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  • Towards a Balanced Approach for the Protection of Native American Sacred Sites

    Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a "substantial burden" under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit's definition of "substantial burden" is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of "substantial burden," the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands.

  • Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court

    The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take legislative motivation more seriously in cases of persistent class discrimination. Finally, the Court cannot give sanction to any dominant group's view that the country's economic and social wealth belongs to them.

  • Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs

    This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the prosecuted White-affiliated gangs fell into three categories: international organized crime groups, outlaw motorcycle gangs, and White supremacist prison gangs. Some scholars and practitioners would explain these findings by contending that most criminal street gangs are comprised of racial minorities. This Article challenges and problematizes this factual assumption by critically examining the processes by which the government may come to label certain aiminal groups as gangs for RICO purposes. Based on the study findings, the Article argues that this labeling may be driven by systemic racial biases that marginalize entire racial minority groups and privilege mainstream nonimmigrant White communities. These systemic biases are characterized by converging constructions of race and crime, which fuse perceptions of gang-related crime with images of racial minorities. Conflating racial minorities with criminal activity enables the government to rely upon denigrating racial stereotypes in order to engage in invidious practices of racial profiling and to conduct sweeping arrests of racial minorities under RICO. This conflation also shields groups of nonimmigrant White criminal offenders from being conceptualized as gangs and shields nonimmigrant White neighborhoods from the stigma of having gang problems. In practice, this may harm communities that have White gang problems by preventing the government from executing gang-specific interventions within those communities.

  • Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination

    Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard at the commencement of litigation, evaluating the plausibility of claims before discovery - before evidence has been gathered and presented. This highly subjective pleading standard applies to all claims, including claims of discrimination by members of stereotyped groups. In short, under Iqbal, federal courts must grapple at the inception of litigation with deciding whether members of stereotyped groups have pleaded plausible claims of discrimination, relying on their intuitions and common sense, rather than evidence. The nature of this new pleading standard raises pressing and profound questions about the psychology of judging: Might Iqbal rest on a flawed theory of judgment and decision making? Can judges draw on common sense, rather than evidence, to adjudicate claims of discrimination by members of stereotyped groups without the subtle effect of implicit bias? This Article sheds light on these questions by drawing on social psychological research. From findings in the field of social psychology, the Article first forms hypotheses and then conducts an empirical legal study that closely examines how federal courts have adjudicated motions to dismiss Black plaintiffs' claims of race discrimination.

  • The Promise of Grutter: Diverse Interactions at the University of Michigan Law School

    In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color on the University of Michigan Law School campus to yield diverse interactions and that positive interracial student exchanges are occurring. Nevertheless, the lively discussions drawing from this diversity anticipated by the Grutter Court are seldom taking place within the classroom, where they may be most important; by neglecting to foster "diversity discussions," law schools are failing to cultivate the academic and professional benefits associated with educational diversity. Only through classroom diversity can the promise of diversity envisioned by the Grutter Court be fully realized.

  • Litigating against an Epidemic: HIV/AIDS and the Promise of Socioeconomic Rights in South Africa

    With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on behalf of those afected by HIV/AIDS. Building off the judgment in the Treatment Action Campaign case, this Comment argues that further litigation should be used to hold the government to the standards of the Constitution and to mitigate the impact of the epidemic.

  • ¡Silencio! Undocumented Immigrant Witnesses and the Right to Silence

    At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report crime or participate in local prosecutions, is a potent and defensible act of civil disobedience by the estimated twenty-two million imigrants in this country with anything less than full-citizenship status. There is a growing body of empirical evidence showing that local immigration enforcement leads to racial profiling, is unjustifiably expensive for local crime-fighting budgets, and results in the local immigrant population simply deciding not to call the police for any reason at all. This Article takes those arguments one step further, contending that immigrant communities can take matters into their own hands and protect themselves by choosing silence as an organized response to a regime that has rendered local police a threat, not a support, to millions of people within our borders. A commitment to silence by the immigrant community will lend a sense of urgency to these protests and spur real action from local law enforcement officials who appreciate the dangers of prioritizing immigration enforcement over community safety for all residents, citizen and noncitizen alike.

  • Urgent Reform ‘in the Name of Our Children’: Revamping the Role of Disproportionate Minority Contact in Federal Juvenile Justice Legislation

    Disproportionate minority contact ("DMC") has plagued the United States juvenile justice system for decades, but federal legislation has lacked the clarity and guidance to battle this affliction. A strong partnership must exist between state and federal entities in order to directly target DMC and thereby decrease the appallingly disproportionate number of minority children who come into contact with the juvenile justice system. This Note discusses the problem of DMC, identifies state and private efforts to combat the crisis, and indicates deficiencies in the Juvenile Justice and Delinquency Prevention Act as well as its reauthorization bill, S. 678. The Note urges Congress to revisit the reauthorization bill and supplement it with stand-alone legislation that will address DMC more effectively. Such law reform is urgent and timely, because the needs of at risk minority children have never been more pronounced than they are today.

  • Some Women’s Work: Domestic Work, Class, Race, Heteropatriarchy, and the Limits of Legal Reform

    This Note employs Critical Race, feminist, Marxist, and queer theory to analyze the underlying reasons for the exclusion of domestic workers from legal and regulatory systems. The Note begins with a discussion of the role of legal and regulatory systems in upholding and replicating White supremacy within the employer and domestic worker relationship. The Note then goes on to argue that the White, feminist movement's emphasis on access to wage labor further subjugated Black and immigrant domestic workers. Finally, I end with an in-depth legal analysis of New York's Domestic Worker Bill of Rights, the nation's first state law to specifically extend legal protections to domestic workers. The Note discusses many provisions of the bill and draws on the experiences of organizers involved in the passage of the bill to provide critical analysis of the limitations of legal reform. With this Note, I hope to provide organizers, activists, and legal practitioners with additional critical tools crafting solutions, legal reforms, and narratives in the struggle to end the oppression of domestic workers.

  • Finding a Cure in the Courts: A Private Right of Action for Disparate Impact in Health Care

    There is no comprehensive civil rights statute in health care comparable to the Fair Housing Act, Title VII, and similar laws that have made other aspects of society more equal. After Congress passed the Civil Rights Act of 1964, Title VI served this purpose for suits based on race, color, and national origin for almost four decades. Since the Supreme Court's 2001 ruling in Alexander v. Sandoval, however, there has been no private right of action for disparate impact claims under Title VI, and civil rights enforcement in health care has suffered as a result. Congress has passed new legislation in response to past Supreme Court decisions that read civil rights law too narrowly. In that tradition, this Note argues that courts may interpret S. 1557 of the Patient Protection and Affordable Care Act of 2010 as creating a private right of action for disparate impact in health care that is available to diverse protected classes.