Monday, April 12, 2021

Call for Proposals for the Third Annual Equality Law Scholars’ Forum

Below is a message from Professor Tristin Green about submitting proposals for the Third Annual Equality Law Scholars' Forum.  I participated in this event back in 2017, and I would strongly encourage any young scholars working in the relevant areas to submit a proposal.  It is a great opportunity on many levels.

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Last year, we had to cancel our two-day, in-person Spring 2020 Equality Law Scholars’ Forum scheduled at the University of San Francisco Law School (we held a small feedback session virtually for several junior scholars in Fall 2020), but we’re back in full for Fall 2021!   Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Fall 2021.  We are planning for the even to be held in person at the Boston University School of Law. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 12-13, 2021 at the Boston University School of Law

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 1, 2021.

 

Full drafts of papers must be available for circulation to participants by October 29, 2021.

Proposals should be submitted to:

Tristin Green, University of San Francisco Law School, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

April 12, 2021 | Permalink | Comments (0)

Wednesday, April 7, 2021

RELIGION, RACE AND IMMIGRATION. WHAT ABOUT THE IMMIGRATION AND NATIONALITY ACT? By Christopher Ogolla

The recent surge of migrants in the southern border has thrust the issue of immigration to the forefront of public discourse. It is so much so that House Republican leader Kevin McCarthy and Republican members of Congress visited the border in March 2021 to highlight the crisis.[1] During the Trump Administration, it used to be the Democrats who visited the border to highlight the migrant crisis. To quote Yogi Berra, “its déjà vu all over again.” But I digress.

On February 18, 2016, Pope Francis, while on a trip from Mexico to Rome, was asked by reporters about the then-presidential candidate Donald Trump’s plan to build a wall along the U.S. Mexican border, if elected. The Pope responded, “A person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not the gospel."[2]

On January 27, 2017, President Trump signed an Executive Order[3] banning foreign nationals from seven predominantly Muslim countries from visiting the U.S. for 90 days. Additionally, the Order suspended entry to all Syrian refugees indefinitely and prohibited any other refugees from coming into the country for 120 days.[4] This Order became popularly known as the Muslim ban.[5] In an amicus brief supporting a lawsuit filed by Washington State Attorney General Bob Ferguson seeking to have key provisions of the Executive Order declared unconstitutional, the American Civil Liberties Union (W.A.) argued that the Order gave preference to the processing of Christian refugees over Muslim refugees.[6] The Supreme Court later upheld the Order in Trump v. Hawaii.[7]

In April 2018, the then-Attorney General Jefferson Sessions announced a zero-tolerance policy “for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.”[8] This policy was in response to an increase in the number of immigrants crossing the southwest border. The hallmark of this policy was the family separation practice that caused public outrage and opposition from some members of Congress.[9] On June 14, 2018, in a speech to law enforcement officers in Fort Wayne, Indiana, Sessions defended the zero-tolerance policy by citing the Bible to justify immigrant family separations. He said, "I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order".[10] In a nutshell, Sessions was saying that “the practice of separating families is consistent with the teachings of the Bible because persons who violate the law of our nation are subject to prosecution.”[11]

Responding to Sessions’ use of the Bible to justify family separation, New York Cardinal Timothy Dolan said, “I appreciate the fact that Attorney General Sessions refers to the Bible. The quote that he used from St. Paul might not be the best. For one, St. Paul always says that we should obey the law of the government if that law is in conformity with the Lord's law. No pun intended, but God's law trumps man's law. I don't think we should obey a law that goes against what God intends that you would take a baby, a child, from his or her mom. I mean, that's just unjust. That's un-biblical. That’s un-American. There could be no biblical passage that would justify that."[12]

These examples show that religion and immigration are inextricably intertwined. But that is of little novelty. What is more telling is that the Immigration and Nationality Act (“The Act”) does not speak much on religion. Religion only appears in three sections of the Act, one as a ground for asylum, second as preferential treatment for special religious workers, and a third on naturalization requirements. Regarding asylum, the Act defines a refugee as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[13] The Act also allows an alien, who- has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States to enter the country and work as a minister for a religious denomination, in a religious vocation in a professional or nonprofessional capacity, or a religious occupation either in a professional or nonprofessional capacity.[14] Finally, to complete the naturalization process, a non-citizen is required to swear an oath of allegiance to the United States.[15] The oath ends with the words, “so help me God.”[16] A non-citizen is allowed to waive this part of the oath. Part of the rule provides that when a petitioner or applicant for naturalization, by reason of religious training and belief or for other reasons of good conscience, cannot take the oath with the words “on oath” and “so help me God” included, the words “and solemnly affirm” shall be substituted for the words “on oath,” the words “so help me God” shall be deleted, and the oath shall be taken in such modified form.[17]

So, despite the paucity of religious edicts in the statute, why resort to religion to explain the zero-tolerance policy? This could be partially explained by the fact that race, religion, and nationality matter in immigrant selection. They are still used in the contexts of admission and enforcement to serve different purposes, such as border security.[18] Even though the Establishment clause prohibits the government from favoring one religion over the other, immigration presents an area where the government can favor or disfavor a religious group. For example, in Trump v. Hawaii, even though the proclamation said nothing about religion, it overwhelmingly targeted Muslim nations.[19] The Majority found that even though five of the seven nations in the proclamation had Muslim-majority populations, that alone did not support an inference of religious hostility. Naturally, this leads to the question, does the Act allow for discrimination based on religion? Sadly, the answer is yes, if nationality is equated with religion.

[1]Mariam Khan & Ben Gitlleson, GOP Lawmakers Slam Biden After Visit to Migrant Detention Center at Border, ABC News (Mar. 15, 2021), https://abcnews.go.com/Politics/gop-lawmakers-slam-biden-visit-migrant-detention-center/story?id=76476391.

[2] Daniel Burke, Pope Suggests Trump ‘is Not a Christian’, CNN (Feb 18, 2016), https://www.cnn.com/2016/02/18/politics/pope-francis-trump-christian-wall/index.html.

[3] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

[4] Timeline of the Muslim Ban, ACLU, https://www.aclu-wa.org/pages/timeline-muslim-ban (last visited Apr. 3, 2021).

[5] Id.

[6] Brief for the ACLU-WA as Amicus Curiae, Washington v. Trump, 858 F.3d 1168 (2017) (No. 2:17-cv-00141), file:///C:/Users/cpogolla1130/Downloads/026-1._aclu_amicus_brief%20(1).pdf.

[7] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[8] See Press Release, Jeff Sessions, Attorney General, DOJ, Announces Zero Tolerance Policy for Criminal Illegal Aliens (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.

[9] See, e.g., The Trump Administration’s Zero Tolerance Immigration Enforcement Policy, Cong. Res. Serv. 1, 2 (Feb. 26, 2019) (noting that “The family separations have garnered extensive public attention.”).

[10] Richard Gonzalez, Sessions Cites the Bible to Justify Immigrant Family Separations, NPR (June 14, 2018), https://www.npr.org/2018/06/14/620181177/sessions-cites-the-bible-to-justify-immigrant-family-separations.

[11] Diocese of Savannah, Bishops Across U.S. Condemn Separation, Detention of Migrant Children, Southern Cross, June 21, 2018.

[12] Jennifer Hansler, Cardinal Dolan: There is No Bible Passage to Justify Family Separation, CNN (June 16, 2018), https://www.cnn.com/2018/06/16/politics/cardinal-dolan-family-separation-cnntv/index.html.

