Wednesday, March 31, 2021
Professor Tristin Green of the University of San Francisco School School of Law has posted I'll See You at Work: Spatial Features and Discrimination, which will be published in the UC Davis Law Review in Fall 2021. Below is the abstract, and the full article is available right here:
We increasingly talk about HR practices and work cultures as mechanisms for discrimination in work with nary a thought given to one of the most obvious influences on our daily work lives: where we work. This article seeks to change that. In it, I delineate spatial features as a condition of discrimination in workplaces and develop an understanding of what spatial features might matter and why. Drawing together some seemingly disparate lines of research and literature—from social psychology and sociology to geographies and urban planning—I theorize three specific spatial feature categories: insularity, precarity, and permeability. Each of these categories is about place as it affects our interactions and our expectations around interactions in our work.
The Article also examines the law’s current stance toward spatial features, segregation, and discrimination. It turns out that we are at an important crossroad: Where once spatial segregation was an obvious form of discrimination, today courts are backpedaling. Segregation is downplayed as evidence of discrimination, and spatial features are often either ignored entirely or siphoned off into individualized allegations, where they are treated as passing, innocuous moments of subjective experience rather than as organization-driven causal contributors to systemic discrimination. I urge us to put work “place” on our research and advocacy agendas and to consider spatial features and segregation as casual mechanisms for discrimination in legal cases as well. I make several specific recommendations to this end.
Monday, March 29, 2021
Professor Cliff Villa of the University of New Mexico School of Law has just published Remaking Environmental Justice in the Loyola Law Review. Below is the abstract, and the full article is available here: https://digitalrepository.unm.edu/law_facultyscholarship/846/
From movements for civil rights in the 1960s and environmental protection in the 1970s, the environmental justice movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of environmental justice expanded to address concerns for other dimensions of diversity, including gender, culture, and age. Some of this expansion reflected early principles of environmental justice for equity and inclusion in all aspects of environmental protection. However, the expanded scope of environmental justice also reflected deliberate efforts by the U.S. Environmental Protection Agency to move away from what might be seen as programs for affirmative action. A resulting concern for “all people” raises the question of whether “environmental justice” retains any unique meaning today.
In 2020, we saw that “all people” were not affected equally by COVID-19, with disproportionate impacts on blacks, Latinos, and indigenous communities. In 2020, we also saw unabated racism and racial violence, such as the police killings of George Floyd and Breonna Taylor. In 2020, we saw diverse communities, such as Flint, Michigan, continuing to lack necessities such as safe drinking water. And with every next catastrophic fire, flood, hurricane, or drought, we see further evidence of the uneven impacts of climate change. Together, these new and continuing challenges tell us that we still need an “environmental justice” to help focus our attention and resources on the disparate impacts of environmental harm. However, these new and continuing challenges may also tell us that we need to reframe our understanding of environmental justice to ensure better protection for people going forward.
One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha Fineman and subsequent scholars. Starting from recognition that vulnerability is inherent in the human condition, vulnerability theory has already been explored in a variety of contexts, but has yet to be fully investigated as a means for reframing environmental justice for future application. This article urges further consideration of vulnerability theory in the environmental justice context. It specifically proposes a new definition of “environmental justice” to incorporate vulnerability theory in order to assist policymakers and community advocates with identifying the people most at risk from environmental hazards and most in need of attention to protect their health and safety.
Friday, March 26, 2021
Today marks the #StopAsianHate Virtual Day of Action and Healing. The mayor of Dallas, Eric Johnson, proclaimed March 26, 2021 as Stop Asian Hate Day. In the past couple of weeks, everyday people, activists, scholars, celebrities, and companies have filled social media feeds with messages of support for the Asian-American community using the hashtag #StopAsianHate. These posts respond to the horrible March 16th Atlanta shootings where Robert Aaron Long murdered eight people—six of whom were women of Asian descent. The #StopAsianHate hashtag reveals the widespread belief that hate is the cause of racial violence against the Asian-American community. Unfortunately, our collective focus on hate is a severe misunderstanding of the problem of racism in America.
