Saturday, February 29, 2020

ClassCrits 2020 @ Thurgood Marshall School of Law!

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Save the Date, Call for Papers & Participation:

ClassCrits XIII: Unlocking Equality: Revisiting the Intersection of Race and Class

Co-Sponsored by ClassCrits, Inc. & Thurgood Marshall School of Law

November 6-7, 2020, @Thurgood Marshall School of Law, Houston, Texas

Deadline for proposals: June 1, 2020

For more details, visit ClassCrits website at www.classcrits.org

 

 

February 29, 2020 | Permalink | Comments (0)

Friday, February 28, 2020

Upcoming Conference: Immigration, Equal Protection, and the Promise of Racial Justice

Jean v Nelson at 35.html
Little Haiti neighborhood of Miami, February 7, 1986. Photo copyright Gary Monroe.

 The Legacy of Jean v. Nelson

April 3, 2020
NYU School of Law

The year 2020 marks the 35th Anniversary of Justice Thurgood Marshall's groundbreaking dissent in Jean v. Nelson, wherein Justice Marshall called for equal protection to apply to Haitian immigrants, and to prohibit the government from discriminating on the basis of race or national origin.

The NAACP Legal Defense and Educational Fund, Inc., the Center on Race, Inequality, and the Law, and the Center for Human Rights and Global Justice at NYU School of Law are pleased to present a legal conference exploring the intersection of immigration and racial justice. Register here

This full day conference will be held Friday, April 3 at NYU School of Law.

The conference will begin with a discussion of Jean v. Nelson and the struggle to secure racial justice for Haitian asylum seekers in the 1980s.

The conference will then explore subsequent efforts by advocates, academics, policymakers, and activists to vindicate the promise of equal protection for immigrants of color in the United States and internationally.

Agenda

9:00 a.m. – 9:15 a.m.
Welcome

Trevor W. Morrison, Dean, NYU School of Law

Vincent Southerland, Executive Director, Center on Race, Inequality, and the Law

Natasha Merle, Senior Counsel, The NAACP Legal Defense and Educational Fund, Inc.


9:15 a.m. – 10:30 a.m.
Panel 1

Discrimination and Dissent: The Legacy of Jean v. Nelson

The year 2020 marks the 35th anniversary of Justice Marshall’s pioneering dissent in Jean, wherein he sought to extend the guarantee of equal protection to Haitian asylum seekers detained around the United States.  The opening panel will reflect on Jean, examine how it heralded and influenced contemporary efforts to secure racial justice for Haitian immigrants through litigation, and discuss the deleterious impact that the United States’s immigration policies have had upon Haitian immigrants over the decades.  The panel will feature Dean Emeritus Richard L. Revesz, who, as one of Justice Marshall’s law clerks, helped to draft the dissent in Jean; Ira Kurzban, who represented the petitioners before the Court; Muzaffar Chishti, the former Secretary-Treasurer of the National Coalition for Haitian Refugees; and Ninaj Raoul, a Haitian activist who has long worked with Haitian immigrants around the country. 

Panelists

  • Ira Kurzban, Attorney and Partner, Kurzban, Kurzban, Weinger, Tetzeli, & Pratt P.A.  

  • Richard L. Revesz, Dean Emeritus, NYU School of Law 

  • Ninaj Raoul, Founder and Executive Director, Haitian Women for Haitian Refugees

  • Muzaffar Chishti, Director, Migration Policy Institute’s Office at NYU School of Law

  • Moderator: Raymond Audain, Senior Counsel, The NAACP Legal Defense and Educational Fund, Inc.


10:45 a.m. – 11:55 a.m.
Panel 2

Racial Injustice in the Era of Trump: Immigration and the Courts

For Justice Marshall, it was incumbent on the Court to dispel the legal fiction that the petitioners were beyond the reach of the Constitution. For him, that same insidious fiction supported the myth that “freed slaves were not ‘people of the United States.’” Although the Jean majority failed to address this issue, the Trump administration’s racialized immigration policies —including its efforts to revoke DACA, DED, and TPS—are forcing courts to grapple with it anew. Its policies are also forcing lawyers to employ new litigation strategies to combat the administration’s overt attacks against immigrants of color. This panel will bring together lawyers litigating the various DACA, DED and TPS cases around the country to discuss the state of the court struggle for racial justice in immigration. 

