Friday, January 10, 2020
Harvard Latinx Law Review has published "Not A Matter of If, But ‘When’: Expanding the Immigration Caging Machine Regardless of Nielsen" by HLS 3L Felipe Hernández.
Hernández notes in his own words the following four arguments:
(1) Settler-Colonialism: The expanding deportation machine is a "legal system" rooted in the settler-colonial practices that brutally murdered and displaced Native Americans, enslaved peoples of African descent, and caged and killed Brown and Asian folx. This means that the processes, institutions, politics, and tactics have evolved from this history and are allowed in our legal system. We must grapple with these roots to see how today’s practices are an extension of a long historical practice of State violence. Doing so will allow us to build cross community solidarity to abolish the tentacles of the same beast that hurt us all.
(2) More Deportations = More Institutional Power and Profits. Next, I uncover the institutional triangle of actors who make up the immigration caging machine. They evolved from the settler-colonial roots and include Democratic & Republican Legislators (State, Local, and Federal), Executive Enforcers (e.g. ICE, CBP, Local Police, Prosecutors), and (For-profit) Prisons. I show how they work together towards expanding and refining the tactics to criminalize, cage and remove as many people deemed "illegal." For example, state legislators continue to expand ways illegalized people can be labeled "criminals" and subject to caging and removal. This is due in large part to lobbying by private prisons, prosecutors, and police unions. Once in the system they are easily funneled to deportation and everyone in these institutions benefits by way of promotions, elected office, campaign funds, work contracts, etc. As some legislators and some organizers push a narrow "good immigrant" construct, States are able to expand who is a "criminal" and more people are caught in the deportation machine’s net.
(3) The Supreme Court is Complicit and will Not Save Us: Third, I examine all Supreme Court decisions related to immigration mandatory detention to show how the Court has overwhelmingly allowed the expansion of the caging machine, narrowed relief, and allowed Congress to label people deportable for a growing number of reasons. I show how the liberal legal strategy of asking the Court for more due process, reforms, and minimal protections has actually helped refine how the Machine is able to cage and harm more immigrants. Specifically, this has incentivized politicians, prosecutors, ICE/police, and courts to expand who is illegalized as a "criminal alien" who are offered little/no protection in exchange for offering minimal protection to those labeled as "good immigrants." Thus, the legal system pits immigrants against each other in an exchange of "rights." Recently, the Supreme Court allowed DHS to detain and cage someone at any time after they are released from criminal custody (Nielsen v. Preap, 2019). This means that someone who served time for a drug charge 20 years ago, for example, could be held in immigration prisons without bond and deported. As a result of this recent ruling, the Supreme Court bolstered Congressional power to use immigration prisons for deportation. It also incentivized private and State actors to bolster investment in immigration prisons, broaden criminal statutes to capture more immigrants, and expand State and Federal policing power.
(4) Abolish the U.S. Immigration Caging Machine: This article concludes by arguing that, following the lead/vision/strategy of organizers and directly impacted communities, movement lawyers must move beyond reform and instead abolish the immigration caging machine and go beyond #AbolishICE by abolishing prisons, police, prosecutors, criminal statutes, and the legal concept of citizenship. We must support grassroots organizers who are building community power, abolitionist strategies, and divest from the "legal system."
Thursday, January 2, 2020
When Islam and human rights are discussed together, the conversation quickly turns into an abstract, dichotomous debate as to whether the two are compatible. A common line of argumentation proffers Islamic law is fundamentally antithetical to universal human rights norms, while an opposing view rebuts that post-World War II human rights laws are created by former colonialist powers as the latest iteration of Western nations’ imposition of their religious, social, and political order on the global south and east.
Further de-legitimizing human rights law is selective enforcement that exempts European and American persons—the most glaring example being the torture of thousands of Muslim detainees in the Global War on Terror. For these critics, purported universal human rights norms are nothing more than a ruse to punish African, Middle Eastern, Asian, and Latin American state leaders who fail to obey Western states’ hegemonic interests.
Notwithstanding reasonable suspicions of the asymmetrical power animating the international human rights legal regime, the idea that all humans have some fundamental natural rights traverses cultures, religions, and time. Thus, any good faith debates on the compatibility of Islamic law and human rights should not be as concerned with whether Islamic law mirrors Western law—for that would indeed be legal and cultural imperialism—but rather examine the commonalities between Islamic human rights norms and post-WWII Western human rights norms.
While acknowledging the importance of theoretical discussions, this article takes a different approach. Moving beyond an analysis of what is written in religious and legal texts or debated by Islamic scholars, I examine how Islam inspires lay Muslims to defend and advocate for human rights. To that end, I explore how Muslims advocate for human and civil rights—as a result of rather than despite—their Islamic beliefs and Muslim identity. Accordingly, this article focuses on Muslims in the United States as a case study for how commitments to human rights manifest in the lived experiences of Muslims.
Muslim activists in the United States are putting their Islamic faith into action through cross-racial and interfaith rights advocacy. Their collective action for nearly two decades brings into sharp relief the argument that the political environment, not solely religion, facilitates protection of human rights. Whether it is in Muslim-majority democratic countries such as Indonesia and Tunisia or Christian-majority countries such as South Africa, the United States, and some European nations, Muslims living in pluralistic democratic societies defend human rights because of their faith. In doing so, these Muslims demonstrate that authoritarian and politically repressive regimes of most Muslim-majority countries—most of whom are supported by Western states—are more determinative of human rights abuses than the religious beliefs of citizens in Muslim-majority countries.
To read the full article forthcoming in the Oxford Research Encyclopedia on Religion, click here.
Sunday, December 29, 2019
On December 3, Senator Kamala Harris ended her bid to become the 2020 Democratic nominee for President. Harris has been the most prominent and popular woman of color to be a major party presidential candidate in any election cycle . Back in February 2019, shortly after she had announced her candidacy, I wrote about Harris’s diverse background and multiple identities. I posed the question of whether she could employ those identities as effectively as Barack Obama did during his 2008 campaign and subsequent presidency. I concluded by noting that “watching Kamala Harris over the next year may provide many lessons not only on racial identity politics, but also on success and progress in an increasingly diverse America.”
Sadly, the lessons were mostly about challenges and divides rather than success and progress. Harris and Obama both had to deal with racism, but Harris also had to confront the unique challenges that women of color, and particularly Black women, face as candidates for leadership positions. Her campaign highlighted the sexist lens through which we judge such candidates—paralleling the gendered nature of Hillary Clinton’s failed bid in 2016. Additionally, Harris’s experience illustrated tensions among the Black electorate, with its various cultural and generational divides. Racial identity politics are often framed in a simplistic, “Black-and-White” manner, but Kamala Harris—even more than Barack Obama—shows how racial identity politics are more complicated and constantly evolving.
One of Barack Obama’s biggest challenges was to mitigate racial stereotypes in front of a national audience, much of which was initially skeptical of him. But Obama was well-equipped for this challenge. His background as the first Black Editor-in-Chief of the Harvard Law Review, among many other accomplishments, quelled most doubts about his intelligence. Obama carefully cultivated a non-threatening persona—rarely did he appear confrontational, lest White Americans and others perceive him as hostile and intimidating. Instead, Obama exuded a dignified masculinity—he was smart, cool, assertive but not overbearing, and he was more relatable than one might expect from an Ivy League-educated law professor. He speaking style was well-polished, “articulate”, and sometimes professorial—but with just enough fillers like “you know” to appear human and down-to-earth. His references to Jay-Z, Beyoncé, and other pop culture icons made him seem hip and in touch with young people. Obama was also a loyal, family man—an image buttressed by the strong presence of First Lady Michelle Obama, along with their daughters, Malia and Sasha.
In this way, Obama presented himself as counterstereotypic: he defied every prominent negative stereotype of Black males and thus made himself electable. And as he aspired to become the first Black President—Obama’s 2008 presidential campaign was inspirational, almost by default. Even so, Obama faced racism in numerous forms: the birtherism promoted by Donald Trump, accusations of being “uppity”, obstruction of his agenda, attempt to tarnish his legacy, and other types of disrespect .