Tuesday, March 23, 2021
The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.
The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.
We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:
- the relationship between federalism and empire;
- the challenge of cultural accommodation within the United States’s constitutional framework;
- the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
- the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
- and the promises and pitfalls of territorial autonomy.
The deadline for submissions is July 15, 2021. For more information, please see our announcement.
Wednesday, March 17, 2021
Earlier this week, I submitted my Essay for Georgia State University Law Review's upcoming symposium, "Social Justice and Racial Equality: What's Next?" My Essay is entitled Racial Triangulation, Interest-Convergence, and the Double-Consciousness of Asian Americans. Sadly, it now coincides with the tragic shootings in Atlanta yesterday, where a gunman killed several Asian Americans. I am working on another piece that is specifically about hate crimes against Asian Americans, but sadly again, that one needs to be updated frequently, including after yesterday.
This Essay integrates Professor Claire Jean Kim’s racial triangulation framework, Professor Derrick Bell’s interest-convergence theory, and W.E.B. Du Bois’s notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, it considers the history of Asian immigration to the U.S., the model minority and perpetual foreigner stereotypes, Asian Americans’ positioning in the affirmative action debate, COVID-19 related hate and bias incidents, and Andrew Yang’s 2020 Democratic presidential candidacy. The Essay examines how racial stereotypes of Asian Americans have emerged through historical cycles of valorization and ostracism, as analyzed through the racial triangulation framework. It analyzes how the political interests of the U.S. government converged with those of educated professionals in Asian countries, leading to changes in immigration policy and the emergence of the model minority stereotype. The Essay considers various ways that Asian Americans have been simultaneously valorized as model minorities and ostracized as perpetual foreigners. It highlights the affirmative action debate, where Asian Americans have been cast as high-achieving victims of race-conscious university admissions policies and pitted against other groups of people of color, culminating with the current Students for Fair Admissions v. Harvard lawsuit. Finally, the Essay focuses on Andrew Yang’s presidential bid—particularly how his navigation of racial stereotypes reflected a double-consciousness that parallels the dilemmas faced by many Black Americans. The Essay concludes by arguing that to build coalitions and work towards racial justice, Asian Americans, Black Americans, and other people of color need to recognize their own double-consciousness and also see how it relates to the double-consciousness experienced by others.
Wednesday, March 3, 2021
As lawyers, we have a special obligation to mitigate inequities
You don’t need to be a lawyer steeped in the nuances of the Equal Protection Clause of the Fourteenth Amendment to understand that last summer’s Black Lives Matter protests highlighted the widespread view that our justice system is not treating people of color equitably. But, as lawyers, we have a special obligation to work to mitigate those inequities. One important method for mitigating the impact of systemic racism is recognizing and challenging implicit bias, a factor heavily contributing to the disproportionality of prosecution and punishment against certain groups.
Implicit Bias in the Criminal Justice System
Every human being has implicit biases. Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (1st ed. 2013). As a result, differences relating to race, culture, economic status, gender, physical appearance, religion, education, or other identifying characteristics affect individuals’ ability to immediately trust someone. This is an evolutionary adaptation of our cognitive functioning because humans once needed to make rapid assessments about whom to trust to ensure survival. Players in the criminal justice system are not immune from these implicit biases, including lawyers, police officers, and jurors. Even judges with a sworn duty of impartiality are affected by implicit bias. See, e.g., Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?,” 84 Notre Dame L. Rev. 1195 (2009).
In America, implicit biases against persons of color have a particularly profound effect on that group of people. Leland Ware, the Louis L. Redding Chair and professor at the University of Delaware’s Biden School of Public Policy and Administration, explained that “there is a centuries- old association of blackness with criminality and violence,” stating that “[d]ecisions about whom to arrest, how much force to use, what charges should be lodged and jury verdicts convicting minority defendants are adversely influenced by bias.” Beth Miller, “Biden Day One: Racial Equity,” UDel.edu (Jan. 20, 2021). Professor Ware added that “[t]his is an urgent matter that needs to be addressed.” Id.
