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Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts
A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the "primitive formalism" Judge Cardozo derided nearly ninety years ago when he said "[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view to-day." Does it? Despite the title of this piece, the goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, the author explores what lies beneath the "primitive formalism" or somewhat smug determination of the court that common sense answers the question for us. This Article suggests Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. The author explores this bias by examining the determination of this case and the impact of race, class and culture on contract principles.From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law
In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. It argues that whereas social scientists see desegregation in terms of social change requiring integration, for lawyers desegregation is a remedy the content of which is shaped by the nature of the litigation. The imperatives of law and social science have in the past coincided in a jurisprudence of affirmative action but the recent school assignment cases demonstrate the extent to which they have now diverged. This divergence underlies the indeterminacy of the desegregation mandate and provides an analytical framework for a theory of the role of the court expert in schools desegregation.Let’s Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the disagreeing courts. The crux of this Article is that both sides of the debate have erred. Both sides wrongly assume that the consequences of accepting these vote denial challenges are predictable. However, because a standard approach to vote denial challenges under Section 2 does not currently exist, no court can foresee the results of allowing such challenges to felon disenfranchisement laws. Therefore, predicting the constitutional implications of accepting these challenges without first identifying an appropriate analysis is impossible. This Article concludes by proposing an analysis for consideration. The proposed approach is a tailored version of sliding scale scrutiny--an analysis that the United States Supreme Court following Burdick v. Takushi, now applies to constitutional voting rights claims. Using this adapted approach, the Supreme Court can resolve the current split in authority and find that Section 2 is a viable vehicle for challenging racially-discriminatory felon disenfranchisement laws.In Defense of the Indian Child Welfare Act In Aggravated Circumstances
The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota's position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents.Affirmative Action & Negative Action: How Jian Li’s Case Can Benefit Asian Americans
In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. Affirmative action is not discriminatory because it considers a multitude of factors, including race, to achieve a diverse student population. Nor does affirmative action sacrifice merit; rather, it redefines merit in a way that can benefit students of all racial groups. On the other hand, negative action is discriminatory and prevalent. Whether it takes the form of legacies, admission limits or racial group comparisons, negative action discriminates against Asian Americans based on their race and contributes to existing inequalities in admissions. Framing Li's case as a claim against negative action instead of affirmative action is a more accurate analysis that attacks ongoing discrimination in admissions, but preserves affirmative action's benefit for all racial groups.From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action Voter Initiatives
Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100The Current State of Residential Segregation and Housing Discrimination: The United States’ Obligations Under the International Convention on the Elimination of All Forms of Racial Discrimination
The United States government accepted a number of obligations related to housing when it ratified the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). For example, the United States government must ensure that all people enjoy the rights to housing and to own property, without distinction as to race; cease discriminatory actions, including those that are discriminatory in effect regardless of intent; and take affirmative steps to remedy past discrimination and eradicate segregation. This Article discusses the United States government's compliance with those obligations, as well as the importance of meaningful compliance in maintaining the United States' credibility on human rights issues. In the context of those obligations, this Article evaluates the current state of housing discrimination and segregation in the United States and the significant problems the United States government must address to fulfill its obligations under CERD. For example, some programs and policies of the United States government, both historically and today, have contributed to the creation and perpetuation of highly segregated residential patterns across the United States. In addition, private acts of discrimination frequently confront African Americans and Latinos attempting to rent or purchase a home, or attempting to secure funding or insurance for a home purchase. The United States government must improve its enforcement of the nation's fair housing laws to improve its compliance with CERD and ensure that all residents, regardless of race, enjoy a right to fair housing. This Article concludes by directing a series of recommendations to specific arms of the government, specifically the Department of Housing and Urban Development, the Department of Justice, the United States Congress, the Internal Revenue Service, and state and local governments, to facilitate the United States government's compliance with CERD.Gitano Legal Codes: Social Change, NGO’s, and External Legal Systems’ Influence on Governance of Spanish Roma Communities
Gitanos are the Roma, otherwise known as Gypsies, of Spain that are predominantly concentrated in the southern province of Andaluda. Although the Roma are Europe's largest transnational minority, very little efforts have been made to understand their legal systems. Additionally, due to their long histories of oppression in Europe and internal legal codes that discourage sharing details of their legal systems with outsiders, their legal systems are particularly difficult to understand and for the most part, remain enigmatic and misunderstood. This Article analyzes the historical factors affecting the development of the Gitano legal system by using a horizontal axis metaphor, and the present-day effects of other legal jurisdictions and social factors on the Gitano legal system through a vertical axis metaphor. Through this analysis, the author offers suggestions as to how Gitanos may gain representation of their legal system without compromising tenets of their legal codes, and hopes that a similar mode of analysis may be applied to both Roma and other stateless communities. Critical analysis is crucial in brainstorming for solutions in dealing with the Roma's dire social situations, often described as "Europe's worst human rights abuse." Spain is in a unique position to lead efforts in this arena because of the relatively more assimilated social situations of Gitanos compared to other Roma. Also, as an established European Union member with the largest population of Roma in Western Europe, Spain also stands in a position to influence European Union policy towards all Roma of European Union states. This is particularly important as Eastern European states with high Roma populations are now slowly entering the European Union.Education and Labor Relations: Asian Americans and Blacks as Pawns in the Furtherance of White Hegemony
Asian Americans and Blacks have been, and continue to be, racialized relative to each other in our society. Asian Americans and Blacks have come to occupy marginalized positions as the polarized ends on the economic spectrums of education and labor relations, with an expanding "Whiteness" as the filler in the middle as Whites manipulate the differing interests of both subordinated groups to align with White (the dominant group's) interests. Although Whites purport to champion the interests of one subordinate group over the other, in reality the racialization of Asian Americans and Blacks in our country is rooted in the preservation of White hegemony; this racialization is harmful to both subordinate groups and serves to reinforce White hegemony by exploiting areas of White privilege and domination, particularly in the context of education and labor relations. However, many mainstream theories and historical attempts to characterize the racialization of Asian Americans and Blacks (the theory of a monolithic form of racism that just happens to result in differing effects on Asian Americans and Blacks, the theory of a Black- White binary, the racial triangulation of Asian Americans against Whites and Blacks, and the "model minority" myth) fail to fully describe and capture the different positions within a multidimensional social hierarchy that Asian Americans and Blacks occupy. Therefore, we must look beyond these theories in order to fully understand race relations and the position of Asian Americans and Blacks in our society.