But Kamala Harris had to deal with more than these racial stereotypes. Thirty years ago, Professor Kimberlee Crenshaw devised the concept of intersectionality—a framework that focuses on the dual oppression faced by members of multiple marginalized groups: for example, Black women facing the combined oppression of racism and sexism. Harris’s campaign embodied such intersectionality. She had to demonstrate that she was competent and assertive, but without appearing overbearing and unlikeable—lest she suffer the fate that Hillary Clinton did in 2016. While White male presidential candidates such as Donald Trump or Bernie Sanders can actually reap rewards for displays of anger and passion, women and minority candidates are often punished just for displaying ambition and assertiveness. These dilemmas were compounded for Harris because the media often portrays Black women in particular as irrationally aggressive. Harris often employed her background as a prosecutor to ask sharp questions and give pointed responses, but viewed through a racist and sexist lens, these actions also served to reinforce the “angry Black woman” stereotype. And unlike Obama, American gender norms did not afford Harris a way to avoid this stereotype and still be seen as a bold and assertive leader.
In their efforts to gain support from Black voters, Obama and Harris also both faced the dilemma of relating to African Americans. Neither of them had African American parents, and both had their Blackness (or at least their “African American-ness”) questioned—something that would not happen to White candidates who are courting Black voters . Obama and Harris had to deal with the complex and sometimes contentious relationship between African Americans and Black immigrants from Africa and the Caribbean—a divide that has gradually become more nationally visible. During the 2000s, several academics pointed out that among Black students at elite universities, Black immigrants and their children are highly overrepresented compared to multigenerational African Americans . This raised questions about whether affirmative action at elite universities was fair and just. In 2014, Ta-Nehisi Coates published his well-known essay, “The Case for Reparations.” Public discourse on reparations has increased significantly, to the point where the issue has come up in the 2020 Democratic nomination process; in fact, candidate Marianne Williamson largely based her platform on a call for reparations . Also, groups such as American Descendants of Slaves (ADOS) highlight not only the tremendous racial wealth gap rooted in slavery, but also the distinction between African Americans (many of whom have ancestors who were enslaved persons in America) and Black immigrants (who do not have such ancestors, even if they descend from enslaved persons elsewhere in the world).
Within this milieu, the contrast between Obama and Harris is also revealing. Obama’s mother was White and his father was Kenyan. He was raised largely in Hawaii and Indonesia—places with very few African Americans. In his twenties, Obama did work as a community organizer in predominantly African American neighborhoods on the South Side of Chicago, where he developed relationships with various African American leaders. But Barack Obama’s strongest connection to African American communities was his wife, Michelle Obama. She grew up in a predominantly African American neighborhood on the South Side of Chicago. Both of her parents were descended from enslaved persons in South Carolina, and she had grown up with a keen awareness of her African American roots. Through her strong, graceful, and elegant presence, Michelle Obama herself was inspirational. She thus provided Barack with a foundation within African American communities that he may otherwise have lacked.
On the surface, Kamala Harris actually had more roots in African American communities than Obama. She was born in Oakland, California—for many years the hub of activism for the Black Panther Party—and she lived in the Bay Area for much of her childhood. Although they were not African American, Harris’s parents were both people of color and were civil rights activists in the 1960s. Thus, they were more attuned to American racism than Obama’s parents. As a child, Harris was part of the first group of students to desegregate Berkeley schools via a voluntary busing program. She attended a Black Baptist Church while growing up (along with a Hindu Temple), in contrast to Obama (who did not do so until his adulthood). Harris’s college-age experiences also exemplified her identity as an African American woman: she attended Howard University and became a member of Alpha Kappa Alpha Sorority, Inc.
In 2008, Harris had defended Obama when some raised questions about his authenticity. But in 2019, she had to confront these issues in a more charged context—due to the rise of ADOS and developing discourse on reparations, affirmative action, and related issues. ADOS and others questioned whether Kamala Harris could relate to the experiences of African Americans. Her background as a prosecutor also worked against in her in African American communities, where the mass incarceration of Black men is a major concern. And importantly, Harris did not have Michelle Obama to anchor her connection to these communities. All of these challenges made it more difficult for Harris to gain a footing among African American voters.
Additionally, the 2020 Democratic nomination process illustrated the generational divide among Black voters, and it debunked the common belief that Black voters will simply prefer Black candidates. Former Vice President Joe Biden has led the polls among Black voters by a large margin. Biden’s support comes largely from older Black voters, but even among Black voters age 18-29, Senator Bernie Sanders is the leading candidate—in spite of his challenges connecting to Black communities. Biden’s overall lead among Black voters has remained steady, in spite of criticisms of his record on racial issues, a series of racial gaffes that he has made, and repeated attempts by Harris and Senator Cory Booker to paint Biden as out of touch with Black voters. During the nationally televised Democratic primary debate on June 27, 2019, Harris confronted Biden on his opposition to court-ordered busing to achieve school desegregation back in the 1970s. She highlighted her own experience with busing and asked for Biden to apologize for his position. Right after the debate, Harris tweeted a picture of herself when she was a young girl, which humanized her and served to partially mitigate the “angry Black woman” image. But while Harris received a temporary boost in the polls from this exchange, she faltered when asked whether she would now support court-ordered busing. Biden’s record and position on busing are more complicated and nuanced than presented in the media, and he is well-respected in Black communities as a proponent of civil rights. The exchange with Biden ultimately backfired for Harris . In the next debate on July 31, Representative Tulsi Gabbard attacked Harris’s health care plan and her record as a prosecutor, and Harris appeared flustered by the criticism. Her poll numbers soon went back down, and she did not recover. Ultimately, although she had some prominent Black supporters, Harris did not fair particularly well among Black voters.
There were other reasons for the demise of Harris’s campaign. Barack Obama did not cement his support among Black voters until after he won the Iowa Caucuses, and Harris’s campaign did not last that long. Moreover, in contrast to Obama, whose only serious competition was Hillary Clinton, Harris had over 20 competitors, including several candidates of color. Thus, she could not garner the same amount of attention that Obama commanded. Harris had to work harder to distinguish herself from the field, and she struggled to do so.
More general problems also plagued Harris’s campaign. She had trouble defining her vision, caught in between the moderate and progressive wings of the Democratic Party. Her changing position on health care exacerbated this dilemma. Additionally, her demeanor during the debates was not always friendly—a perception augmented by the race and gender biases noted earlier. Harking back to her days as a prosecutor, Harris sometimes came across as if she was lecturing or scolding the audience. And she made some other mistakes.
But Kamala Harris was punished more for these types of mistakes than her White male colleagues were, and also more than Barack Obama was. Her candidacy underscored the multifaceted nature of racial identity politics, showing how these are infused with sexist gender norms, and with cultural and generational divides. And most significantly, it highlighted the difficult challenges that women of color—and especially Black women—face when pursuing their ambitions.
 There have been a handful of women of color candidates in prior election cycles, including Shirley Chisholm, Patsy Mink, Carol Moseley Braun, Cynthia McKinney, and Lenora Fulani. Additionally, Tulsi Gabbard is a woman of color candidate for the 2020 Democratic nomination.
 Black commentators such as Cornel West and Tavis Smiley also criticized Obama for failing to address issues that were important to Black communities. Conversely, my mentor, the late Professor Derrick Bell, was sometimes critical of Obama but also highlighted the difficult task faced by the first Black President—the various directions he would be pulled, and the virtually impossible balancing act that he would have to play. I will not speculate on which candidate Professor Bell would favor in the 2020 Democratic nomination process; however, I am quite sure he would agree with me (a relatively uncommon occurrence) that Kamala Harris faced an even more difficult balancing act.
 Although their Blackness is not questioned, White candidates do face criticism when they are unable to relate to Black communities. During, 2020 Democratic nomination season, Pete Buttigieg and Bernie Sanders in particular have faced this dilemma. Conversely, unlike Buttigieg and Sanders, Joe Biden has a long history of reaching out to Black voters and has been given more leeway. Biden’s connection to Barack Obama has also helped him greatly in this regard.
 These include Harvard professors Lani Guinier and Henry Louis Gates, Indiana University law professor Kevin Brown, University of Pennsylvania sociologist Camille Charles, and Boston University School of Law Dean Angela Onwuachi-Willig.
 In 2019, even conservative New York Times columnist David Brooks wrote a column in favor of reparations.