[13] INA § 101(a)(42).

[14] INA § 101(a)(27)(C).

[15] INA § 337.

[16] 8 CFR§ 337(a)(1).

[17] 8 CFR§ 337(b).

[18] Liav Orgad & Theodore Ruthizer, Race, Religion and Nationality in Immigration Selection: 120 Years After the Chinese Exclusion Case, 26 Const. Comment. 237, 261 (2010).

[19] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

*Christopher Ogolla is an assistant professor of law, Barry University School of Law. 

April 7, 2021 | Permalink | Comments (0)

Monday, April 5, 2021

Am I Angry? You Bet I Am! Watching the George Floyd Murder Trial (by Prof. Shelly Taylor Page)

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We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek Chauvin, to see that the answer is an unequivocal and resounding, no.

This past week we witnessed a cadre of State’s witnesses, many of whom are Black, who were being portrayed by the defense as “angry” and as a violent, threatening mob who posed a clear and present danger to the arresting officers. One witness, Donald Williams, was repeatedly questioned by the defense attorney about being “angry.” Mr. Williams steadily and continually replied that he showed “controlled professionalism” and that he was not an angry Black man. As if being an angry Black man was an abomination.

As the world had the unfortunate opportunity to witness the murder of George Floyd by a law enforcement officer, we saw what a prolonged, deliberate, methodical and calculating homicide looks like. As a crowd began to almost immediately form around the scene of the crime, it soon was evident that these officers had no intent on ensuring that Mr. Floyd’s rights were recognized, honored and adhered to. Within seconds of approaching George Floyd’s vehicle to inquire about an alleged counterfeit $20, the first officer on the scene demanded that Mr. Floyd place his hands on the steering wheel. Officer Thomas Lane, on his fourth day on the job, almost immediately upon approaching Mr. Floyd’s vehicle drew his service weapon and yelled at Mr. Floyd, “Put your f-cking hands up now!” This expletive laden exchange continued as Mr. Floyd called the officer “Sir” and begged repeatedly and urgently for his life and not be shot by the officer. Mr. Floyd was clearly in distress and afraid for his life as he was accosted by the police officers.

As Mr. Floyd was handcuffed and the officers were attempting to arrest him, a small crowd formed. Many in the crowd became increasingly concerned for how Mr. Floyd was being treated by the arresting officers. He was handcuffed with his hands behind his back and was lying face down, on the ground. Almost immediately after being placed on the ground, Officer Derek Chauvin put his knee onto the neck of George Floyd. Members in the crowd could easily see that Mr. Floyd was having difficulty breathing. If it was not obvious to anyone looking, you could hear Mr. Floyd saying he could not breathe.  He said he could not breathe more than twenty times. He begged for water, said that he needed to sit up and that his stomach and “everything” was hurting. Despite the pleas for his life and the crowd begging for help for Mr. Floyd, Derek Chauvin continued to dig his knee deeper into the neck of George Floyd.

Watching this crime on social media and on television is gut wrenching and heart breaking. Imagine watching it live and in person. That is what the witnesses saw: a man murdered by those sworn to serve and protect. But the strangest part? These witnesses are being villainized and vilified for expressing anger after what they saw.

As Black and Brown lives have been scrutinized, monitored, experimented upon, dissected, mistreated, objectified and maligned for centuries, we are now at a point in our nation’s history where we are even denied from expressing the full spectrum of human emotions. We are being told we cannot and should not express anger after watching a helpless, handcuffed man being killed by three police officers bearing their entire body weight upon the length of the victim’s body.

But is this really a change from the past? NO. It is not. As we reflect back on the 1857 Dred Scott case which formally ruled that Blacks were not American citizens, we see how Black bodies have been controlled and manipulated for the sanctity and solemnity of white supremacy. Black people were not allowed to be considered humans and as such were not allowed to be viewed from the lens of a full, rich, human being. One with emotions, and ideas, and thought processes and lives worthy of living. By dictating when a person is allowed to express an emotion, and when an individual can show feelings and exhibit what is happening inside of them internally, we then have the ability to dehumanize that person. By shaming Donald Williams for perhaps feeling anger, we have effectively taken away his full humanity. When a Black person is discouraged or dissuaded from being angry, we have taken away from that person’s ability and right to fully and freely express who they are in that given moment.

We all have a right to be angry at times. That anger can be expressed in constructive and destructive ways but it should be left up to that person to decide how that anger will manifest itself. Expressing anger should be available to anyone regardless of their race or ethnicity.

Minneapolis firefighter, Genevieve Hansen, was asked if while standing at the scene if she was angry. She responded by saying, “I don’t know if you’ve seen anybody killed, but it’s upsetting.” This statement goes to the crux and heart of the matter. If witnessing a handcuffed Black man, begging for his life, in clear pain as his face is pressed to the ground with a cop’s knee on his neck be murdered cannot engender anger in Black people, then what can? If Black people cannot be angry after watching the life snuffed out of a man not posing a threat to law enforcement officers who eventually kill him, then what does it take to be righteously angry?

Black people have every right to be angry. After all of the atrocious, horrific abuses and travesties we have witnessed as a people, we should be angry. And no one has the moral authority to dictate what our emotions are or should be, especially the people that have caused and instigated that anger in the first place. White people push Black people into corners, harass, malign, belittle, demean, disenfranchise, abuse, mistreat, exploit, maim and murder us and then have the unmitigated gall to attempt to tell us we cannot and should not be angry? Even the Bible says to “be angry and sin not.” Anger is a completely appropriate response along with action to effectuate genuine, systematic and universal change. Perhaps that is why the attempts at making us feel shamed for feeling the emotion of anger is so persistent and concerted: they know when we get angry we will be motivated to action. Action that will be the beginning of the end of their reign of white terror.

Prof. Shelly Taylor Page is a Visiting Professor at Florida A&M University College of Law.

April 5, 2021 | Permalink | Comments (0)

Wednesday, March 31, 2021

New Article: "I'll See You at Work: Spatial Features and Discrimination" -- by Prof. Tristin Green

Professor Tristin Green of the University of San Francisco School School of Law has posted I'll See You at Work: Spatial Features and Discrimination, which will be published in the UC Davis Law Review in Fall 2021.  Below is the abstract, and the full article is available right here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3811011

Abstract
We increasingly talk about HR practices and work cultures as mechanisms for discrimination in work with nary a thought given to one of the most obvious influences on our daily work lives: where we work. This article seeks to change that. In it, I delineate spatial features as a condition of discrimination in workplaces and develop an understanding of what spatial features might matter and why. Drawing together some seemingly disparate lines of research and literature—from social psychology and sociology to geographies and urban planning—I theorize three specific spatial feature categories: insularity, precarity, and permeability. Each of these categories is about place as it affects our interactions and our expectations around interactions in our work.

The Article also examines the law’s current stance toward spatial features, segregation, and discrimination. It turns out that we are at an important crossroad: Where once spatial segregation was an obvious form of discrimination, today courts are backpedaling. Segregation is downplayed as evidence of discrimination, and spatial features are often either ignored entirely or siphoned off into individualized allegations, where they are treated as passing, innocuous moments of subjective experience rather than as organization-driven causal contributors to systemic discrimination. I urge us to put work “place” on our research and advocacy agendas and to consider spatial features and segregation as casual mechanisms for discrimination in legal cases as well. I make several specific recommendations to this end.