Customs, practices, and norms that have the effect of treating white people and people of color differently are pervasive and often operate without scrutiny. According to Ware, “[m]anifestations of systemic discrimination are so common that they appear to be ‘normal’ and are unnoticed by those not adversely affected.” Id. However, failing to notice or denying our own implicit biases does not help defeat them. In fact, there is evidence that “believing ourselves to be objective puts us at particular risk for behaving in ways that belie our self-conception.” Jerry Kang et al., “Implicit Bias in the Courtroom,” 9 UCLA L. Rev. 1124, 117374 (2012)
Implicit bias training helps reduce bias to some degree. Even lawyers and judges, who are professionally trained to ask questions and second-guess assumptions, benefit from routine bias training. However, Ware cautioned that because stereotypes are “very deeply embedded in the criminal justice system, training can evaporate.” Telephone Interview with Leland Ware, Louis L. Redding Chair for the Study of Law and Public Policy, University of Delaware, Biden School of Public Policy and Administration, Newark, Del. (Jan. 28, 2021). For example, police officers must be retrained repeatedly to effectively reduce the disproportionality of prosecution and punishment in the criminal justice system.
Perhaps of equal importance is our individual motivation to address our own biases and engage in meaningful reflection. SpearIt, a law professor at the Thurgood Marshall School of Law at Texas Southern University, observed that judges and lawyers should consciously reflect on the range of biases that may affect outcomes in their cases. Seminars and workshops focused on implicit bias are just not enough. “For judges and lawyers, one of the keys to cracking implicit bias is to recognize that it happens intersectionally. While bias might be grounded in race, it might not, or it may run concurrent with others, such as indigency,” SpearIt explained. Email Interview with SpearIt, Professor of Law, Texas Southern University, Thurgood Marshall School of Law, Houston, Tex. (Feb. 2, 2021).
A Defense Lawyer’s Tactics for Changing Behavior
Defense lawyers can deploy a few key tactics to mitigate the impact of knee-jerk or biased reactions from a prosecutor during plea negotiations.
1.) Ask questions. People who are called upon to justify their position in response to appropriate and respectful questions are more likely to find themselves reflecting on potential biases. The questions must be nonaccusatory; putting a prosecutor on defense is likely to be counterproductive and harden biases. Helpful questions can include “Can you direct me to the discovery or facts about the case that you find most important in assessing the case?” or “Have you had enough time to consider the equities of the case, or is there more information you need from me to assist you with doing so?”
2.) Humanize your client with small talk. One may hope to immediately evoke empathy by informing the prosecutor about a client’s harrowing experiences. But for prosecutors who had a biased gut reaction, it is possible that hearing about an experience so different from their may increase an inability to relate. A better approach may be to first create deliberate moments for small talk to highlight shared human or American experiences, thus allowing the opportunity for connection.
3.) Evoke surprise or curiosity. When a prosecutor learns a surprising fact about your client or becomes curious about your client’s differing identity, culture, or experience, there is an opportunity for her to gain an empathetic connection with your client. One cannot be curious or surprised about something and at the same time adhere to a bias. Prepare your client to share a specific, personal piece of information that a prosecutor may not expect, or offer to provide further information in a format that the prosecutor would find useful, such as an equities letter or medical records illustrating important context.
Similar tactics may come in handy in criminal litigation filings and in the courtroom. In a conversation with Stephanie Lin, attorney at A New Way of Life Reentry Project (a nonprofit working to mitigate the effects of systemic racism by, among other things, assisting previously incarcerated individuals with expungement and family reunification), Lin explained that when she files expungement petitions, she mentions a client’s children or families in explaining why an expungement or sentence reduction would be in the interests of justice. Mentioning a client’s caretaking responsibilities and familial ties can have a humanizing impact. “Everyone can relate to wanting to be a good example for their children,” Lin said. Interview with Stephanie Lin, Att’y, A New Way of Life Reentry Project, in Los Angeles, Cal. (Jan. 29, 2021).