 Cory Booker did not have any more success in his attempts to win over Black voters from Biden. For example, in the July 31, 2020, Biden and Booker had an exchange about their respective records on criminal justice issues. Booker said to Biden, “Mr. Vice President, there’s a saying in my community: You’re dipping into the Kool-Aid and you don’t even know the flavor[.]” While some found this line to be clever, many found it to be trite, passé, and pandering. Ultimately, the exchange did not benefit Booker.
Acknowledgement: I thank Professors Sonia Gipson Rankin and Stacy Hawkins for their helpful comments on this blog post.
Friday, December 20, 2019
At the 2020 Pro Bowl, former NFL quarterback Michael Vick will be honored as one of the legends captains. Vick’s selection has sparked controversy, because in 2007, he was convicted of operating a dog fighting ring. Details about the ring revealed that many dogs were killed by Vick and his associates in extremely cruel fashion. There have been several petitions, garnering hundreds of thousands of signatures, condemning the NFL and demanding that Vick not be honored.
But his detractors act as if Michael Vick still supports dogfighting. Vick has served his prison sentence, and beyond that, he has sought redemption. He admitted that he was wrong and that dog fighting is a reprehensible activity. Moreover, Vick became quite involved in the effort to eradicate dog fighting. He has spoken out against it, donated money to animal rights organizations, and also advocated for the Animal Fighting Spectator Prohibition Act of 2011. Representative Jim Moran, Co-chair of the Congressional Animal Protection Caucus, even called Vick “a ‘leader’ in the fight against animal cruelty.” Honoring Michael Vick will be a statement against dogfighting, not for it. Moreover, it will send the message that redemption for wrongdoing is possible and desirable.
Vick has brought an anti-dog fighting message to an audience who might not otherwise hear it. The membership of most animal rights organizations is, by far, predominantly White. People of color do care about animals, but we tend to prioritize issues that directly affect our communities and to devote our energy to movements like #BlackLivesMatter. But by working with the Humane Society, Michael Vick has added another dimension to the animal rights movement. He has reached many Black and Brown children who are from communities where dog fighting occurs commonly.
Vick was one of those children. He was exposed to dog fighting at a young age, and like many youth in all walks of life, he came to accept what he saw as normal. In fact, dog fighting was common in the U.S. through much of the 19th and 20th century: the United Kennel Club was actually founded to organize pedigrees for dog-fighting. Even today, unfortunately, dog fighting legal in Japan, China, and some other countries. And when Vick was growing up (and during my own lifetime), it was still legal in some U.S. states. So Vick’s former behavior has to be viewed in context. Nevertheless, through his advocacy over the past decade, Vick has probably saved more dogs from dying than he and his associates killed in the past.
There is also a broader historical context to consider here. America has so many monuments and honors to people who owned slaves, fought for the Confederacy, promoted the oppression and genocide of Native Americans, and committed many other heinous acts. What kind of message does it send to children when we can honor those who enslaved and lynched Black people, but we must shun those who killed dogs--even when they have repented?
Are Black lives are worth less than dogs’ lives? Throughout much of American history, White people and others viewed Black people as sub-human. Organizations such as the Ku Klux Klan existed to terrorize Black people. And as recently as 2010, nine years ago, we had a U.S. Senator, Robert Byrd of West Virginia, who had previously been a member of the Ku Klux Klan.
Ironically, Senator Byrd was one of Michael Vick’s most vocal critics in 2007, when Vick’s involvement with dog fighting was exposed. Byrd famously stated on the Senate floor that he was “confident that the hottest places in hell are reserved for sick and brutal people who hold God’s creatures in such brutal and cruel contempt.” Those are very strong words, and since Byrd passed away a few years later, we don’t know if he would have ever forgiven Michael Vick.
But like Michael Vick, Senator Byrd sought redemption for his own past actions. Many years after he left the KKK, Byrd called his involvement in it “the greatest mistake I ever made.” In his autobiography, Senator Byrd reflected:
I was sorely afflicted with tunnel vision—a jejune and immature outlook—seeing only what I wanted to see because I thought the Klan could provide an outlet for my talents and ambitions. ... I know now I was wrong. Intolerance had no place in America. I apologized a thousand times ... and I don't mind apologizing over and over again. I can't erase what happened … [.]
Senator Byrd recognized that he could never fully make amends for his membership in the KKK, but he was going to try anyway. While he was initially quite hostile to civil rights legislation, Byrd later changed his views. He had filibustered the Civil Rights Act of 1964 and opposed the Voting Rights Act of 1965—but for the last three decades of his life, Byrd was one of the Senate’s most effective advocates for civil rights. Because he was the longest-serving member of Congress in U.S. history and held many leadership positions along the way, Byrd had a lot of influence on his colleagues. Hilary O. Shelton, Director of the NAACP Washington Bureau and Senior Vice President for Advocacy and Policy, noted that Byrd “was a master of the Senate Rules, and helped strategize passage of legislation that helped millions of Americans.”
Just as Michael Vick was able to reach Black and Brown youth that PETA and the Humane Society could not, Robert Byrd could marshal his influence, knowledge, and his White male privilege to promote civil rights. At the time of his death in 2010, Byrd had a 100 percent voting record on 33 issues that were deemed critical by the NAACP—a designation attained by less than 20 percent of Senators. He supported hate crimes legislation and other civil rights bills, and he played a key role in the 2006 reauthorization of the Voting Rights Act—forty years after he had originally opposed the Act. And upon his death, the NAACP called Byrd a champion for civil rights and liberties" and stated that he “came to consistently support the NAACP civil rights agenda.”
We can’t know Senator Byrd’s motivation. He may have just wanted to improve his historical legacy, or he may have genuinely seen the immense error of his earlier beliefs. It was probably some combination of both. But whatever the case, because he sought redemption and tried to make amends, the nation’s leading civil rights organization forgave Senator Byrd and even honored him.
There are many other examples of Black people forgiving heinous acts such as unjustified police shootings and even racist mass murders. The perpetrators of these acts may not always have been deserving: some have not even repented. But Vick has sought redemption and tried to make amends. And just as the NAACP forgave and honored Senator Robert Byrd, we should extend forgiveness and let the NFL honor Michael Vick.
Wednesday, December 11, 2019
Two universal truths about patriarchy: it’s global and it’s tenacious. As women in legal academia, we are not shielded from the consequences of this reality.
Starting from this premise, my contribution to this important (yet perennial) discussion on gender (in)equity in legal academia is framed around three points. First, formalistic identity politics grounded in immutable characteristics is failing our generation of women (and women of color in particular) in the legal profession, including in the academy.
Second, women who have managed to overcome the hurdles imposed by patriarchy to reach official leadership positions are as subject to institutional capture and conflicts of interest as their male counterparts. Third, the politics of civility in law schools is a patriarchal tool deployed to constrain women’s ability and willingness to radically reform existing systems of inequality.
Let’s start with the failure of formalistic identity politics. The reasoning that more women and more minorities in power will necessarily produce less sexism and less racism is flawed if the patriarchal systems are left in place. One need only look at formerly colonized countries whose social and political systems continue to perpetuate European white supremacy.
Lighter skin color is still represented in media as more beautiful than darker. Western civilizations and religions are still perceived as superior and more sophisticated. Just as native rulers in the global south and east do not eliminate inferiority complexes deeply entrenched after centuries of white supremacy and European colonialism, increasing female (or racial minority) leaders does not eliminate patriarchy.
Absent purposeful dismantling of these oppressive systems, the change is limited to who implements patriarchy.
When women and racial minorities were either non-existent or miniscule in numbers at law schools, law firms, and law faculty, identity politics served a utilitarian purpose. In sharing the immutable characteristic of gender and race, members of categorically marginalized groups had a common interest in reforming or even destroying existing systems under-paying, demoting, or outright excluding them. Their shared adverse experiences on account of their status as women, people of color, or women of color galvanized them to unite in pursuit of change in their collective interests.
As direct losers in the male and white dominated status quo, their tolerance for slow incremental change was low. These women’s daily lived experiences were proof that the patriarchal foundation of the system needed to be challenged head on, not merely tinkered with around the edges. Increasing the number of women (and minorities) in the legal academy was a necessary step toward those ends.