 

March 31, 2021 | Permalink | Comments (0)

Monday, March 29, 2021

New Article: Remaking Environmental Justice -- by Prof. Cliff Villa

Professor Cliff Villa of the University of New Mexico School of Law has just published Remaking Environmental Justice in the Loyola Law Review.  Below is the abstract, and the full article is available here: https://digitalrepository.unm.edu/law_facultyscholarship/846/ 

Abstract

From movements for civil rights in the 1960s and environmental protection in the 1970s, the environmental justice movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of environmental justice expanded to address concerns for other dimensions of diversity, including gender, culture, and age. Some of this expansion reflected early principles of environmental justice for equity and inclusion in all aspects of environmental protection. However, the expanded scope of environmental justice also reflected deliberate efforts by the U.S. Environmental Protection Agency to move away from what might be seen as programs for affirmative action. A resulting concern for “all people” raises the question of whether “environmental justice” retains any unique meaning today.

In 2020, we saw that “all people” were not affected equally by COVID-19, with disproportionate impacts on blacks, Latinos, and indigenous communities. In 2020, we also saw unabated racism and racial violence, such as the police killings of George Floyd and Breonna Taylor. In 2020, we saw diverse communities, such as Flint, Michigan, continuing to lack necessities such as safe drinking water. And with every next catastrophic fire, flood, hurricane, or drought, we see further evidence of the uneven impacts of climate change. Together, these new and continuing challenges tell us that we still need an “environmental justice” to help focus our attention and resources on the disparate impacts of environmental harm. However, these new and continuing challenges may also tell us that we need to reframe our understanding of environmental justice to ensure better protection for people going forward.

One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha Fineman and subsequent scholars. Starting from recognition that vulnerability is inherent in the human condition, vulnerability theory has already been explored in a variety of contexts, but has yet to be fully investigated as a means for reframing environmental justice for future application. This article urges further consideration of vulnerability theory in the environmental justice context. It specifically proposes a new definition of “environmental justice” to incorporate vulnerability theory in order to assist policymakers and community advocates with identifying the people most at risk from environmental hazards and most in need of attention to protect their health and safety.

March 29, 2021 | Permalink | Comments (0)

Friday, March 26, 2021

A Reminder: Stopping Hate Won't Stop Racism

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Today marks the #StopAsianHate Virtual Day of Action and Healing.  The mayor of Dallas, Eric Johnson, proclaimed March 26, 2021 as Stop Asian Hate Day.  In the past couple of weeks, everyday people, activists, scholars, celebrities, and companies have filled social media feeds with messages of support for the Asian-American community using the hashtag #StopAsianHate.  These posts respond to the horrible March 16th Atlanta shootings where Robert Aaron Long murdered eight people—six of whom were women of Asian descent.  The #StopAsianHate hashtag reveals the widespread belief that hate is the cause of racial violence against the Asian-American community.  Unfortunately, our collective focus on hate is a severe misunderstanding of the problem of racism in America.

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March 26, 2021 | Permalink | Comments (0)

Tuesday, March 23, 2021

Call for Submissions: Special Issue on the Law of the Territories

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to: 

  • the relationship between federalism and empire; 
  • the challenge of cultural accommodation within the United States’s constitutional framework; 
  • the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination; 
  • the intersection of race, gender, and class inequality in the context of U.S. colonial governance; 
  • and the promises and pitfalls of territorial autonomy.

The deadline for submissions is July 15, 2021. For more information, please see our announcement.

March 23, 2021 | Permalink | Comments (0)

Wednesday, March 17, 2021

The Double-Consciousness of Asian Americans

Earlier this week, I submitted my Essay for Georgia State University Law Review's upcoming symposium, "Social Justice and Racial Equality: What's Next?"  My Essay is entitled Racial Triangulation, Interest-Convergence, and the Double-Consciousness of Asian Americans.  Sadly, it now coincides with the tragic shootings in Atlanta yesterday, where a gunman killed several Asian Americans. I am working on another piece that is specifically about hate crimes against Asian Americans, but sadly again, that one needs to be updated frequently, including after yesterday.

Racial Triangulation, Interest-Convergence, and the Double-Consciousness of Asian Americans

Abstract

This Essay integrates Professor Claire Jean Kim’s racial triangulation framework, Professor Derrick Bell’s interest-convergence theory, and W.E.B. Du Bois’s notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, it considers the history of Asian immigration to the U.S., the model minority and perpetual foreigner stereotypes, Asian Americans’ positioning in the affirmative action debate, COVID-19 related hate and bias incidents, and Andrew Yang’s 2020 Democratic presidential candidacy. The Essay examines how racial stereotypes of Asian Americans have emerged through historical cycles of valorization and ostracism, as analyzed through the racial triangulation framework. It analyzes how the political interests of the U.S. government converged with those of educated professionals in Asian countries, leading to changes in immigration policy and the emergence of the model minority stereotype. The Essay considers various ways that Asian Americans have been simultaneously valorized as model minorities and ostracized as perpetual foreigners. It highlights the affirmative action debate, where Asian Americans have been cast as high-achieving victims of race-conscious university admissions policies and pitted against other groups of people of color, culminating with the current Students for Fair Admissions v. Harvard lawsuit. Finally, the Essay focuses on Andrew Yang’s presidential bid—particularly how his navigation of racial stereotypes reflected a double-consciousness that parallels the dilemmas faced by many Black Americans. The Essay concludes by arguing that to build coalitions and work towards racial justice, Asian Americans, Black Americans, and other people of color need to recognize their own double-consciousness and also see how it relates to the double-consciousness experienced by others.

March 17, 2021 | Permalink | Comments (0)

Wednesday, March 3, 2021

Challenging Systemic Racism with Human Connection (by Andi Mazingo, Esq.)

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As lawyers, we have a special obligation to mitigate inequities

You don’t need to be a lawyer steeped in the nuances of the Equal Protection Clause of the Fourteenth Amendment to understand that last summer’s Black Lives Matter protests highlighted the widespread view that our justice system is not treating people of color equitably. But, as lawyers, we have a special obligation to work to mitigate those inequities. One important method for mitigating the impact of systemic racism is recognizing and challenging implicit bias, a factor heavily contributing to the disproportionality of prosecution and punishment against certain groups.

Implicit Bias in the Criminal Justice System

Every human being has implicit biases. Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (1st ed. 2013). As a result, differences relating to race, culture, economic status, gender, physical appearance, religion, education, or other identifying characteristics affect individuals’ ability to immediately trust someone. This is an evolutionary adaptation of our cognitive functioning because humans once needed to make rapid assessments about whom to trust to ensure survival. Players in the criminal justice system are not immune from these implicit biases, including lawyers, police officers, and jurors. Even judges with a sworn duty of impartiality are affected by implicit bias. See, e.g., Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?,” 84 Notre Dame L. Rev. 1195 (2009).

In America, implicit biases against persons of color have a particularly profound effect on that group of people. Leland Ware, the Louis L. Redding Chair and professor at the University of Delaware’s Biden School of Public Policy and Administration, explained that “there is a centuries- old association of blackness with criminality and violence,” stating that “[d]ecisions about whom to arrest, how much force to use, what charges should be lodged and jury verdicts convicting minority defendants are adversely influenced by bias.” Beth Miller, “Biden Day One: Racial Equity,” UDel.edu (Jan. 20, 2021). Professor Ware added that “[t]his is an urgent matter that needs to be addressed.” Id.