Lou Shapiro, a criminal defense attorney and former Los Angeles County public defender, also employs strategies for reducing the impact of implicit bias in juries. Shapiro observed that implicit bias can be a significant obstacle to juror impartiality. Shapiro recalled defending an individual with a Middle Eastern surname at two successive jury trials. The first trial resulted in a hung jury. For the second trial, Shapiro boldly decided to assess the presence of implicit bias during voir dire by asking questions about his client’s name, such as “When you hear his name, what do you feel like?” These questions, designed to reveal biased thinking, evoked conversation about potential unfair implicit bias, allowing Shapiro an opportunity to present real facts about his client’s identity. Shapiro believes that this tactic helped the jurors overcome any bias, enabled them to solely focus on the evidence, and contributed to a jury verdict in his client’s favor. “Getting over the implicit bias allowed the jurors to look at the case with an open mind” said Shapiro. “If you talk about it, you can get past it, just by recognizing it.” Telephone Interview with Lou Shapiro, Att’y, Los Angeles, Cal., & Former Pub. Defender, Los Angeles Cnty., Cal. (Jan. 26, 2021).
Systemic Reform in the Criminal Justice System
The herculean task of addressing implicit bias in criminal cases should not be relegated to individual trial lawyers. It is a heavy burden to expect lawyers to engage in the psychological fishing expedition of identifying potential juror biases—and even more onerous to expect them to dismantle these biases. Such tasks require extensive training as well as time for original and inventive thought for each case, time that many lawyers (especially prosecutors and public defenders) may not have.
A more realistic and long-term solution is broader systemic reform designed to address implicit bias in criminal cases. There is some consensus that jurors should have on-the-job implicit bias training prior to jury deliberations. Mark Bennett, recently retired judge of the U.S. District Court of the Northern District of Iowa, would discuss implicit bias extensively with jurors during jury selection, ask jurors to take a pledge against bias, and give specific implicit bias jury instructions before opening statements. These jury instructions defined implicit bias; explained that everyone, including the judge himself, holds implicit biases; and advised jurors to make their decision based upon evidence, reason, and common sense—not personal likes and dislikes. Kang, supra, at 1182– 83.
In addition, addressing bias that occurs at earlier inflection points in a criminal case could have an even more profound impact. When prosecutors conduct an initial review of a case, they typically have far-reaching discretion to determine a defendant’s charges and whether they are felony or misdemeanor charges. In a conversation with Dr. Arin Reeves, attorney and leading implicit bias researcher, Reeves explained that prosecutors consider, when selecting charges, what the likelihood is that they will succeed at trial on those charges, and that assessment could include consideration of whether the prosecution will benefit from judge or juror bias. “What they’re saying is, ‘We perceive you as not having a good chance in front of the judge or the jury.’ In that moment, they’re not questioning the bias, and the bias becomes [a defendant’s] reality.” Telephone Interview with Arin Reeves, President, Nextions LLC, Chicago, Ill. (Feb. 3, 2021). Thus, commented Reeves, “at the very introduction of the process, a lot of the rest of the path is determined.” Id.
Asking prosecutors to humanize defendants when confronted with an immense volume of cases may be unrealistic. Thus, instead of relying on individually motivated behavior to eliminate biased prosecutorial discretion, defense lawyers should provide prosecutors with tools for screening their decisions for bias. For example, “a uniform prosecutor decision checklist to guide key prosecutorial decisions . . . could potentially force line prosecutors to slow down, consider additional mitigating or exculpatory factors, and attempt to place each decision and case into a broader systemic context.” Lars Trautman, How a Checklist Could Improve Prosecution, (July 2020) (R Street Policy Study No. 199).
Moreover, prosecutorial discretion is molded by charging guidelines issued by lead prosecutors. For example, newly appointed U.S. Attorney General Merrick Garland is expected to instruct federal prosecutors to make charging decisions that do not trigger mandatory minimum sentences, a policy change expected to minimize racial disparities in sentencing. Jarrett Renshaw & Sarah N. Lynch, “Biden Selects Judge Merrick Garland for Attorney General,” Reuters (Jan. 6, 2021). Similarly helpful charging guidelines in various jurisdictions could be aimed at decreasing the use of disproportionately impactful drug sentencing laws and three‐strikes‐type repeat‐ offender laws.