Due to concerted advocacy over decades, the number of women law students, faculty, and administrators gradually increased. In 2018, women comprised 52% of law students. On law faculties, women are estimated to be between 32% to 38% with women of color comprising less than 10%. In 2013 when the latest data was collected, 36% of tenure-track and tenured professors were women, with the number slowly rising since then. In 2019, approximately 35% of law deans are women.
However, over 70% of legal research and writing professors are women, most of whom do not have tenure-track or tenured positions and are paid significantly less than tenure track and tenured (male and female) law professors. Hence simply putting women in high status positions is no guarantee the gender inequity in pay, promotion, and pedagogy will disappear.
The rise of women into high status tenured and tenure track positions (albeit at a painstakingly slow rate) thus begs the questions: why are so many women still concentrated in non-tenured, lower pay legal research and writing jobs? Why do women law professors earn less on average than male law professors? Why is legal academia experiencing the same phenomena as other industries where positions comprised disproportionately of women become low status and lower paying, including the same jobs previously occupied by men?
More to the point, has the rise in numbers and status of women within the legal academy produced the systemic changes anticipated by our predecessors whose identity politics strategy for change centered around advocating for more women on law faculty and leadership?
To read the full article forthcoming in the Journal of Legal Education (Fall 2019), click here.
Wednesday, November 27, 2019
Call for Participation: EMERGENCY! Democracy Under Siege: Eroding Norms, Abandoning the Rule of Law, and Reemerging Racial Violence
In response to political crises that pose ongoing threats to the fabric of American democracy, the 2020 NE/SE/SW POC conference is excited to announce this call for participation: EMERGENCY! Democracy Under Siege: Eroding Norms, Abandoning the Rule of Law, and Reemerging Racial Violence.
This year’s conference seeks to address and understand the legal and social impacts of being socially constructed and defined as not “American” in the United States… again. White Nationalism and American Nazism is on the rise, and the U.S. Department of Justice surveillance and monitoring of groups espousing these beliefs has declined. Agency regulations have been promulgated without customary administrative policy review resulting in the federal agencies being sued for violating established and long standing administrative procedures. Increased racial animosity has led to emboldened acts of racism and racial violence. From Black Church shootings, continued police shootings of unarmed persons of color, an alarming increase in anti-Semitic hate crimes and violence against the American Jewish and Islamic communities, recent killings of Latinos and immigrants in El Paso, Texas, to current immigration detention centers, to voter suppression laws springing up throughout the nation, things seem to have taken a stark turn backwards from legal and democratic gains achieved during the last century.
Date: May 15-17, 2020
Location: Houston, Texas
The Conference would consist of the following as well as other topics:
- Plenary session on democracy under siege
- Plenary session on migration
- Deans of Color Panel
- Pipeline to Law School, Profession, and Academia
- Bar Exam Performance
- Coalition building among different racial, ethnic, and gendered groups of people of color
- Works-in-progress panels
Although this is the theme and possible topics for the conference, the POC will gladly accept participation that align with the traditional topics and objectives of the conference. The HLRe (The Houston Law Review Off the Record) plans to publish a symposium issue of select papers from the conference.
During the Conference, we will explore what is our role, as faculty of color, in the institutions where we work and in the wider world, in addressing this situation? How do we navigate in a politically polarized environment? How do we support those faculty who may be especially vulnerable? We will interrogate these topics with the pursuit of figuring how to change course in a more democratic and inclusive direction both at home and abroad.
Anyone who is interested in participating, either on a panel or to present a work in progress, complete the form found on the following website: http://law.uh.edu/pocc/.
The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.
Applications are due by January 3, 2020.
Further information can be found at the Conference website.
Monday, October 28, 2019
On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. Almost one year after the trial first began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964. In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body. She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination. Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies.
SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit. Here, the district court’s ruling will likely be affirmed. It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them. One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body. This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies. Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely. The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher.
The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is also sure to appeal subsequently to the High Court. The Court now has a solid conservative majority, with three of the Justices having previously voted to strike down race-conscious admissions policies: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas. Justices Neil Gorsuch and Brett Kavanaugh are also widely thought to oppose such policies. Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions. Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity. This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.
However, there are a few reasons why the Justices might deny cert. First, only three years have passed since the Court decided Fisher v. University of Texas II. Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II. In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings. Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body. Roberts may prefer that the Court wait a few years to take another case. If he can convince at least one other conservative Justice that this is the best course, cert would be denied.
Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter. In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028, which is only nine years away now. After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration. However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding. Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028. They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit.
By 2028, the political implications of an anti-affirmative action ruling may also be different. States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies. Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies. SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina. In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter. A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard.
Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions. Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine. Four decades ago in Bakke, it saved affirmative action. Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies. But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion. Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter. And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.
Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action. Perhaps no major issue before the Court has so repeatedly bucked expectations. At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.
Monday, October 21, 2019
A Most Vicious Cycle: Mass Shootings, Gun Rights, and Police Killings of Blacks (Guest Blog by Prof. SpearIt)
Mass killings continue unabated in the U.S. Since Columbine and Sandy Hook, there have been what seems like countless gun attacks that leave multiple innocent lives lost. Despite the fact that the children lost at Sandy Hook would by now be teenagers, the many killings since then make those tragic events seem like ancient history.
Starting with what seemed to be random killing sprees, efforts have become more ideologically intentional, with Muslim, Jewish, LGBTQ, Black Christian, and most recently, Latino and immigrant communities being the focus of attacks. Although these shootings clearly harm members of these discrete groups, not so visible is how these shootings harm black communities. Indeed, hardly matters which group is the target of a mass shooting, since Blacks, in the end, will also pay a price, particularly when it comes to policing and being on the receiving end of harsh treatment by police.
One point to consider, as history shows, is that mass shootings are invariably followed by legislation that liberalizes gun laws. One study showed that a “single mass shooting leads to an approximately 15% increase in the number of firearm bills introduced within a state the year after the mass shooting…(this) holds for both Republican-controlled and Democrat-controlled legislatures.” Some researchers found that more than “20,000 pieces of gun-related legislation were produced after mass shootings in the last quarter century.” While some states have moved to restrict gun rights, the general thrust of mass shootings has not been to inspire conservative attitudes toward gun rights, but rather, to arm more citizens, allow more carrying of guns, and allow for greater self-defense with guns.
Simultaneous to this gun-rights expansion is the refusal of politicians to regulate guns in a meaningful way. Because of this lack of political will, there is military-grade weaponry on the streets and in the hands of citizens, the mentally ill, and criminals alike. The situation lays an opportune foundation for mass casualties at the hands of a single individual. A simple look at recent killings show that a common denominator was the use of assault rifles.
Under such conditions, the country has become a very dangerous place. It is a new wild, wild, west, where such weaponry, in turn, helps to justify the militarization of police. Although the push to make police more militant began in the 1970s post-Vietnam era, in the following decades, it has been embraced by law enforcement officials. Today, police departments own choppers, tanks, and military trucks, armed with high caliber weapons, flash grenades, helmets, and military armor. Such armament is reasonable and necessary for police to do their jobs in the perilous world that their elected officials have created.
This vicious cycle of mass shootings and police armament directly bears on the killing of Blacks. This is true at least to the extent that mass shootings have stunned, numbed, and dumbed the public to killing in general. In the wake of these mass slaughters, including of children, the police killing of a single black “suspect” holds far less shock value.
The mass loss of life thus makes black lives matter even less. In turn, the case of Colin Kaepernick shows that simply protesting against police brutality can lead to all sorts enragements, the likes of which effectively ended his football career. Even though police stop, arrest, and kill Blacks at higher rates than any other ethnic group, the controversy surrounding his protest has consumed the American public more than the brutal police killing of Blacks.
Even if Blacks are not killed, their communities bear the brunt of heavy police armament. The high-caliber artillery of police translates into real physical pain for these communities. Their residents are the ones likely to be beaten, bruised, tased, stunned, have bones broken, and have sight and hearing lost due to injuries. Some of the damage occurs when simple arrest warrants are executed with Rambo-style tactics, replete with an arsenal of weapons and technology.
In turn, black communities are empirically the least able to arm themselves because of felony disenfranchisement laws. The disproportional representation of Blacks in the criminal justice system yields a disproportionate number of Blacks who cannot legally possess a gun. Hence black communities, more than any other ethnic group, are far outgunned by the police and others who can lawfully possess a gun.