Customs, practices, and norms that have the effect of treating white people and people of color differently are pervasive and often operate without scrutiny. According to Ware, “[m]anifestations of systemic discrimination are so common that they appear to be ‘normal’ and are unnoticed by those not adversely affected.” Id. However, failing to notice or denying our own implicit biases does not help defeat them. In fact, there is evidence that “believing ourselves to be objective puts us at particular risk for behaving in ways that belie our self-conception.” Jerry Kang et al., “Implicit Bias in the Courtroom,” 9 UCLA L. Rev. 1124, 117374 (2012)

Implicit bias training helps reduce bias to some degree. Even lawyers and judges, who are professionally trained to ask questions and second-guess assumptions, benefit from routine bias training. However, Ware cautioned that because stereotypes are “very deeply embedded in the criminal justice system, training can evaporate.” Telephone Interview with Leland Ware, Louis L. Redding Chair for the Study of Law and Public Policy, University of Delaware, Biden School of Public Policy and Administration, Newark, Del. (Jan. 28, 2021). For example, police officers must be retrained repeatedly to effectively reduce the disproportionality of prosecution and punishment in the criminal justice system.

Perhaps of equal importance is our individual motivation to address our own biases and engage in meaningful reflection. SpearIt, a law professor at the Thurgood Marshall School of Law at Texas Southern University, observed that judges and lawyers should consciously reflect on the range of biases that may affect outcomes in their cases. Seminars and workshops focused on implicit bias are just not enough. “For judges and lawyers, one of the keys to cracking implicit bias is to recognize that it happens intersectionally. While bias might be grounded in race, it might not, or it may run concurrent with others, such as indigency,” SpearIt explained. Email Interview with SpearIt, Professor of Law, Texas Southern University, Thurgood Marshall School of Law, Houston, Tex. (Feb. 2, 2021).

A Defense Lawyer’s Tactics for Changing Behavior

Defense lawyers can deploy a few key tactics to mitigate the impact of knee-jerk or biased reactions from a prosecutor during plea negotiations.

1.) Ask questions. People who are called upon to justify their position in response to appropriate and respectful questions are more likely to find themselves reflecting on potential biases. The questions must be nonaccusatory; putting a prosecutor on defense is likely to be counterproductive and harden biases. Helpful questions can include “Can you direct me to the discovery or facts about the case that you find most important in assessing the case?” or “Have you had enough time to consider the equities of the case, or is there more information you need from me to assist you with doing so?”

2.) Humanize your client with small talk. One may hope to immediately evoke empathy by informing the prosecutor about a client’s harrowing experiences. But for prosecutors who had a biased gut reaction, it is possible that hearing about an experience so different from their may increase an inability to relate. A better approach may be to first create deliberate moments for small talk to highlight shared human or American experiences, thus allowing the opportunity for connection.

3.) Evoke surprise or curiosity. When a prosecutor learns a surprising fact about your client or becomes curious about your client’s differing identity, culture, or experience, there is an opportunity for her to gain an empathetic connection with your client. One cannot be curious or surprised about something and at the same time adhere to a bias. Prepare your client to share a specific, personal piece of information that a prosecutor may not expect, or offer to provide further information in a format that the prosecutor would find useful, such as an equities letter or medical records illustrating important context.

Similar tactics may come in handy in criminal litigation filings and in the courtroom. In a conversation with Stephanie Lin, attorney at A New Way of Life Reentry Project (a nonprofit working to mitigate the effects of systemic racism by, among other things, assisting previously incarcerated individuals with expungement and family reunification), Lin explained that when she files expungement petitions, she mentions a client’s children or families in explaining why an expungement or sentence reduction would be in the interests of justice. Mentioning a client’s caretaking responsibilities and familial ties can have a humanizing impact. “Everyone can relate to wanting to be a good example for their children,” Lin said. Interview with Stephanie Lin, Att’y, A New Way of Life Reentry Project, in Los Angeles, Cal. (Jan. 29, 2021).

Lou Shapiro, a criminal defense attorney and former Los Angeles County public defender, also employs strategies for reducing the impact of implicit bias in juries. Shapiro observed that implicit bias can be a significant obstacle to juror impartiality. Shapiro recalled defending an individual with a Middle Eastern surname at two successive jury trials. The first trial resulted in a hung jury. For the second trial, Shapiro boldly decided to assess the presence of implicit bias during voir dire by asking questions about his client’s name, such as “When you hear his name, what do you feel like?” These questions, designed to reveal biased thinking, evoked conversation about potential unfair implicit bias, allowing Shapiro an opportunity to present real facts about his client’s identity. Shapiro believes that this tactic helped the jurors overcome any bias, enabled them to solely focus on the evidence, and contributed to a jury verdict in his client’s favor. “Getting over the implicit bias allowed the jurors to look at the case with an open mind” said Shapiro. “If you talk about it, you can get past it, just by recognizing it.” Telephone Interview with Lou Shapiro, Att’y, Los Angeles, Cal., & Former Pub. Defender, Los Angeles Cnty., Cal. (Jan. 26, 2021).

Systemic Reform in the Criminal Justice System

The herculean task of addressing implicit bias in criminal cases should not be relegated to individual trial lawyers. It is a heavy burden to expect lawyers to engage in the psychological fishing expedition of identifying potential juror biases—and even more onerous to expect them to dismantle these biases. Such tasks require extensive training as well as time for original and inventive thought for each case, time that many lawyers (especially prosecutors and public defenders) may not have.

A more realistic and long-term solution is broader systemic reform designed to address implicit bias in criminal cases. There is some consensus that jurors should have on-the-job implicit bias training prior to jury deliberations. Mark Bennett, recently retired judge of the U.S. District Court of the Northern District of Iowa, would discuss implicit bias extensively with jurors during jury selection, ask jurors to take a pledge against bias, and give specific implicit bias jury instructions before opening statements. These jury instructions defined implicit bias; explained that everyone, including the judge himself, holds implicit biases; and advised jurors to make their decision based upon evidence, reason, and common sense—not personal likes and dislikes. Kang, supra, at 1182– 83.

In addition, addressing bias that occurs at earlier inflection points in a criminal case could have an even more profound impact. When prosecutors conduct an initial review of a case, they typically have far-reaching discretion to determine a defendant’s charges and whether they are felony or misdemeanor charges. In a conversation with Dr. Arin Reeves, attorney and leading implicit bias researcher, Reeves explained that prosecutors consider, when selecting charges, what the likelihood is that they will succeed at trial on those charges, and that assessment could include consideration of whether the prosecution will benefit from judge or juror bias. “What they’re saying is, ‘We perceive you as not having a good chance in front of the judge or the jury.’ In that moment, they’re not questioning the bias, and the bias becomes [a defendant’s] reality.” Telephone Interview with Arin Reeves, President, Nextions LLC, Chicago, Ill. (Feb. 3, 2021). Thus, commented Reeves, “at the very introduction of the process, a lot of the rest of the path is determined.” Id.

Asking prosecutors to humanize defendants when confronted with an immense volume of cases may be unrealistic. Thus, instead of relying on individually motivated behavior to eliminate biased prosecutorial discretion, defense lawyers should provide prosecutors with tools for screening their decisions for bias. For example, “a uniform prosecutor decision checklist to guide key prosecutorial decisions . . . could potentially force line prosecutors to slow down, consider additional mitigating or exculpatory factors, and attempt to place each decision and case into a broader systemic context.” Lars Trautman, How a Checklist Could Improve Prosecution, (July 2020) (R Street Policy Study No. 199).