Panelists


12:00 p.m. – 2:00 p.m.
Lunch Keynote

Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc, in conversation with Kevin Johnson, Dean, UC Davis School of Law

Moderator: Gemma Solimene, Clinical Associate Professor of Law, Fordham University School of Law


2:15 p.m. – 3:30 p.m.
Panel 3

The State of Immigrant Communities of Color: Racial Injustice and Community Organizing

In many respects, Jean demonstrates the limits of litigation to secure racial justice for immigrants of color. Throughout history, activists and community organizations have enabled social change, working alongside lawyers to address racial injustice in immigration. This remains true today, as the administration’s policies continue to exacerbate the racial harms experienced by immigrant communities of color. This panel will explore the state of the struggle from a community perspective, and discuss effective strategies for lawyers to provide greater support to immigrant communities.

Panelists

  • Marleine Bastien, Executive Director, Haitian Women of Miami, Inc.

  • Gregoria Flores, Executive Director, Garifuna Community Services with New York Mennonite Immigration Program

  • Nana Gyamfi, Executive Director, Black Alliance for Just Immigration (BAJI)

  • Amaha Kassa, Founder and Executive Director, African Communities Together (ACT)

  • Moderator: Alina Das, Professor of Clinical Law, NYU School of Law


3:45 p.m. – 5:15 p.m.
Concluding Keynote

Racial Borders

E. Tendayi Achiume, UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance and Professor of Law, UCLA School of Law

Introduction: Sarah Hamilton-JiangResearch Scholar, Center on Race, Inequality, and the Law 


5:15 p.m. – 5:30 p.m.
Closing Remarks

Sarah Hamilton-JiangResearch Scholar, Center on Race, Inequality, and the Law 

Ellie Happel, Staff Attorney, Global Justice Clinic at NYU School of Law

February 28, 2020 | Permalink | Comments (0)

Friday, February 21, 2020

2020 Poverty Law Conference

Untitled-drawing

UPDATE: Due to the Corona Virus, the conference has been canceled.

The program is available for the 2020 Poverty Law conference, happening April 10-11, 2020, at University of California Berkeley School of Law. The theme of the conference is Where We Go from Here, which will feature lawyers, scholars, and advocates who, broadly speaking, study the relationship between law and socio-economic marginality. Sessions include a number of topics that intersect with race and minority communities, including Welfare Theory, Tax, Family & Children, Health, Legal Services, Housing, Incarceration, among others. For more information, visit Poverty Law Conference.

February 21, 2020 | Permalink | Comments (0)

Friday, February 14, 2020

New Article by Professor Suja Thomas - The Customer Caste: Lawful Discrimination by Public Businesses

Suja A. Thomas, Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law, has posted The Customer Caste: Lawful Discrimination by Public Businesses.  Here is the abstract:

It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.

February 14, 2020 | Permalink | Comments (0)

Thursday, February 13, 2020

Teaching Torts with a Focus on Race and Racism – by Professor Jennifer Wriggins, Sumner T. Bernstein Professor of Law, University of Maine School of Law

Overt racism is unquestionably on the rise in the U.S.   Scholars and leaders are calling for a reckoning of US racial history that has not yet happened. [1]  Part of this reckoning involves thinking and learning – and teaching – about how different areas of law relate to race and racism, both historically and now.  This kind of inquiry is essential for gaining a thorough understanding of whatever area of law is being examined – as well as being important for many other reasons.

Torts is a required first year law course, and scholarship such as mine and others’ illuminates the relationship between race, racism, and torts. [2]  Casebooks now sometimes touch on issues of race and racism in torts and include some cases that raise issues of race.  But there is much more to do.   It’s important that law students graduate knowing something about how the torts system dealt with race and injuries to African-Americans. [3]  The story is complicated and still being uncovered.   Issues of race and racism belong in Torts courses, not just in Constitutional Law, Criminal Law, and ‘Race and the Law’  courses. 

A few areas merit attention.  I’ll touch on three.  First I suggest a few cases that I encourage professors to include in their courses and casebooks.  Second, I discuss liability insurance, race and torts, casting the famous chair-pulling case of Garrett v. Dailey in a new light.  And third, I outline two important points about the torts system and African-Americans: it utterly failed to deter or compensate for lynching, and second, African-Americans brought and won tort cases starting at the end of slavery but the compensation they received was much less than the compensation whites received.    