These developments are consequences of an ongoing arms race between police and civilians. This race is stimulated is time another shooting occurs involving guns that are more suited for war than simple self-defense. Thus, as long as lawmakers remain inert when it comes to the killings, the damage will continue, and with it, collateral damage to black communities.
Mass shootings ensure that Blacks will ultimately be at the receiving end of the weapons and technology wielded by police who arm themselves with mass shooters in mind. It is the ultimate bait-and-switch whereby police arms are justified by the weapons used in mass killings, yet Blacks, who are the least-armed, are the ones who are menaced by this armament more than anyone else.
-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law
Monday, October 14, 2019
For nearly 20 years, Muslims in the United States have borne the brunt of aggressive and over-reaching national security practices. Among the most pervasive are security screenings at airports and ports of entry. Muslims’ experiences of being frisked, interrogated about their religious beliefs and practices, and having their electronics confiscated has become so frequent that it is referred to as “Flying While Muslim.”
Underpinning such religious profiling is a massive terrorist watchlist comprising more than 1.1 million names, the majority of whom are Muslim and over 4,600 are U.S. citizens and green cardholders. Multiple federal agencies can nominate persons to the Terrorist Screening Center (TSC), which is responsible for vetting the watchlists. Ninety-nine percent of all nominations are accepted, triggering serious civil liberties concerns with the lack of meaningful review.
After years of litigation, and futile administrative complaints through the DHS Traveler Redress Inquiry Program (TRIP), the Muslim plaintiffs in Elhady v. Kable finally obtained legal relief. On September 4, 2019, the federal district court in Virginia ruled that the watchlisting process is unconstitutional. The absence of a pre- or post-deprivation hearing coupled with a sham administrative grievance process persuaded Judge Trenga to grant summary judgment for plaintiffs on their procedural due process claim.
Most notable was the court’s recognition of the high reputational costs suffered by the Muslim plaintiffs, not only during travel but in other forums. This finding is a welcome humanization of Muslims, whose dignitary and civil rights have been systematically subordinated to abstract national security interests. Whether challenging the National Security Entry Exit Registration System (NSEERS), immigration roundups of Arabs and Muslims after major terrorist attacks, or punitive detention conditions for terrorism suspects, Muslims have consistently been rebuked by courts deferential to the executive branch.
In contrast, the court in Elhady found the plaintiffs had a liberty interest, under the Fifth Amendment Due Process Clause, in being free from false governmental stigmatization as a terrorist. Citing the 1976 Supreme Court case Paul v. Davis, the court stated “[a] person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a ‘stigma-plus.’” To show stigma-plus, plaintiffs must show both a stigmatic statement and a state action that alters or adversely affects plaintiffs’ interests.
The 23 Muslim plaintiffs filled the record with accounts of humiliating and abusive treatment by federal agents in the Customs and Border Patrol and Transportation Security Administration. The lead plaintiff Anas Elhady was held for nearly six hours in “a small, freezing cold holding cell with bright lights,” causing him to be hospitalized. Another plaintiff, Ahmed Al Halabi, was “surrounded by armed CBP officers, handcuffed in front of his children and detained in a freezing cold holding cell for approximately two to three hours” when crossing the Canadian border by car. At least six of the plaintiffs were held at gunpoint, while their friends and families watched in horror. And many were asked intrusive questions about what mosques they attended, what sect of Islam they belong to, and whether they study Islam full time.
After repeated unsuccessful attempts to remove their names from the terrorist watchlist through the DHS TRIP, some plaintiffs stopped traveling outside the United States or on airplanes altogether.
The harmful consequences of being on the watchlist extend beyond travel. The watchlist is widely disseminated to more than 18,000 state, local, county, city, university, tribal, and federal law enforcement agencies and 533 private entities through the National Crime Information System (NCIC). As a result, people wrongly on the watchlist lose jobs. Government employers reference the watchlist for screening of employees and contractors. So too do private employers with transportation and infrastructure functions.
People wrongfully placed on the watch list also cannot own firearms in some states, are denied certain licenses, and have their bank accounts erroneously closed by entities that review the NCIC in their decision-making process. Citizenship and green card applications are indefinitely delayed due to an opaque FBI name check process that relies in part on the terrorist watch list. Additionally, if someone on the watch list is subjected to a minor traffic stop, the police proceed as if they are dealing with a suspected terrorist.
With countless Muslim names on the watchlist, pervasive false stereotypes of Muslims as violent and disloyal are corroborated to the millions of people reviewing the watchlist.
Despite the broad adverse consequences, the standard for being added to the watchlist is vague and low. The TSC accepts nominations to the watchlist for “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities.”
There is no requirement that a person engaged in criminal activity, committed a crime, or even will commit a crime in the future in order to be placed on the watchlist. Hence the decision is based largely on subjective judgments.
Even more problematic is the TSC’s consideration of an individual’s race, beliefs, and activities protected by the First Amendment, travel history, and personal associations in evaluating a nomination. This likely explains the over-representation of Muslims on the watchlist, including at least 4600 U.S. persons. For these reasons, the court found DHS TRIP does not satisfy the Due Process Clause; and a post-deprivation hearing is warranted.
A generation of Americans has come of age in a post-9/11 era where suspecting Muslims of terrorism is the norm. Indeed, over 40 percent of Americans believe Islam is more likely to encourage violence than other religions. Each time someone witnesses a government agent stop, detain, and search a Muslim at the border and airport, Islamophobic stereotypes are validated.
Thus far, the courts have offered little relief for American Muslims’ pursuit of their legal and dignitary rights. Only time will tell if the Elhady case signifies a reversal of this troubling trend or merely an anomaly.
--- This article was originally published in the American Constitution Society Experts Forum here.
Saturday, October 5, 2019
For readers, this title might suggest yet another foray into the many controversies about Donald Trump’s racist tendencies. However, it is not. This article is not about Trump’s treatment of other people, but about how other people have treated Trump, racially speaking that is. Looking at the facts, it is clear that Trump has been, and continues to be, racially persecuted.
Although some might argue that he is simply getting his just deserts for fomenting racial angst, it leads one to wonder why such comments are excused or overlooked. It is indeed an odd spectacle to watch critics of Trump’s racism respond with racial epithets and color-coded jokes. This excused racism must be called out and abandoned for what it is, a counter-racial strategy that is itself tinged with discrimination.
Cheeto, Agent Orange, Orange Julius, and Orange Man are some of the epithets that are used to poke fun at Trump. These characterizations and the many others hardly illicit any protest. Even late-night comedy shows have featured segments that have taken liberties with Trump that would be unimaginable if said about an African-American or Latino politician, or anyone else for that matter. The Late Show host, Stephen Colbert, is known for making jokes about Trump, and in one episode proclaimed, “We have no idea what the color of his skin is.” Jimmy Kimmel has dubbed a book about Trump as “Fifty Shades of Orange.” These and an abundance of other such attacks proclaim open season on Trump, specifically on his color and appearance.
These characterizations are blunt showings of racism by practically any definition. Of course, there are competing definitions of “racism,” but most would seemingly include invidious discrimination based on skin color or physical attributes. Yet these are the exact sort of attacks being launched against Trump. So why the double standard? How can Trump be taken to task about his racist postures when his critics are lobbing back insults that have similar flavor?
Although peoples’ anger and hatred of Trump may excuse this type of joking, there are discrete dangers involved. This sort of counter-racism is just as harmful as the racism that instigates it, and it goes without saying that such talk would never be accepted if the comments were directed at Kamala Harris, Elijah Cummings, or any other non-white member of congress. Yet such conduct continues unabated when it comes to Trump.
Perhaps one of the overarching insights of this phenomenon is that hatred is indeed blinding. For many Americans, Trump represents the epitome of race-hatred, and because of that he is an obvious target of criticism. Yet when that crosses the line into textbook discrimination, it is still a bad thing—even when it happens to an overprivileged, spoon-fed swindler from the dominant racial class.
Although some might counter that some of the joking has to do with the fact that the “color” being discussed is not really his at all. Instead, the jokes are rooted in the premise that he does things to achieve the color he has. While this might seemingly justify the epithets, it does nothing for people who really are that color. Whether through hair color, freckles, or other skin colorations and attributes, there are people who have an “orange” countenance. So, even if Trump’s color may be the bud of a joke, it might not be so funny for people of similar hue.