Moreover, prosecutorial discretion is molded by charging guidelines issued by lead prosecutors. For example, newly appointed U.S. Attorney General Merrick Garland is expected to instruct federal prosecutors to make charging decisions that do not trigger mandatory minimum sentences, a policy change expected to minimize racial disparities in sentencing. Jarrett Renshaw & Sarah N. Lynch, “Biden Selects Judge Merrick Garland for Attorney General,” Reuters (Jan. 6, 2021). Similarly helpful charging guidelines in various jurisdictions could be aimed at decreasing the use of disproportionately impactful drug sentencing laws and three‐strikes‐type repeat‐ offender laws.

Conclusion

Given our country’s reckoning over racial and social injustices, it is up to lawyers to attempt to dismantle implicit biases to honor their duty of zealous advocacy while waiting for broader systemic reform. As Reeves put it, “the ideal is systemic intervention, and until we get that in place, whatever individual humans can do, we should do.” Reeves, supra.

Andrea (Andi) Mazingo is a senior associate with Orrick Herrington & Sutcliffe LLP in Los Angeles, California, and is a pro bono family reunification attorney at A New Way of Life Reentry Project.

This was originally published by the American Bar Association on 2/26/21. Read it here.

March 3, 2021 | Permalink | Comments (0)

Tuesday, March 2, 2021

LSU Virtual Symposium: Fighting White Supremacy in the 21st Century

The LSU Law Journal for Social Justice & Policy is hosting its inaugural symposium, “Fighting White Supremacy in the 21st Century,” on Friday, March 19, 2021 (3-5 PM CST). The panel will consist of five distinguished legal scholars. 

The virtual symposium is free and open to the public. To register – and learn more about the event, the journal, and the panelists – please visit https://www.law.lsu.edu/ljsjpsymposium/.

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March 2, 2021 | Permalink | Comments (0)

Monday, March 1, 2021

Symposium on Policing in America

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On March 26, 2021, the Indiana Law Review virtual Symposium, No Justice, No Peace: Finding Justice in American Policing, will explore the ways in which the Black Lives Matter Movement has precipitated both discussions and direct action to make changes to policing in America. From Ferguson in 2014 to today, activists and advocates are making stronger and more direct calls for changes in the role police play in our communities, especially communities of color. The wake of Breonna Taylor’s and George Floyd’s deaths, communities all across the country are holding public discussions about power and policing. This symposium will explore the impacts of policing for minority groups, how policing has changed in the wake of the Black Lives Matter Movement, and whether the calls to defund the police should be realized.

The schedule is listed below and can be found at the symposium webpage here.

Symposium Schedule: 10:00 AM ET – 1:20PM ET (3 hours CLE available)

10:00 AM – 10:05, Welcome – Bre Robinson, Indiana Law Review Symposium Editor

10:05-10:10 AM, Opening Remarks – Dean Karen E. Bravo, IU McKinney School of Law

10:10 – 11:10 AM

War on Black Women: Challenging Criminalization, Creating Community Safety
Keynote Speaker, Andrea Ritchie, immigrant police misconduct attorney and organizer.

11:10 – 11:15 AM

BREAK

11:15 AM – 12:15 PM

Police Reform: From Prisons to the Streets, How Far We Have Come and How Far We Still Have to Go

  • Kami Chavis, Vice Provost/Professor for Academic Initiatives at Wake Forest Law. Former Assistant U.S. Attorney for the District of Columbia.
  • SpearIt, Professor at Thurgood Marshall School of Law.
  • Seth Stoughton, Associate Professor at South Carolina School of Law. Co-author of Evaluating Police Uses of Force. Former police officer with the Tallahassee Police Department.
  • Katie Tinto, Clinical Professor at University California Irvine School of Law. Former public defender in Los Angeles County.
  • Moderator: Lahny Silva, criminal law professor at IU McKinney School of Law.

12:15 – 12:20 PM

BREAK

12:20 – 1:20 PM

Defunding the Police: What it Means, What it Does, and Whether it Should be Realized

  • Alex Vitale, Professor of Sociology at Brooklyn College. Author of The End of Policing.
  • Paige Fernandez, Policing Policy Advisor for the ACLU National Political Advocacy Department.
  • James Gagliano, law enforcement analyst and policing methodology subject matter expert for CNN. Adjunct assistant professor and doctoral candidate at St. John’s University. Served with the FBI for 25 years.
  • Keith “Wildstyle” Paschall, Indianapolis historian and activist. Central Indiana Community Foundation (CICF) Ambassador.
  • Moderator: Ebony Chappel, award-winning multimedia journalist and community advocate.

END

March 1, 2021 | Permalink | Comments (0)

Thursday, February 18, 2021

“Preservative of All Other Rights”: Voting and Social Justice in the Post-Trump Era

As social justice advocates rejoice over Donald Trump’s defeat and look for paths forward, the biggest lesson comes from the 2020 presidential election itself.  The right to vote is “preservative of all other rights[,]” and this past year underscored its importance more than ever.  In the midst of the COVID-19 pandemic, high voter turnout—and especially high Black voter turnout—propelled Joe Biden to victory.  Even as the Electoral College and partisan gerrymandering continue to undermine the popular will, America’s changing demographics favor people of color and progressives.  Moreover, the elected branches of government have become more significant because Trump packed the federal judiciary with conservative judges.  Social justice advocates should not expect too many revolutionary legal rulings such as Brown v. Board of Education (1954).  Most progressive change for the next generation will begin at the ballot box rather than the courthouse.

There are many barriers to expanding the franchise.  With its ruling in in Shelby v. Holder (2013), the U.S. Supreme Court greatly compromised the Voting Rights Act of 1965 (VRA).  Section 5 of VRA requires the covered jurisdictions to gain preclearance: federal authorization before enacting any laws that affect voting qualifications or procedures.  The covered jurisdictions included states and localities with a particularly egregious history of discrimination in voting.  Section 4 of VRA contained the coverage formula for Section 5, setting the criteria for preclearance to be applicable.  The Court ruled that the coverage formula in Section 4 was unconstitutional because Congress had not updated it since 1975.  Although the Court did not rule on the constitutionality of Section 5, its holding eliminated preclearance, allowing previously covered jurisdictions to enact restrictive voting laws. [1]

States have passed restrictions on the franchise, especially through purging of voter rolls and requiring voter identification.  Through its ruling in Husted v. A. Phillip Randolph Institute (2018), the Supreme Court made it easier for localities to remove registered voters from their rolls.  And even before Shelby, the Supreme Court had upheld strict voter ID laws in Crawford v. Marion County Election Board (2008), citing the state’s interest in preventing voter fraud.  The Court made reference to voter ID provisions in the National Voter Registration Act of 1993 and the Help America Vote Act of 2002, although Congress intended these laws to make voting easier.  With Trump’s numerous, baseless accusations of voter fraud in the 2020 presidential election, the climate is set for conservative state legislatures to pass more restrictions on voting. 

Nevertheless, the state of Georgia provides hope and vision for social justice advocates.  Georgia’s voter registration law is the most stringent in the nation, mandating an exact match of all required documents.  Georgia also has a strict photo identification requirement at the polls.  An ACLU report from September 2020 found that Georgia had wrongfully removed 200,000 voters from its voting rolls.  But in spite of these restrictions, Georgia voters—especially Black voters—turned out in huge numbers, lifting Joe Biden to victory in the state.  Biden became the first Democratic presidential candidate to win Georgia since 1992, and only the third since 1960. Turnout for the Georgia Senate runoffs in January was also excellent, leading Democrats Raphael Warnock and John Ossoff to surprising victories.