First, I suggest several cases for possible inclusion in torts courses.  One is Gulf v. Luther, 90 S.W. 44 (Tex. Civ. App. 1905), involving an interaction between an African-American woman employee of a railway  and a white woman in a white women’s railway waiting room which resulted in a judgment against the train company.  Doctrinally, the case is an early precursor of the Intentional Infliction of Emotional Distress tort; common carriers like railways were liable for insults to travelers by their employees even in situations where there was no battery or assault.  Torts casebooks and cases often discuss the common carrier precursors to the independent Intentional Infliction of Emotional Distress tort.   State Rubbish Collectors Association v. Siliznoff, 250 P.2d 282 (1952), the foundational case for the Intentional Infliction tort, is an example.   Race and gender play critical roles in Gulf v. Luther, illustrating the importance of the context and power dynamics to the injury in powerful ways.  The court’s language in referring to the white woman ‘victim’ and the African-American woman employee demonstrates how much race and gender matter to the social construction and recognition of the injury.  The case recognizes a racialized harm and underscores racial hierarchy which is disturbing but not the least bit surprising.  

Bullock v. Tamiami Trails Tours, 266 F.3d 326 (5th Cir. 1959), involving a white bus passenger’s assault on an apparently interracial couple, belongs in materials about negligence.   In this case the Fifth Circuit, through its analysis of duty and foreseeability, challenged racial and gender hierarchies.  A white bus passenger attacked the married couple sitting in the front of the bus soon after interstate buses were desegregated.  Per the Court, the husband “was dark or black, while the wife, though a Negress, appeared to be a white woman.” 266 F. 2d. at 332.  When the couple sued, the bus company claimed it was not liable for a fellow passenger’s attack although it would have been liable if the attack had been by one of its employees.  The Court, reversing a trial court’s ruling in favor of the company, provided an instructive discussion of duty and foreseeability of risk in the context of bus desegregation in Florida.  The decision holding the company liable for a racially motivated attack put interstate bus companies throughout the South on notice of their duty to protect all passengers, a duty that tort law would enforce through money judgments for damages.   It undermined racial hierarchy, in stark contrast to Gulf v. Luther, although in a somewhat equivocal way, as students discover.  Both decisions feature rich narratives about race and are compelling examples of how context shapes concepts like foreseeability and injury in torts.  Both cases have pedagogic value in terms of tort doctrine.  They also illustrate how torts and race intersect. 

Second, liability insurance.  Access to liability insurance equals access to the tort system.  When plaintiffs in the tort system receive money for damages, the money generally comes out of a defendant’s liability insurance policy, rather than out of the defendant’s pocket.  Liability insurance also pays the bills for defense and plaintiff lawyers-either directly (defense lawyers) or indirectly (plaintiffs’ lawyers).  Torts casebooks have begun to emphasize the significance of liability insurance.  But they generally leave out how unequally liability insurance has been distributed.  It has been unequally distributed by race – as a result at least in part of deliberate racism by institutions, individuals, and governments—in several different ways.  One way is that after World War II, the GI bill gave valuable benefits and low-cost home loans to returning white GIs while in practice denying benefits and home loans to African-American returning GIs.  Homes purchased with the help of the GI bill had to have liability insurance.  Thus, as housing was unequally distributed by race, so was liability insurance [4]  A second way is that insurance companies refused to issue policies in urban neighborhoods with large populations of African-Americans; this practice, known as ‘redlining,’ contributed to neighborhoods’ decline. [5]

Garrett v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955) a classic torts case, looks a bit different with this background. Ruth Garrett sued a five-year-old boy, Brian Dailey, for injuries she received when he pulled a chair out from under her as she was starting to sit down.  Generations of law students ponder the intent Brian did or did not have.  Ruth Garrett won $11,000 (about $105,474 in today’s dollars) for a  fractured hip and serious injuries.   Brian, of course, did not have the money to pay  $11,000 for the injuries he caused.  But as a resident of his parents’ home, he was an ‘insured’ under their homeowners policy, one casebook tells us.  Thus, Ruth Garrett got the $11,000 compensation for her injuries from Brian’s parents’ homeowners policy. 

But let’s not stop there.  Consider for a moment the same facts and injury if Brian’s parents did not own their house.  If they rented rather than owned, it is very unlikely they would have had renters’ insurance that would cover Brian and the injuries he caused by his chair-pulling.   And with no liability insurance covering Brian, Ruth Garrett would not have been able to find a lawyer, there would have been no lawsuit, and her injury would have gone uncompensated.  The same outcome - no lawsuit - would result if his parents owned a house but had no insurance.  The parents would probably not be liable for Brian’s actions.  And even if they were, it would have been difficult or impossible for Ruth Garrett to find a lawyer to pursue the case unless Brian’s parents were very wealthy and had collectible assets.   Liability insurance has a central place in torts regardless of the race of the participants, but distribution of liability insurance – and the extent to which plaintiffs are compensated - has been influenced by race and racism.