Attacks on Trump that are couched in racism should not be more acceptable than any other brand of racism. The fact that hatred helps to excuse these attacks should be alarming. It suggests, as a baseline proposition, that society must be vigilant to protect those who are hated or despised the most. Failure on this point can lead to moral breakdown, for as we are witnessing, hatred of Trump has birthed some of the very attitudes for which he is hated. Trump’s brutal immigration policies alone have ignited all sorts of visceral reactions from the American public.
Some might view this as giving Trump a dose of his own racial bigotry, but society must take care not to fall into the trap of condoning racism simply because we despise a person or group, such as immigrants or even a corrupt president.
We must be careful not to allow the hatred to propel us into becoming what we despise.
-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law
The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan. Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019. Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice. Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication. Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019. Proposals and questions should be directed to Bridget Underhill, Symposium Director, at email@example.com.
Deadline: Friday, October 18, 2019
Tuesday, September 24, 2019
Congratulations to Professor Lisa M. Fairfax (George Washington University) on her new casebook Business Organizations: An Integrated Approach (Doctrine and Practice Series). It covers traditional corporate law doctrine and cases and thus will be familiar to corporate law professors, but also uses a variety of techniques to ensure that students are able to understand and learn complex topics in a sophisticated but accessible manner. These techniques include:
- outlining core concepts at the beginning of each chapter
- reinforcing core ideas at the conclusion of each chapter
- presenting short questions before and after the cases to focus on key issues
- using different visuals for text books and statutes
- using problems that contain familiar and relatable factual scenarios throughout the book
- providing quick self-assessments and online multiple choice assessments
- highlighting key business concepts the first time they appear in cases to put those concepts in context
Business Organizations: An Integrated Approach also provides students with opportunities throughout the book to see how the law works in practice, through short drafting exercises and statutory analysis. Business Organizations: An Integrated Approach includes a Teacher's Manual with detailed instructions about how best to use the various techniques and problems in the book and otherwise how best to present materials to students.
Business Organizations: An Integrated Approach also seeks to integrate issues related to social responsibility, sustainability, corporate purpose, and shareholder rights throughout the book. It does so by discussing these themes at the outset and then using problems, questions and text boxes to demonstrate the ways in which these themes arise, and may have an impact on, in different cases and business law contexts.
Tuesday, August 20, 2019
Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions
Robert E. Harding, Jr. Associate Law Professor Blanche Cooke (University of Kentucky) addresses sexual trafficking cases in her latest law review article, "Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions," 24 Berkeley J. Crim. L. 147 (2019). Her work can be used in discussions about sexualized violence in the classroom and with respect to prosecutions. The piece makes the case for the use of expert witnesses in sex trafficking prosecutions. Below is the abstract of the work:
Sex trafficking thrives on intersectional inequality and reinforcing layers of vulnerability. Sex trafficking exists on a continuum of sexualized violence, from microaggressive sexual harassment to macroaggressive gang rapes, all of which create vulnerability in the victim and perfect sovereignty in the perpetrator. Sexualized violence performs power, as it is raced, classed, and gendered. Power not only requires performance, but it necessitates repetitive reenactments of domination in order to normalize its compulsive and pathological nature. Lynchings, police shootings, gang rapes, and sex trafficking are all performances of power on vulnerable bodies through which power perfects itself. The same inequality that creates the necessary preconditions for vulnerability to violence in the first instance, also obfuscates or masks power’s pathology and compulsivity in the investigative and adjudicative processes. By way of illustration, victim blaming renders the pathology of the perpetrator invisible because it removes accountability from the perpetrator and shifts blame onto the victim. Shifting blame onto the victim obfuscates or hides power’s omnipresence, compulsiveness, and pathology. The victim blaming process is pervasive, systemic, and entrenched. Without proper interventions, sex trafficking cases can become ritualized spectacle, where sexualized violence as well as its accompanying investigation and adjudication convince the factfinder of the pathology of the victim and the sovereignty of the perpetrator. The pathology that surrounds victims of sexualized violence adversely impacts their credibility and extends narratives about male entitlement to vulnerable bodies. The recent cases involving R. Kelly and Cyntoia Brown illustrate these points. In the case of singer, song writer Kelly, his videotaping sex with an underaged black female resulted in an acquittal.
Monday, August 19, 2019
Tuesday, August 13, 2019
Rutgers Law Professor Stacy Hawkins writes how President Donald Trump is quietly whitewashing the federal judiciary with dangerous consequences for the justice system and democracy. Below is the introduction to her article, Trump's Dangerous Judicial Legacy, 67 UCLA L. Rev. Disc. (2019)
As much attention has been focused on scrutinizing President Trump’s two appointments to the United States Supreme Court, a more pervasive and insidious effort by President Trump to remake the federal judiciary has gone relatively unchallenged. Our collective obsession with the nation’s highest court and its shifting ideological balance since the retirement of longtime moderate Justice Anthony Kennedy, while important, has allowed a less notable but no less important shift to occur in the judiciary as a result of Trump’s record-setting pace of appointments to the lower federal courts. Aside from their obvious politics, most of Trump’s judicial appointees share something else in common—they are almost all white and largely male. This is no mere coincidence. It is a seemingly deliberate attempt to undo decades of diversity progress on the federal judiciary made over the course of multiple, successive presidential administrations across both political parties.
For all the handwringing over President Trump’s two appointees to the Supreme Court, the president has quietly appointed more judges to the federal appeals courts in his first two years in office than any other president in history. Given that so few cases will ever be heard by the Supreme Court, these courts often represent the highest level of appeal in our federal judicial system. In addition to being prolific, there is a striking pattern to Trump’s judicial appointees. He has broken with a decades-long presidential tradition of making the judiciary more demographically diverse than one’s political predecessor. Instead, Trump has appointed fewer minority judges to the federal bench than any president since Ronald Reagan and fewer women judges than any president since George H.W. Bush. For the first time in nearly three decades, the federal bench has actually become appreciably less diverse, even as the nation has continued to experience rapid growth in its demographic diversity. The truculence about America’s growing cultural pluralism that is reflected in Trump’s federal judicial appointments is resonant with a central theme of his now (in)famous campaign promise. Notwithstanding the facile appeal to patriotism, there is considerable proof that what Trump really aims to do is not “Make America Great Again” so much as “Make America White Again.” At least insofar as his efforts to remake the judiciary are concerned, this “whitewashing” has grave consequences for the judiciary itself and arguably for our democracy more broadly.
Trump’s record-setting pace of federal judicial appointments have shifted the demography of the judiciary from one that was becoming increasingly more representative of the people it serves to one that is actively being made less representative of the American people. This Article first highlights this demographic shift in quantifiable terms. It then situates this judicial trend as a part of Trump’s larger political agenda and explores its consequences for the judiciary and for our ideals of democracy more broadly. (internal citations omitted)
Tuesday, August 6, 2019
FRIDAY, FEBRUARY 28, 2020
The student chapter of the American Constitution Society and Law Review at Barry University School of Law and Texas A&M University School of Law are hosting the Fifth Annual Constitutional Law Scholars Forum at the Barry University Dwayne O. Andreas School of Law Campus in Orlando, FL.
The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to editing with a journal. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)
The deadline to submit proposals is December 1, 2019.
Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches. Orlando offers an average temperature of 72-78°F in February/March.
There are no conference fees and meals are provided.
Email proposals to Professor Eang Ngov, firstname.lastname@example.org, with “Constitutional Law Scholars Forum” in the subject line. Submissions should include a short abstract (300 words maximum) and biography (150 words maximum). Please include abstract and biography together on one page in Word format.
Professor Eang Ngov, email@example.com, office (321) 206 -5677, cell phone (571) 643-2691
Professor Meg Penrose, firstname.lastname@example.org
Wednesday, July 24, 2019
In this two-part episode Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, NYU Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation explore the intersection of race and policing in the United States. Our guests explore the history of race relations in the U.S., and the resulting impact on law enforcement practices in Part 1: History, Training Programs, and Police as First Responders and Part 2: Predictive Policing, Funding Priorities, and Working Toward a Solution.
