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  • Permitting Under the Clean Air Act: How Current Standards Impose Obstacles to Achieving Environmental Justice

    Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems-the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals.

  • Poll Workers, Election Administration, and the Problem of Implicit Bias

    Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law does not explicitly allow for a poll worker to exercise discretion, there is a strong possibility that unconscious bias could play a role in poll worker decision-making. Whether a poll workers' discretion is de jure or de facto, the result may be race-based discrimination between prospective voters. This Article addresses how unconscious bias may play a role in the interaction between poll workers and prospective voters and discusses some ways in which the potential for unconscious bias to operate in America's polling places may be mitigated.

  • The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”

    In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. The Note further hypothesizes that this lack of executions created the policy space for legislative abolition. The Note then explores the effect that New Jersey's abolition might have on capital punishment in other states, as well as the potential influence of state-level abolition on the United States Supreme Court's evaluation of the constitutionality of the death penalty.

  • Eatin’ Good? Not in This Neighborhood: A Legal Analysis of Disparities in Food Availability and Quality at Chain Supermarkets in Poverty-Stricken Areas

    Many Americans-especially the poor-face severe hurdles in their attempts to secure the most basic of human needs-food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain--but located in a wealthier neighborhood-she would find a wide selection of healthy foods and fresh produce. What are the poor people who live in the inner cities--who are disproportionately African American and Latino-to do? How can they obtain healthy food against these odds? This Article argues that the actions of the supermarkets are unconscionable, and therefore proposes a federal law that will prevent chain grocery stores from engaging in such practices. The Article first examines the scope of the problem created by these supermarket practices. The Article then explains why current laws are inadequate to address this issue. Finally, the Article proposes that Congress use its authority under the Commerce Clause to enact legislation that would require supermarket chains to carry the same selection and quality of goods at all stores in the same chain.

  • The Unconstitutionality, Ineffectiveness, and Alternatives of Gang Injunctions

    Gang violence across America puts in jeopardy the peace and tranquility of neighborhoods. Cities are challenged to keep their communities safe from gang violence. One common way in which cities attempt to combat violent gang activity is by using gang injunctions. Gang injunctions are court orders that prohibit gang members from conducting already-illegal activities such as vandalism, loitering, and use or possession of illegal drugs or weapons within a defined area. These injunctions, however, also prohibit otherwise legal activity such as associating with others within the restricted area of the injunction, using words or hand gestures, and wearing certain clothing. The increased use of gang injunctions to combat violent gang activity is a controversial tactic. The use of gang injunctions raises many constitutional concerns, including violations of the 1st, 4th, 5th, 9th, and 14th amendments. Even if interpreted as constitutional, gang injunctions have been proven ineffective in preventing and deterring gang members from engaging in violent gang activity. Critics believe that gang injunctions create gang cohesiveness, animosity towards the police, and relocate the violent crime created by gang members by pushing gang members into adjacent neighborhoods just outside the injunction's target area. Finally, there are several proven-effective alternatives to gang injunctions. This Note explores the unconstitutionality of gang injunctions, reveals the ineffectiveness of gang injunctions, and investigates more effective and efficient alternatives.

  • Performing Discretion or Performing Discrimination: Race, Ritual, and Peremptory Challenges in Capital Jury Selection

    Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors offer as race neutral motivations for peremptorily striking Black jurors.

  • Teaching Whren to White Kids

    This Article addresses issues at the intersection of United States v. Whren and Grutter v. Bollinger at a time when the reality of racial profiling was recently illustrated by the high-profile arrest of a prominent Harvard professor. Given the highly racialized nature of criminal procedure, there is a surprising dearth of writing about the unique problems of teaching issues such as racial profiling in racially homogeneous classrooms. Because African American and other minority students often experience the criminal justice system in radically different ways than do Whites, the lack of minority voices poses a significant barrier to effectively teaching criminal procedure. This Article critiques current law school pedagogical approaches and suggests that we must both re-think academic methods for teaching criminal procedure within the classroom and expose 'post-racial" mythologizing outside the classroom.

  • Choosing Those Who Will Die: The Effect of Race, Gender, and Law in Prosecutorial Decision to Seek the Death Penalty in Durham County, North Carolina

    District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in Durham County, North Carolina from 2003 to 2007. The analysis indicates that although law has an important effect in determining criminal punishment, extrinsic elements such as race and gender overwhelm the law in influencing prosecutorial decisions to go for death. Durham county prosecutors are 43% more likely to seek the death penalty when a Black defendant kills a White victim compared to a situation where a Black defendant kills a Black victim. The analysis also demonstrates the existence of a gender gap in prosecutorial decision-making. Female murder victims are significantly more likely to precipitate a capital prosecution compared to male victims. These results have important policy implications. Despite publicized attempts by the Supreme Court to eradicate the twin evils of arbitrariness and discrimination from our system of capital punishment, these problems persist. Therefore, it is important for policy makers to devise explicit mechanisms to channel the discretionary judgments of local prosecutors toward greater reliance upon legal precepts rather than extra-legal considerations such as race and sex. As Justice William Brennan warned in his dissent in McKleskey v. Kemp, "The way in which we choose those who will die reveals the depth of moral commitment among the living."

  • Determining the (In)Determinable: Race in Brazil and the United States

    In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one's physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent-the presence of one African ancestor defines an individual as Black-determines an individual's "Blackness" in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one's physical appearance is determinative. Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one's physical appearance is the primary determinant of Blackness in both American nations. Indeed, one's ancestry is necessarily implicated in determining race based on “physical appearance," as this method of classifying race is grounded in socially mediated presumptions concerning how an individual's physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.

  • Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act

    Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal Fair Housing Act, 42 U.S.C. § 3600, et. seq. The author compares existing enforcement guidance under Title VII employment discrimination law and suggests solutions for balancing the concerns of private housing providers and strong policy reasons behind increasing access to private housing for individuals with criminal records.