Finally, two broad points about the torts system need to be made.  First, the torts system is part of the white racist legal system that utterly failed to deter or compensate for lynching and many other injuries suffered by African-Americans.  Although at least 4743 people were lynched between 1882 and 1968, [6] civil lawsuits seeking compensation for lynching were extremely rare. [7]  Second, African-Americans started filing and winning tort cases as soon as slavery ended, usually against large defendants like railroads, but their compensation tended to be much less than that of whites.   Structural features of the torts system made access to the legal system possible for African-American plaintiffs but also made devaluation of their injuries inevitable.   Lawyers (who would have been all white and male, very likely) represented them using contingent fee agreements, and juries and judges (also all white and male, very likely) sometimes decided in their favor.  And yet, injuries to African-Americans mattered less to decision-makers in the legal system; one of the reasons we know this is that damages awarded were generally much less.  Damages is taught in every torts course and presents a fine opportunity, with well-developed scholarship, for classroom discussion.  Torts professors often talk about how subjective damages are in torts;  racist devaluing of damages to African-Americans could and should be part of that subject.  Published cases and legal scholarship make this very doable.  See, e.g., The Saginaw and the Hamilton, 139 F. 906 (S.D.N.Y. 1905), GMM v. Kimpson, 92 F. Supp.3d. 53 (E.D.N.Y. 2015), CHAMALLAS & WRIGGINS, The Measure of Injury 155-170, sources cited in note 2.

Conclusion

Racism is becoming stronger in the U.S., despite the long struggles for racial justice in the U.S. and despite the fact that it is so deeply wrong.  Our country has not completely addressed the history of race and racism in law.  And this definitely is true in the teaching of tort law.  Now is the time to make a serious start on this essential project. 

 

Notes:

[1]  See e.g., Sherrilyn Ifill, Loretta Lynch, Bryan Stevenson, Anthony C. Thompson, A Perilous Path: Talking Race, Inequality, and the Law (2018), Sherrilyn Ifill, On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century (2007).

[2]  See e.g., MARTHA CHAMALLAS & JENNIFER WRIGGINS, THE MEASURE OF INJURY: RACE, GENDER, AND TORT LAW (2010), Jennifer Wriggins, Constitution Day Lecture: Constitutional Law and Tort Law: Injury, Race, Gender, and Equal Protection, 63 Maine L. Rev. 263 (2010), Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L.  J. 99 (2005), Jennifer Wriggins, Damages in Tort Litigation: Thoughts on Race and Remedies 1865-2007, 27 Review of Litigation 37 (2007),  Jennifer Wriggins, Toward a Feminist Revision of Torts, 13 Amer. U. J. of Gender, Soc. Pol’y & Law 139 (2005), Camille A. Nelson, Considering Tortious Racism, 9 DePaul Jnl. of Health Care Law (2005), Alberto Bernabe,  Do Black Lives Matter?  Race as a Measure of Injury in Tort Law, 18 The Scholar: St. Mary’s Law Review on Race and Social Justice (2015), Donald G. Gifford & Brian Jones, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income, Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. 557 (2016), Ronen Avraham & Kimberly Yuracko, Torts & Discrimination, 78 Ohio St. L. J. 3 (2017), Ronen Avraham & Kimberly Yuracko, Valuing Black Lives:  A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Ca. L. Rev. 328 (2018).

 

[3]  The focus of this piece, and most scholarship in the area, is on tort law and African-Americans, which does not comprise the whole picture of the role of race in tort law.  Hopefully further research can expand the lens further and also increase understanding of class as well. 

[4]  See, e.g., www.History.com/news/gi-bill-black-wwii-veterans-benefits (visited Feb. 10,2020), KENNETH ABRAHAM, THE LIABILITY CENTURY 177 (2008).

[5]  For brief discussion of lack of insurance in urban areas and reforms to deal with access issues, see Jennifer Wriggins, In Deep: Dilemmas of Federal Flood Insurance Reform, 6 U.C. Irvine L. Rev. 1443, 1457-1458 (2015).

[6]  RANDALL KENNEDY, RACE, CRIME, AND THE LAW, 47-49 (1997). 

[7]  See e.g., James Harmon Chadbourn, Lynching and the Law, 78-80, 119 (1933). 