Juvenile Law Center’s Co-Founder Marsha Levick and Columbia Law Professor Elizabeth Scott discuss the vulnerability of children when they enter the justice system. Marsha and Elizabeth agree that much has improved since “adult time for adult crime” in the 1990s – today youth are recognized as developmentally different from adults, and with care, may be more easily rehabilitated. However, they argue that there are still improvements to be made, and the problems become obvious when you look at statistics comparing the race of children entering the system.
Death penalty expert and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice Brandon Garrett of Duke Law School talks about the history of the death penalty in the U.S. criminal justice system, revealing details of his data collection on capital punishment. The episode also features ALI’s past President Roberta Cooper Ramo and Retired Judge Christine Durham, who discuss ALI’s removal of the Death Penalty Provision from the Model Penal Code in 2009, perhaps one of the earliest indications of the future of capital punishment.
Renowned experts on American Indian law and policy, Matthew Fletcher of Michigan State University College of Law and Wenona Singel of the Office of the Governor for the State of Michigan, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens.
Friday, July 12, 2019
Randall Abate, Rechnitz Family Endowed Chair in Marine and Environmental Law and Policy and a Professor in the Department of Political Science and Sociology at Monmouth University, has a forthcoming book, Climate Change and the Voiceless: Protecting Future Generations, Wildlife and Natural Resources (Cambridge). He looks at the voiceless as "the most vulnerable and least equipped populations to protect themselves from the impacts of global climate change." Abate explains how domestic and international laws have not accounted for climate change and climate justice. This work builds on his earlier books, Climate Justice: Case Studies in Global and Regional Governance Challenges, which I had contributed a chapter, as well as Climate Change Impacts on Ocean and Coastal Law and Climate Change and Indigenous Peoples: The Search for Legal Remedies, co-edited with Elizabeth Kronk-Warner.
On his blog, Climate Change(d), he writes about the growing threat of climate change on vulnerable communities.
When I started writing and teaching about climate change law and justice shortly after the turn of this century, climate change still seemed like a distant threat, but one that was close enough for vulnerable communities to fear as an imminent peril. Nowadays, whatever I do and wherever I travel, the fingerprints of climate change are evident, and the threat is much more imminent and widespread. It is no longer limited to vulnerable and impoverished communities – the affluent are no longer immune. The affluent are more protected and less in harm’s way than vulnerable communities, but it is now increasingly clear that we share a common vulnerability to climate change in the coming decades of this century in our shared status as Earthlings.
I enjoyed an excellent piece of creative nonfiction that was a useful complement to my thinking and engagement on this trip. In her book, Rising: Dispatches from the New American Shore, Elizabeth Rush compellingly portrays the stories of communities confronting sea level rise in the U.S. from Staten Island to Louisiana. Her accounts from the front lines of these affected communities portray desperation, courage, and resilience in the face of these scientific realities and existential threats from sea level rise and its impact on what these communities had called home for generations.
One quote from the book resonated with me to help underscore the tenor of my reflections in the previous paragraph regarding the ubiquitous threat of climate change: “[T]he environmental apocalypse we often think of as existing only in films is already with us. The lines between our imagined futures and present tense grow increasingly blurry with every passing day.”
In 2004, we needed a jarring and fictional account to open our eyes to the daunting threats of climate change in the form of the Hollywood blockbuster movie, The Day After Tomorrow. Just fifteen years later, we are now living in and seeking to adapt to that scary, seemingly fictional new normal in our daily lives.
Thursday, July 4, 2019
At the first Democratic presidential debate, the sharp exchange between Joe Biden and Kamala Harris hit home for me. Harris’s poignant story about being bused when she was a child, along with her rebuke of Biden’s opposition to “forced busing”, resonated widely and powerfully. Like Harris, I lived through busing—a long forgotten chapter in the history of school desegregation. My schooling experience was defined by the metropolitan busing remedy in New Castle County, Delaware—“deseg” as many called it—which was one of the most comprehensive school desegregation plans in the entire country . Joe Biden was my Senator—someone I admire and who has helped my family, friends, and many others from Delaware. He developed his views on busing largely through the charged debate on deseg in our home state. 
Biden has been roundly criticized for his position, and there is a valid basis for this criticism. He collaborated closely with segregationist Senators, along with White anti-busing activists in Delaware, giving these groups some legitimacy . He opposed busing remedies for de facto segregation but did not consider housing and education policies that led to such segregation . When articulating his support for local control of busing during the debate, Biden overlooked how such local control has often thwarted desegregation efforts. Moreover, some of his past statements seemed to espouse a moral equivalence between Black and White opponents of busing: he did not call out the latter firmly for their racism. Biden has also appeared muddled and defensive when explaining his record. Although I believe he has had good intentions, his words give the impression that political ambition may have clouded his judgment.
Nevertheless, there is more to busing and to Biden’s position on it. Deseg was complex on many levels—through its politics, its implementation, and its long term effects. My perspective on busing is both academic and personal . Going to school with Black students from inner city Wilmington, Delaware--students who I would not have met otherwise--had a tremendous positive impact on my life. Many of them are my friends to this day. My experiences with busing are the reason I became interested in race and racism, and that I am now a law professor who focuses on those issues.
During and after law school, I also worked closely another well-known critic of busing: the late Professor Derrick Bell . Professor Bell is the most renowned scholar ever on race and law. He was the first tenured Black law professor at Harvard Law School. He is widely known and revered among racial justice advocates for, among other things, leaving his position at Harvard in protest of the Law School’s failure to hire more women of color faculty. He is one of the founders of an influential scholarly movement known as Critical Race Theory (CRT). And his pioneering writings in CRT disapproved of the civil rights establishment’s unabashed support for school integration. 
Professor Bell has been ignored in the recent conversation about busing, but his perspective reminds us that while busing may not have been the “liberal train wreck” that Biden described , it was not a liberal panacea either. Professor Bell wrote that he would have actually dissented in Brown v. Board of Education, focusing on equality of schools instead of integration itself . His motivation, of course, was very different from that of segregationists. He felt that integration and busing had become mere symbolic issues, and that civil rights advocates did not always prioritize the best interests of Black children. In as much as he opposed busing, Professor Bell was concerned about Black children being thrown under the bus. 
Professor Bell laid this out in his groundbreaking 1976 Yale Law Journal article, Serving Two Masters. Here, he discussed his experience meeting with Black community representatives and NAACP lawyers in 1975, as they planned the second phase of Boston’s school desegregation effort. The first phase, in the previous year, was met with violent incidents and garnered national attention. Professor Bell recounted how the Black representatives were ambivalent about busing. They wanted to continue the progress in civil rights, but they also wanted more emphasis on schools’ educational quality, and they feared sending their children to some of Boston’s more violent White neighborhoods. 
From this and other experiences, Professor Bell came to believe that a singular focus on integration was misguided, and that the goal should be equal educational opportunity for all Black children. Professor Bell acknowledged that equal opportunity could come about through integrated schools, but not always. As stated in Serving Two Masters:
"The busing issue has served to make concrete what many parents long have sensed and what new research has suggested: court orders mandating racial balance may be (depending on the circumstances) advantageous, irrelevant, or even disadvantageous." 
At the time, Professor Bell was criticized by the civil rights community for his views, but he is now widely admired for his courage.
Professor Bell’s admonition resonated when deseg was implemented in Delaware. Busing was great for me personally, but it was more complicated for my Black friends from Wilmington. They were bused to the suburbs in New Castle County for 9 years out of 12, while those of us in the suburbs were only bused to the inner city for three years. Those bus rides were thirty minutes long each way. Busing and other efforts towards integration almost always put a greater burden on people of color, and Black parents and children in Wilmington lived this burden. Professor Jeffrey Raffel, who has studied Delaware desegregation extensively, reported that before deseg was implemented in 1978, Black parents in Wilmington were almost evenly split on the issue of busing. In his initial survey, slightly more of these parents actually opposed busing than supported it, and more than three times as many “strongly” opposed it as “strongly” supported it. Attitudes towards busing became more positive as these parents learned more about desegregation, but there were still significant misgivings. A majority of Black parents surveyed had real concerns about safety, convenience, and opportunity to be involved in their children’s school activities. 