Former Georgia House Minority Leader and 2018 gubernatorial candidate Stacey Abrams deserves the most credit here.  Abrams, who believed that voter suppression cost her the 2018 gubernatorial race, founded Fair Fight Action—an organization which fights voter suppression.  Abrams and Far Fight Action were extremely effective in registering and turning out Georgia voters.  They serve as a model for stopping voter suppression and increasing the franchise.  And this is particularly important in Georgia, as it becomes a swing state and eventually a Democratic-leaning state.  Similar political trends have begun in other Southern states, such as North Carolina and Texas.  Social justice advocates in these states should follow Stacey Abrams’ lead.

There have also been other positive developments for voting rights.  Although some states have made voting more difficult in particular ways, the polls have become more accessible in other ways.  An increasing number of states now have automatic voter registrationForty-two states allow some form of early voting, and 35 have either automatic or “no excuse” absentee voting.  States do vary in the level of authentication required for absentee and mail-in ballots, and progressives should work to ensure that voters are not disenfranchised for minor errors.  In the wake of Trump’s baseless claims, social justice advocates will also need to continue fighting for liberal registration and mail-in/absentee ballot laws. Additionally, advocates should ensure that there are a sufficient number of accessible polling places in all jurisdictions.

Advocates should also capitalize on growing support to end felon disenfranchisement.  Forty-one states allow all felons to have their voting rights restored, and 48 allow this for at least some felons.  In 2018, Florida voters approved, by a 2:1 margin, an amendment to the Florida Constitution that restored voting rights for most felons when they completed their sentences.  Soon thereafter, the Florida legislature made this standard more difficult to meet by including payment of fines and fees as part of a “sentence.”  Nevertheless, Florida does illustrate that even in states which have recently favored Republicans, restoration of felon voting rights can gain traction among the electorate.

Voting technology can also affect the franchise.  After the fiasco with Florida’s recounts in the 2000 presidential election [2], the Help America Vote Act of 2002 aimed to modernize voting machines across the nation.  But all of its goals have not been met, and many states still use old voting machines.  Modernization of voting technology across jurisdictions is another important undertaking to ensure that votes are properly cast and counted.

Finally, although conservative judges now dominate the federal courts, social justice advocates can still look to state courts.  Historically, state supreme courts, including some from traditionally conservative states, have rendered groundbreaking rulings on issues ranging from school desegregation to same-sex marriage to education funding.  Voting rights are no exception: even as the U.S. Supreme Court continues to rule that partisan gerrymandering is non-justiciable, state high courts in Pennsylvania and North Carolina struck down gerrymandered districts on state constitutional grounds.  With a conservative federal judiciary in place for many years, state courts provide an alternative judicial venue to increase the franchise.

Social justice advocates have always needed to be flexible in their approaches.  It will take a combination of political engagement, impact litigation, direct action, and voter education and enthusiasm to expand voting for marginalized groups in our society.  And while this will not be an easy undertaking, it is the first step in securing all other basic rights.

Notes

[1] Although Congress could still make new findings and use that evidence to create a new coverage formula, this would be difficult to accomplish in the current political climate.  Moreover, the Supreme Court also noted in Shelby that Section 5 raises federalism issues.  With its new conservative appointees, the Court could rule that Section 5 itself is unconstitutional.

[2] In Bush v. Gore (2000), the U.S. Supreme Court halted the Florida recounts on equal protection grounds, due to the variation in recounting standards used by different localities.  Although the Supreme Court’s ruling was widely critiqued on federalism grounds, seven Justices and many commentators agreed that there were equal protection problems with the recounts.

This essay was originally published in Civil Rights Insider 5 (Winter 2021).

February 18, 2021 | Permalink | Comments (0)

Saturday, February 6, 2021

Colloquium: Defund to Abolish

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While the killing of George Floyd inspired worldwide protests against police brutality, it has also inspired discussions about how best to seize the opportunity to reform the police. The New York University Review of Law and Social Change will be hosting a gathering to continue these discussions. You are invited to join this two day gathering, which features a stellar lineup of scholars, advocates, and activists. The panels will take place in the early evening and include:

Day 1

Defund Means Defund:Panelists will contextualize the current moment, discuss the divide between reformist and abolitionist strategies, and lay out a vision for the future of the movements to defund and abolish the police.

Abolishing Police Across Intersecting Systems: This panel will highlight examples of how policing and criminalization show up in major institutions and industries as varied as technology, education, immigration enforcement, and sex work, and strategies organizers are using to remove police from these systems and spaces.

Day 2

Communities Without Police--We Keep Our Communities Safe:Panelists will share concrete examples of abolitionist strategies for community safety and discuss their vision for community safety systems that do not rely on policing. 

Defunding the Police in Practice:Organizers waging campaigns to defund the police in cities across the U.S. will reflect on different strategies and tactics to defund the police, what barriers they have faced, and what strategies have proved most effective.

You can RSVP at the colloquium's webpage here.

February 6, 2021 | Permalink | Comments (0)

Friday, February 5, 2021

Why Trump Didn't Pardon Himself

 

Former US President Donald Trump never admits he makes mistakes. That theme is arguably the only consistent aspect of his turbulent four-year presidency. It is also the reason why a self-pardon is unlikely to emerge during his final days in office. A presidential pardon prior to conviction or indictment implies an admission of wrongdoing, which is anathema to Trump’s authoritarian nature and pathology of denialism.

 
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The president also knows that a self-pardon only grants him immunity from federal prosecution, not state prosecution. Thus, the Manhattan District Attorney’s ongoing investigation of Trump and his family for tax evasion, fraud and financial crimes could still lead to state indictments after the president returns to private life, even if he had pardoned himself.

Indeed, a self-pardon could increase Trump’s exposure in a state prosecution. Because a pardon shields the recipient from prosecution for a federal crime, he cannot invoke the Fifth Amendment right against self-incrimination to avoid being subpoenaed before Congress or a federal grand jury. And if Trump lies, which he has been prone to doing in the past, that would be a new crime which his self-pardon would not cover.

That said, the constitutionality of a president’s authority to self-pardon has never been tested before the courts.

Article II, Section 2 of the US constitution grants the president the authority to “grant reprieves and pardons for offences against the United States, except in cases of impeachment”. A pardon removes the particular criminal act from an individual’s record, thereby shielding them from future criminal liability for that same act.

As far back as President Richard Nixon’s Watergate scandal — which stemmed from attempts to cover up the involvement of his administration in a break-in at the Democratic National Committee headquarters — legal scholars have been debating the constitutionality of a presidential self-pardon without a clear consensus.

Those arguing the legality of self-pardon point to the US Supreme Court opinion in the case of Ex parte Garland, issued in 1866, concluding that the president’s pardon power is unlimited and that: “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.” Moreover, the constitutional check on executive abuse of authority is impeachment by the House of Representatives and trial by the Senate, making restraints on pardoning power unnecessary.

Although the unlimited executive authority to pardon has been reaffirmed in other Supreme Court cases, the facts have always involved presidential pardon of others, not the president himself. Thus, a self-pardon by Trump would be the first of more than 20,000 instances of presidential pardons in the US.