© Jennifer Wriggins 2020

February 13, 2020 | Permalink | Comments (0)

Tuesday, February 11, 2020

Immigration prison isn't the answer, TEDxMileHigh by César Cuauhtémoc García Hernández

Every year, with the support of Republicans & Democrats alike, half a million people are locked up in prisons & detention centers while the government decides if they'll be allowed to stay in the United States. How did we get here? Believe it or not, immigration hasn't always worked this way. Law professor César Cuauhtémoc García Hernández explains how & why we can do better. César Cuauhtémoc García Hernández is a law professor at the University of Denver and the author of two books: Crimmigration Law and Migrating to Prison: America's Obsession with Locking Up Immigrants. His op-eds have appeared in The New York Times, The Guardian, and Newsweek, and he publishes crimmigration.com, a blog about criminal & immigration law. He was a Fulbright scholar in Slovenia and is a member of the American Bar Association Commission on Immigration. César was born & raised in McAllen, Texas, and is a graduate of Brown University and Boston College. (Source: TEDxMileHigh)

February 11, 2020 | Permalink | Comments (0)

Monday, February 10, 2020

Surveillance, Secular Law and Reconstruction of Islam

 

Sadequee, Sharmin. Surveillance, Secular Law, and the Reconstruction of Islam in the United States. Surveillance & Society 16(4): 473-487 (2018).

Since the inception of its War on Terror, the United States government has embraced an approach that specifically targets practitioners of Islam. In addition to the broad and formalized profiling of Muslims carried out by legislators, law enforcement agencies, and other state officials, the government has adopted programs that seek to alter certain orthodoxies of Islam that the state suspects of fostering militancy. In effect the state has actively sought to “reform” the practices of Islam from within (Haddad et al. 2004; Haddad and Golson 2007; Mahmood 2006).

Through extensive surveillance activities, preemptive “terrorism” prosecutions, and ideologically oriented “counter-extremism” programs, the US government has made a concerted effort to interfere with the ways in which Muslims practice their faith and experience their lives. Symbols of “excessive Muslimness” have been officially identified as markers of potential criminality, and diasporic Muslim communities in the US have been subjected to widespread state infiltration and monitoring. These efforts are supposedly based on the desire to make the world safer, but a critical examination of state discourses reveals that a particular religious ideology underpins the state surveillance and the broader national security apparatus. I will describe in this paper how the inordinate amount of control, surveillance, and violence inflicted on the American Muslim community is actually grounded in Protestant ideologies incorporated into the law and drives state policies and actions.

Many advocates in the US civil liberties community have been resisting these security practices and what they regard as “unlawful surveillance.” The main argument presented in the civil liberties discourse is that post-9/11 security policies have been applied selectively toward Muslims, violating the rights enshrined in documents such as the US Constitution and the UN’s Universal Declaration of Human Rights (e.g., Cole and Dempsey 2002; Huq 2011; Aziz 2014; Rovner and Theoharis 2012; Akbar 2013, 2015; Torres et al. 2015; Said 2015; Greenberg 2016; Patel and Koushik 2017; Kundnani 2014; Kundnani and Kumar 2015).

While some claim the state has racialized and excluded Muslims throughout US legal history based on Orientalism (Beydoun 2013, 2015, 2016a, 2016b, 2018), the prevalent view is that a lack of respect for individual rights is the fundamental basis and problem of the surveillance state. Primarily oriented toward analyzing new legislation, constitutional violations, and law enforcement strategies, this discourse maintains that re-instituting the pre-9/11 constitutional and human rights standards would end the unnecessary violations of rights. A closer examination of this discourse, however, shows that it does not fully address the reality of how surveillance and securitized measures have been enacted by the state using “lawful” means throughout US history based on the law’s definition of “religion.” The civil liberties attempt to restore earlier standards of US law does not provide a robust opposition against such longstanding legal and religious prejudice.

As I discuss in more detail below, the organized suspicion and surveillance of non-Protestant religions has been established in secular law and governance ever since the foundation of the modern Western state in seventeenth-century Europe. The control of religions and the state-sanctioned demarcation between “good” and “bad” religion have been a historically entrenched and consistent aspect of modern law and political systems in the West (Sullivan et al. 2011; Massad 2015; Asad 2003; Agrama 2012; Mahmood 2015; Hurd 2015).

While the control of religion and religious expressions is an aspect of many different societies worldwide, both current and historical, it needs to be clearly emphasized here in the US due to the normative claim of secular law as being separated from religion and the modern state’s conceits of “neutrality.”

To read the full article, click Download Surveillance Secular Law & Reconstruction of Islam in US (2018)

 

February 10, 2020 | Permalink | Comments (0)