Biden was aware of Black parents’ concerns with busing. He had a good relationship with the Black community in Wilmington, and in his 1975 National Public Radio (NPR) interview, Biden noted that he spent almost 300 hours studying the issue and speaking with Black and White people in Delaware before coming to his anti-busing position . Many years later, in his autobiography, Biden echoed some of the concerns that Raffel had reported in his survey:
"[B]lack parents were terrified that their children would be targets of violence in suburban schools. [Busing] also meant that a parent-teacher conference could cost them a half day of work. And what if there was an emergency? A lot of people in inner-city Wilmington didn’t have cars, and there was no reliable public transportation." 
These were real, lived dilemmas. One of my friends from Wilmington, Joni, told me that although her busing experience was positive, her mother hated busing precisely because she did not have a car and could not conveniently get to her children’s schools. Because of this, Joni’s mother was reluctant to allow her to participate in after-school activities. Although her mother eventually relented, this concern became particularly salient one day, when Joni was injured during a field hockey game and had to be taken to the hospital. Joni also lamented the fact that her family could not attend her athletic events and other school activities; and that busing precluded her from going to after-school social events and study groups at her suburban friends’ homes. Thus, while deseg opened up opportunities in the long term, it also closed off others in the short term—particularly opportunities for Black parents to be involved in their children’s schooling.
Beyond such challenges, Biden—like Professor Bell—expressed concern for educational equality. In his Senate floor statement against busing on September 17, 1975, Biden contended that “[busing] obfuscates the real issue today which is whether or not there is equal opportunity within the educational field for all people[.]” He reiterated twice that “equal opportunity in education” and “better educational opportunity for blacks and minority groups” should be the priority. Indeed, if Serving Two Masters had not been published until a year later, one might even think that Biden read parts of it on the Senate floor. 
Biden’s stances illustrate the intricate politics of busing. The debate over deseg in Delaware was not a simply one between civil rights advocates and anti-busing racists. Professor Brett Gadsden describes the opposition to busing as:
"[A] variation of Derrick Bell’s theory of interest convergence in which black activists and educational reformers … found common cause—directly or indirectly—with white public officials who wanted to perpetuate racial segregation or temper the impact of desegregation mandates." 
Professor Gadsden notes that part of this milieu was “an unexplored, if implicit, meeting of the minds” between Black activists and “white liberals like Biden.” And although Biden—through his work with both White anti-busing activists and Black community activists—was "serving two masters", I believe he truly felt that busing would hurt Black children and their parents more than it would help them, and that he would not have opposed it otherwise.
There are many different stories of deseg: positive, negative, and ambivalent. Several of my friends from Wilmington told me that busing was an enlightening experience. It exposed them to different people, perspectives, and possibilities. Others did not view it as positively. My friend Taquan was part of the first cohort of Black students bused from Wilmington to the suburbs, back in 1978. Many years later, in a 1991 article in the Wilmington News Journal, Taquan recounted his feelings: “When shipped – excuse me, bused – I noticed a change. My academic prowess began to decay.” Taquan felt that his White teachers after deseg challenged his abilities, whereas his Black teachers prior to deseg had actually cared about teaching him. “We were in school, not a boxing match[,]” he stated pointedly . But when I spoke with him recently, Taquan also noted that his experience in Wilmington, Delaware may have been different from Kamala Harris’s experience in Berkeley, California.
Black parents had to weigh all of this complexity when thinking about busing. In spite of their concerns, Professor Raffel’s survey indicated that most Black parents in Wilmington thought that deseg would “provide a better education for most black students” . Professor Bell notes that Black parents often discerned that “green follows White”: they believed that “whites would never give black schools a fair share” and that integrated schooling was the only means to a quality education . Many of these parents also saw deseg itself as an advance in the struggle. Biden recounts that his Black constituency “was afraid that if they really back off busing, it will be taken as a signal … [of] … backing off on racial progress” . Although it is debated, many social scientists do believe that busing and desegregation generally had a positive impact on the academic achievement of Black students . And some of my friends noted that while they did not like riding the buses at the time, they are now grateful for the experiences that deseg provided.
Although it was difficult back then, the benefits of school desegregation, for me, for my friends, and for society generally, resonate many years later. Ultimately, this is why I disagree with my former home state Senator. I think busing was necessary in the broader struggle for racial justice, and that federal courts had to order forceful desegregation remedies to make it happen. I am proud that I rode the buses in Delaware and was a small part of that struggle. But Professor Bell taught us many important lessons, and he continues to do so. We should not lose sight of the paradox of busing. Its gains came through the many sacrifices that Black children and parents made, sometimes unwillingly, to make America better for all of us.
 See Jeffrey Raffel, The Politics of School Desegregation: The Metropolitan Remedy in Delaware (1980).
 See Brett Gadsden, Between North and South: Delaware, Desegregation, and the Myth of American Sectionalism 1-3 (2013).
 See David A. Love, Why Joe Biden is Wrong, Al Jazeera, July 4, 2019. Nevertheless, Biden's position on busing did not please the Positive Action Committee (PAC), Delaware's most prominent anti-busing organization. According to Professor Raffel, PAC President James Venema "constantly attacked Biden's position." In 1978, the year that deseg was implemented in Delaware, Venema decided to run for Biden's Senate seat. See Raffel, supra note 1, at 81, 116.
 See Brett Gadsden, Here’s How Deep Joe Biden’s Busing Problem Runs Deep And Why the Democrats Can’t Use It Against Him, Politico, May 5, 2019.
 See Vinay Harpalani, Ambiguity, Ambivalence, and Awakening: A South Asian Becoming “Critically”Aware of Race in America, 11 Berkeley Journal of African-American Law & Policy 71 (2009).
 For more on my connection to Professor Bell, see Vinay Harpalani, “Gifted with a Second-Sight”: Professor Derrick Bell the Teacher, in Covenant Keeper: Derrick Bell’s Enduring Education Legacy 17 (Gloria J. Ladson-Billings & William F. Tate eds., 2016).
 For more on Professor Bell’s life and work, see Derrick Bell Official Website.
 Joe Biden, Promises to Keep 125 (2008).
 See Derrick Bell, Bell, J., dissenting, in What Brown v. Board of Education Should Have Said 125 (Jack M. Balkin, ed.) (2001)
 See Neither Separate Nor Mixed Schools: The Chronicle of the Sacrificed Black School Children, Chapter 4 of Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 102 (1987).
 See Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale Law Journal 470, 482 (1976).
 Id. at 480.
 See Raffel, supra note 1, at 28-32. Also, in February 1978, the New York Times reported that "if busing were put to a vote in the black community [in Wilmington], it would be voted down." The NYT report was based on an interview with Charles Grandison, who was a Black aide to Wilmington Mayor William McLaughlin. Grandison also opined that "[t]he blacks won the case ... but they still think they're getting shafted." See Steven V. Roberts, Leaders of Wilmington, Del., Seek Smooth Start of Busing, N.Y. Times, Feb. 2, 1978, at A16.
 See Alana Goodman, Joe Biden embraced segregation in 1975, claiming it was a matter of ‘black pride’, Washington Examiner, Jan. 31, 2019. The online version of this article also contains an embedded version of the 1975 NPR interview. In the same interview, Biden used the language of “black pride” and “black is beautiful.” He likely garnered these ideas from individuals involved in the Black Power movement, further illustrating his connection to the Black community.
 See Biden, supra note 8, at 125.
 121 Congressional Record S29103 (daily ed. Sept. 17, 1975) (statement of Sen. Joseph R. Biden).
 See Gadsden, supra note 2, at 19 (citing Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harvard Law Review 523 (1979). Here, Professor Bell provides another informative insight. “Interest-convergence” refers to the aligning of groups who would seemingly be opposed, due to a common interest. In this case, anti-busing racists and Black activists who emphasized community control had their interests aligned, all in the effort to oppose busing.
 Taquan Stewart (as told to Rhonda Graham), For one, deseg was a dissatisfying challenge, Sunday News Journal (Wilmington, DE), July 28, 1991 at L1, L3.
 See Raffel, supra note 1, at 30.
 See Bell, supra note 10, at 104.
 See Biden, supra note 8, at 126.
 See, e.g., Rucker C. Johnson, Children of the Dream: Why School Integration Works (2019).
I appreciate Taquan Stewart, Joni Kurylo, Jon Jervey, Shane Riley, and Melanie Prince for sharing with me some of their experiences with busing in Delaware. Turquoise Young also gave helpful feedback on this post.