The legal scholars who argue self-pardon contravenes the US constitution emphasize the basic structure of the document bars self-dealing. To allow a president to pardon himself would violate the rule of law principle that one cannot be one’s own judge. Furthermore, as Supreme Court Chief Justice Marshall pointed out in 1833, a pardon is “an act of grace” and mercy toward another. Following this reasoning, a literal interpretation of “grant” is an act between two different people — a grantor and a recipient.

Despite these ongoing disagreements within the legal community, the most likely explanation for the absence of self-pardons is political, not legal. Nixon, who resigned before he could be impeached, would have effectively admitted to an unlawful involvement in the Watergate scandal if he had issued a self-pardon.

Similarly, George H W Bush, who was investigated for his role in the Iran-Contra affair, would have had to admit he played a role in the scandal that led to the conviction of senior members of his administration. A self-pardon would have tarnished Bush’s legacy and let him go down in history as a weak and corrupt leader.

Instead, these presidents either relied on their successors to pardon them, as was the case of Nixon with President Gerald Ford, or not prosecute as in the case of Bush with President Bill Clinton.

This leads us to the most likely reason Trump did not issue a self-pardon — President-elect Joe Biden’s lack of political appetite for more divisiveness. Biden is inheriting a highly polarised country that is still reeling from an attempted insurgency by a mushrooming far-right movement. The same movement constitutes Trump’s political base and rejects the legitimacy of Biden’s electoral victory. Putting their leader on trial would simply feed their conspiracy theories and encourage them to continue glorifying Trump as a white saviour.

The last thing Biden wants as he tries to heal a divided nation and pull the country out of an economic recession is the first-ever criminal trial of a former president who craves nothing more than the media spotlight. A high-profile prosecution would only feed Trump’s narratives of victimhood and “witch hunts” that would twist the disgrace of being impeached (twice) into political gain. Indeed, the siege on the Capitol on January 6 displayed the potency of Trump’s influence in inciting his disaffected constituency toward violence.

But just as Trump refused to acknowledge his incendiary speech endangered our democracy, he did not pardon himself. For that would have required Trump to admit what most Americans already know — that he is a criminal.

— This article was originally published on Al Jazeera here.

 

February 5, 2021 | Permalink | Comments (0)

Wednesday, February 3, 2021

Biden Administration Drops Investigation of Yale's Race-Conscious Admissions Policies

Monday, January 18, 2021

Polls Show Americans' Loss of Trust in Electoral System

The Hill recently released a January 8-11, 2021 poll showing 49% of respondents did not have confidence in state election authorities' ability to fairly and accurately count their votes.  Disaggregated by political party, only 29% of Republicans and 73% of Democrats were confident in their state's electoral authorities.  Similarly, the overall confidence in American electoral systems was less than half at 42%; with Republicans at 19% and Democrats at 67%.  

These numbers show a troubling loss of trust in the election process by conservatives, which is indicia of potentially more violence as an adopted means of addressing political grievances.  Elected officials and law makers would be well advised to heed these trends as one more reason to focus on decreasing the unprecedented levels of political polarization in American society.

For more analysis on these poll numbers, watch Professor Rashawn Ray and Professor Sahar Aziz on The Hill TV.

 

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January 18, 2021 | Permalink | Comments (0)

Friday, January 15, 2021

Bibliography of Books on Muslims and Islam in the US (1965-2020)

For a variety of reasons, Muslims in America are in the public spotlight. As a result, the demand for information and analysis on Muslims and Islam in the United States has risen. In an effort to provide a resource for academics, advocates, journalists, and others, we created this bibliography of over 250 books published between 1965 and 2020 focused on Muslims and Islam in the United States. We did not include books that focus primarily on Islam and/or Muslims outside of the United States.

The bibliography is categorized by subject matter and chronologically with the most recent publications first.  The categories include anthropology, biography, health, history, law, political science, reference, and sociology. If you find any relevant books are not included in this list, we welcome you contacting us with the citation of your suggested book addition.

The latest version of the bibliography with books published in 2020 is now available here.

 

January 15, 2021 | Permalink | Comments (0)

Wednesday, January 13, 2021

They Want to See the Manager: Mistaking Democracy for Consumption (Prof. Saru Matambanadzo)

They Want to See the Manager: Mistaking Democracy for Consumption

 

The events of January 6, 2021 have been a fertile source of discussion for many legal scholars and experts. As Congress attempted to certify the election of President Joe Biden in Washington, D.C., mobs of right-wing agitators stormed the Capitol and forced their way inside. The rioters had been whipped into a frenzy during a rally held by President Trump and his surrogates. Bursting through barricades and climbing over walls, the mob, entered the halls of Congress. They brought guns and weapons. They broke windows and entered private offices, destroying and looting government property as they went. Five people, including one police officer, died as a result of the riots.

It was really an exercise in White invulnerability as well. Fascinating how when your life matters, authorities manage not to shoot you with bullets or blind you with bean bags, or spray tear gas at you. Mostly. There was also a perception that President Trump’s loss is a loss for White privilege and White supremacy in the United States is likely and underlying motivator for those who participated. This mob was overwhelmingly white, seen sporting Confederate flags and shirts, and carrying banners endorsing White supremacy and Anti-Semitism. The mob was also comprised of fairly middle class and even upper-class people, with one individual flying to the protest in a private jet.

It was a stunning display of how White privilege accords safety, security, and the benefit doubt to individuals even when they are in the wrong. It provided crucial information about who has the right to protest and how this protest should be received, as Professor Eddie Glaude pointed out in an interview with NPR. 

By this time, there has been a lot of popular commentary on what the Times of India dubbed the Coup Klux Klan. Commentators have focused on the mob’s disdain and disregard for democracy, the halls of Congress, and our national democratic institutions.

No justice no peace

Some have focused on Republican complicity and the subsequent bipartisan disavowal of the rioting and looting mob in the wake of the crisis. Still others have examined the violence deployed by the individuals who entered the Capitol Building. And others have focused on the seeming lack of security, and the uneven enforcement of “law and order” that would have been vigorously and forcefully applied if the individuals storming the Capitol were Black, Latino, or Muslim.  

Throughout the commentary, I kept thinking about how familiar the hostile entitled violence looked and felt. Of course, unhinged White mob violence will look familiar to those who study the history or race in the United States. Rabid hostility about the possibility of a multiracial majority coalition organizing together to exercise power in the United States spurred White mob violence during Reconstruction, and violence and hostility that continued into the Jim Crow Era. It would also look and feel familiar to those for who understand how Black communities, businesses, and homes were destroyed by White Mob violence in late 19th and early 20th Century incidents like the Springfield Massacre of 1908 in Illinois, the  Tulsa Race Riots of 1921 in Oklahoma and the Rosewood Massacre of 1923 in Florida, among others. But as critical race commentators have also pointed out, such rambunctious displays of wanton violence, looting, and rioting by White people, typically perceived as harmless, also occur when sports teams win or lose.

But to me, as a survivor of low wage large department store retail work, the violent mobs of looting angry White people besieging the capital reminded me of something else: Black Friday. In the United States, “Black Friday,” is the “first” Christmas shopping day after the “Thanksgiving Celebration.” On Black Friday, people in the United States follow a celebration that mythologizes our violent colonial past, which is painful for many indigenous people in the United States, with a day in which centers finance capitalist consumption. Because people are often desperate to obtain consumer goods at low prices, a sort of frenzy emerges on Black Friday which often results in injury and rioting over televisions, slippers, and other Christmas presents.