Given our country’s reckoning over racial and social injustices, it is up to lawyers to attempt to dismantle implicit biases to honor their duty of zealous advocacy while waiting for broader systemic reform. As Reeves put it, “the ideal is systemic intervention, and until we get that in place, whatever individual humans can do, we should do.” Reeves, supra.
Andrea (Andi) Mazingo is a senior associate with Orrick Herrington & Sutcliffe LLP in Los Angeles, California, and is a pro bono family reunification attorney at A New Way of Life Reentry Project.
This was originally published by the American Bar Association on 2/26/21. Read it here.
Tuesday, March 2, 2021
The LSU Law Journal for Social Justice & Policy is hosting its inaugural symposium, “Fighting White Supremacy in the 21st Century,” on Friday, March 19, 2021 (3-5 PM CST). The panel will consist of five distinguished legal scholars.
The virtual symposium is free and open to the public. To register – and learn more about the event, the journal, and the panelists – please visit https://www.law.lsu.edu/ljsjpsymposium/.
Monday, March 1, 2021
On March 26, 2021, the Indiana Law Review virtual Symposium, No Justice, No Peace: Finding Justice in American Policing, will explore the ways in which the Black Lives Matter Movement has precipitated both discussions and direct action to make changes to policing in America. From Ferguson in 2014 to today, activists and advocates are making stronger and more direct calls for changes in the role police play in our communities, especially communities of color. The wake of Breonna Taylor’s and George Floyd’s deaths, communities all across the country are holding public discussions about power and policing. This symposium will explore the impacts of policing for minority groups, how policing has changed in the wake of the Black Lives Matter Movement, and whether the calls to defund the police should be realized.
The schedule is listed below and can be found at the symposium webpage here.
Symposium Schedule: 10:00 AM ET – 1:20PM ET (3 hours CLE available)
10:00 AM – 10:05, Welcome – Bre Robinson, Indiana Law Review Symposium Editor
10:05-10:10 AM, Opening Remarks – Dean Karen E. Bravo, IU McKinney School of Law
10:10 – 11:10 AM
War on Black Women: Challenging Criminalization, Creating Community Safety
Keynote Speaker, Andrea Ritchie, immigrant police misconduct attorney and organizer.
11:10 – 11:15 AM
11:15 AM – 12:15 PM
Police Reform: From Prisons to the Streets, How Far We Have Come and How Far We Still Have to Go
- Kami Chavis, Vice Provost/Professor for Academic Initiatives at Wake Forest Law. Former Assistant U.S. Attorney for the District of Columbia.
- SpearIt, Professor at Thurgood Marshall School of Law.
- Seth Stoughton, Associate Professor at South Carolina School of Law. Co-author of Evaluating Police Uses of Force. Former police officer with the Tallahassee Police Department.
- Katie Tinto, Clinical Professor at University California Irvine School of Law. Former public defender in Los Angeles County.
- Moderator: Lahny Silva, criminal law professor at IU McKinney School of Law.
12:15 – 12:20 PM
12:20 – 1:20 PM
Defunding the Police: What it Means, What it Does, and Whether it Should be Realized
- Alex Vitale, Professor of Sociology at Brooklyn College. Author of The End of Policing.
- Paige Fernandez, Policing Policy Advisor for the ACLU National Political Advocacy Department.
- James Gagliano, law enforcement analyst and policing methodology subject matter expert for CNN. Adjunct assistant professor and doctoral candidate at St. John’s University. Served with the FBI for 25 years.
- Keith “Wildstyle” Paschall, Indianapolis historian and activist. Central Indiana Community Foundation (CICF) Ambassador.
- Moderator: Ebony Chappel, award-winning multimedia journalist and community advocate.