performance. It is a daily ritual whereby adherents of stigmatized religions outwardly perform their religious identities against negative racial meanings ascribed to their faiths and re-perform it in the image of whiteness.  Rising white populism, anti-Semitism and xenophobia have made this phenomenon particularly pervasive today, and raised its stakes for adherents of stigmatized religions. As illustrated by the murders of the three Muslim students in Chapel Hill, North Carolina, in February of 2015, and more
recently, the horrific shooting at the Tree of Life Synagogue on October 27, 2018, Free Exercise of Muslim and Jewish identity clashes with populist conceptions of whiteness, and in an increasingly polarized nation, expose those who outwardly express their religious identity to suspicion, animus and violence. In turn, incentivizing adherents of stigmatized religions to outwardly underperform their faith in order to stave off stigma, and enhance perceptions that they are white—or proximate to white—in order to attain the
presumptions and privileges ascribed to whiteness.  This Article examines the intimate interplay between race and religion during a moment of emergent white populism and religious intolerance. By building off foundational social psychology and legal literatures examining identity performance, this Article also contributes a new framework theorizing how religious identity is negotiated and performed against racism, religious animus, and threats that blur them together. It then applies this framework to six contemporary case studies, illustrating the Free Exercise tradeoffs and racial stakes of faith in whiteness in action.

July 29, 2020 | Permalink | Comments (0)

Monday, July 27, 2020

"Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities" - new article by Professor Shirley Lin

Professor Shirley Lin of NYU School of Law has just published "Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities," 24 Lewis & Clark L. Rev. 731 (2020).  Applying several critical legal lenses, Professor Lin examines the tensions between the of Supreme Court's causation doctrine and courts' increasingly multidimensional social-construction approaches leading up to Bostock v. Clayton County.  The full abstract is below, and the article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3510332.


Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton County, one that combined the sex-trait analysis with causation analysis in determining that Title VII protects “traits or actions” related to sexual orientation or gender identity.

Because Bostock did not foreclose the use of social evidence or intersectional approaches in additional subordination contexts in which sex is a factor, this Article builds on this important development by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination has the potential to give fuller effect to Title VII’s provisions and purposes as compared to sex-stereotyping theory or the Court’s reformulated “but-for causation.” Uncoupling causation from the sex trait analysis realizes the statute’s civil rights protections within relational, structural, and institutional dynamics as the law increasingly recognizes that the scope of sex extends beyond a fixed binary.


July 27, 2020 | Permalink | Comments (0)