The echoes of Black Friday mobs, large groups of desperate but entitled mostly White persons demanding to be heard and served, placed into sharp relief the nature of President Trump’s attempted coup. I started thinking about how the mob of disgruntled angry White people were reminiscent of a pissed off group of customers demanding that their coupon for 1 Free Republican President be honored. I don’t think I was alone in seeing this. Anyone who has worked a low wage public facing customer service job in food service or retail or those who have worked a low wage patient facing job in health care recognize the cut of the mob’s jib. What I saw was what I often feared as a young worker, what I still cringe to see as an adult: angry economically privileged White people who are demanding to see a manager.

The Karens and Terrys (which may be the male equivalent of Karen) did not get what they wanted. The idea that making your voice heard gives you license to engage in violent abusive behavior no matter the cost reduced the Capitol building to an Olive Garden and Congress to the errant managers that needed to be dressed down. While some may say this trivializes what happened last week, we must understand how difficult, how volatile, how dangerous customers in retail and service can potentially be.

These are the people who wander around Target openly carrying a gun when the store policy is no firearms on the premise. And there are no consequences. They are the people who violently bully the retail associates asking them to wear masks at the door. They are the people who yell at service employees over small things. These people live in a have it your way world where they are petty despots.

Security guards and police had trouble subduing them or just failed to take action in many moments. And members of Congress hid from them. Even the Republicans who were pretending to be their allies barricaded themselves in their offices when they were the managers sought by Karen and Terry. But understand that retail workers and service workers subdue frothing at the mouth angry individuals like this on a regular basis – often whole groups of them.

Rioting angry insane entitled White people like the ones at the Capitol are what retail associates, waitresses, bouncers, and bartenders deescalate all the time in the United States. And it is good to remember this as many of us seem willing to say that retail workers and service workers do easy jobs. When Karen and Terry climbed the walls and demanded to see the manager the police and Congressmen, who are paid way more than workers in the restaurant industry, retail, or customer service, were afraid to engage with them and deescalate the situation.

None of this removes the reality that the mob of rioters and looters seemed deeply sympathetic to White Supremacy and conspiracy theories. And this analysis does not excuse the fact that if Black or Brown people had engaged in similar behavior, barging into a secure government building and damaging property, breaking windows, stealing, and looting, we would be speaking about blood flowing down the steps of the Capitol building. While there have been some consequences in terms of arrests and job losses, had the protestors been Black, Brown, Latino, or Queer, we would be mourning a situation in which the National Guard and Washington, D.C. police would have murdered or injured many people.

What my analysis above does provide, however, is the revelation of how class privilege and White supremacy allow some people to perceive foundational democratic institutions as matters of consumer choice and privilege. It also reveals how Whiteness and class privilege intersect to create systemic forms of protection and security for some people, while denying it to others. And it reveals how class privilege and White Supremacy function together in ways that marginalize working people across lines of class solidarity.

In closing, the following caveat is in order. There are historical reasons why Black persons and other people of color are not part of the group of demanding consumers labeled as Karens and Terrys. There are bad individual customers among minority groups, but the systemic exclusion of people of color from stores and places of public accommodation has rendered their relationship to retail and service more precarious. But that is another post.

-          Saru M. Matambanadzo, Moise S. Steege, Jr. Associate Professor of Law, Tulane University School of Law

 

January 13, 2021 | Permalink | Comments (0)

Monday, January 11, 2021

America's Glaring Double Standards

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In recent weeks, Americans and the world have gotten a racial and religious double-dose of the double standards that fuel law and policy in this country. While many would like to think that equality and egalitarianism are the order of the day, recent events prove otherwise. Just a quick look at the Christmas bombing in Tennessee and the Capitol riot in Washington D.C. lay bare the two Americas that exist for Muslims and racial minorities.

It was just hours into Christmas day when a suicide bombing detonated an RV in downtown Nashville. To grasp the gravity of this event altogether, consider the rarity of a suicide bombing in the United States. Most would associate such behavior with Muslim terrorists abroad, but this was a home-grown American. Yet this shocking and startling event hardly made headlines—and when the came, they were not the type that one might have seen had the bomber been Muslim.

The problem is, no one ever really learned about this man’s religion. In a scathing opinion piece, If the Nashville bomber were Muslim, he would be called a Terrorist, Dean Obeidallah notes that the fact we did not learn of his religion means that it is safe to assume was not Muslim. For if he were, that would have been the first thing we learned. Instead of “terrorist,” “extremist,” or “religious fanatic,” the media used terms like “loner,” “recluse,” and “quiet life” to describe the individual.  As the author describes, “Of course, if [he] were Muslim, there’s no way there would be a nuanced analysis of his motivation like the one we’ve seen in headlines. Nope, it would be assumed by most that since he’s Muslim, he had to have a political agenda.”

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Muslims have felt the sting of this double standard, particularly the sensationalism of a suicide bombing hardly getting media play. Meanwhile, back when Timothy McVeigh bombed a federal building in Oklahoma, many in the media automatically assumed it was the work of Muslims. Underlying this harsh double-standard is a logic that assumes Americans cannot be religious extremists or take the shape of what was formerly believed to be the provenance of fanatics from the Middle East.

Not to be outdone by the Christmas bombing, On January 6, 2021, rioters inspired by the words of the sitting president, stormed the Capitol Building in D.C. In the process they wreaked havoc on the building itself, breaking windows and doors, and ransacking offices of congressmembers. At least 5 people died in the event, including a pregnant woman who was shot and a police officer who died as result of the melee. There had not been such an attack on the Capitol in the modern era.

Perhaps the most noticeable fact of the events was that the police were woefully outnumbered and underprepared for what unfolded. Despite that the president had been riling up his base to attend the protest weeks in advance, despite that on social media there were all sorts of indications that the protest would turn violent, and despite that just prior, the president made a speech that prodded his followers to march to the Capitol Building and to “show strength,” the cops were overrun in just minutes.

It is here that the spectacle begins. One need only remember the George Floyd protests, just the summer before. Images of police running down protestors, pushing, kicking, and beating, firing rubber bullets, and hardly hesitating to use pepper spray were a permanent fixture on the news. In the very same city. From those protests, if there were any clear message sent to the groups of Black Lives Matter organizers and protestors, it was that “we will use lethal force.” Here it is backwards as this image shows how police responded to Black protest.

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Fast forward to the Capitol riots, and the joke becomes obvious.

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While the George Floyd protests in D.C. were peaceful, the capitol rioters were violent—and had weapons. They came to fight. Yet it is almost as if the police gave them a free pass. No bullets, no rubber bullets, no baton beating, sparingly-used pepper spray, and very little armed force was used. Instead, there is a photo of a police officer taking a selfie with one of the protestors. Law professor Anthony Farley noted the irony and asks why these protestors were not treated to drone strikes as in other parts of the world: 

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As unpalpable as these events are for our society, they do the uniquely good work of showing us who we are. As another law professor, Khaled Beydoun described in a tweet:

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January 11, 2021 | Permalink | Comments (0)

Thursday, January 7, 2021

Black political power in the South

Renuka Rayasam of Politico recently wrote an interesting article entitled "The Southern state where Black voters are gaining in numbers, but not power".  She contrasts Georgia with Mississippi and provides insight on how Black voters can shape the Democratic Party's future in the South, if the Party can earn their trust and support.

January 7, 2021 | Permalink | Comments (0)