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  • Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage

    This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but rarely incorporate the Supreme Court's antisubordination message, as articulated through its anti-white supremacy stance. This Article seeks to rectify that. It argues that same-sex marriage subverts White supremacy by undermining heterosupremacy, countering notions of White superiority, and, because of the very existence of interracial same-sex couples, striking society "color-blind," thus rendering race temporarily invisible. This Article reaches the conclusion that same-sex marriage is a civil rights issue that works against heterosupremacy and White supremacy and that Loving v. Virginia is indeed a case that can and should be extended to sanction same-sex marriage and support Lesbian and Gay couples.

  • Without Color of Law: The Losing Race Against Colorblindness in Michigan

    This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

  • Rethinking Customary Law in Tribal Court Jurisprudence

    Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the ancient customs and traditions of the people. But this development of applying customary law in tribal courts is new and undertheorized. For the first time, this Article attempts to provide an adequate theory as to how tribal judges should find and apply customary law on a normative level. This Article argues that tribal judges have a great deal to learn from H.L.A. Hart's theory of primary and secondary rules.

  • The End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act

    This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition of purpose thrown out by Bossier II. The authors believe that the analysis in the following pages provides critical evidence for the debate over reauthorization and revision of the Voting Rights Act.

  • Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis

    This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth Amendment.

  • Choice and Fraud in Racial Identification: The Dilemma of Policing Race in Affirmative Action, the Census, and a Color-Blind Society

    This Article focuses on the implications of self-conscious efforts by individuals to alter their racial identity and the challenge that they pose to social conventions and the law. It also considers some implications of such a framework to the promotion of a color-blind society, in particular with respect to health care services and bureaucratic records.

  • The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence

    This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites in affirmative action cases. This Article concludes that the Court's insistence on choosing and imposing only one racialized perspective--the White-centered perspective--in racially-inflected constitutional claims is more than simply bad policy: that choice embodies an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment. This Article calls for an appreciation of the dominant use and problematic character of the judicial imposition of an arbitrarily chosen racial perspective in deciding all constitutional race cases. It suggests a modification in judicial decisionmaking in which judges become conscious of the White-centeredness and arbitrariness and racial contingency of the White-centered vantage point. This Article urges a judicial appreciation of multiple levels of racial interpretation in an effort to loosen the hegemonic grip of the White-centered perspective and dilute its power on the mind and imagination of the judiciary. If this goal can be achieved, the White-centered perspective will become just one option among a multitude of equally-respected racial perspectives that can then fairly compete for both judicial recognition and legitimization.

  • Negative Action Versus Affirmative Action: Asian Pacific Americans are Still Caught in the Crossfire

    The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November 2006 ballot. For example, in commenting to the press about Espenshade and Chung's study, Roger Clegg of the Center for Equal Opportunity-a leading advocacy group working to dismantle affirmative Action- cast the issue in starkly (and falsely) divisive terms: "If eliminating race-based admissions results in more Asian students or fewer African American students being admitted to top schools, so be it"

  • The Diversity Rationale: Unprovable, Uncompelling

    Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

  • The Tribal Sovereign as Citizen: Protecting Indian Country Health and Welfare Through Federal Environmental Citizen Suits

    This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits directed at one facility cannot and should not replace comprehensive tribal programs, they offer concrete benefits to tribes without risking adverse judicial decisions on the scope of tribal sovereignty and Indian country.