Articles

View by Volume

Filter

  • The USA Patriot Act: A Policy of Alienation

    This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.

  • On Justitia, Race, Gender, and Blindness

    This Essay focuses on Justitia's more problematic attributes. Like Justitia's blindfold, which has been described as "the most enigmatic" of her traits. Is the blindfold merely emblematic of Justitia's purported impartiality, her claim to algorithmic justice? As law professor Costas Douzinas and art historian Lynda Nead have asked, does the blindfold enable Justitia "to avoid the temptation to see the face that comes to the law and put the unique characteristics of the concrete person before the abstract logic of the institution"? Or does the blindfold signify something more, a second sight of sorts? Maybe that Justitia, unable to see, becomes, like Sophocles' Teiresias, a seer? That Justitia, lacking sight, obtains insight? The French scholar M. Petitjean gives us yet a third possibility: that the blindfold functions as a limiting principle, reminding Justitia that she should tread cautiously, slowly, always cognizant of the step that came before.

  • Constitutional Cash: Are Banks Guilty of Racial Profiling in Implementing the United States Patriot Act?

    This Article begins by comparing the concerns of American racial profiling to current terrorism concerns. Part II is an overview of the Bank Secrecy Act and its role in privacy issues concerning bank customers (as the predecessor to the USA Patriot Act). Here, the value of traditional reporting devices, specifically CTRs and SARs used by banks to alert law enforcement to possible terrorist activities, are discussed and evaluated. The facts suggest these reports have been ineffective in identifying terrorists, and have not only greatly infringed upon First Amendment privacy rights, but also diminished the Fourth Amendment protection against warrant-less searches of American bank account holders. Although the Supreme Court has previously ruled on the Constitutionality of these issues, I suggest that they must now reexamine a decision which many always felt was illogical, but has become increasingly so in today's fear-driven environment. Part III explores the policies banks initiated to comply with Patriot Act I, and the possibility that those policies have contributed, to the racial profiling of certain individuals of, or mistaken for, being of Middle Eastern descent. Part IV is an analysis of some of the problems Patriot Act I created. Part V highlights the dangers of The Proposed Domestic Security Enhancement Act, also known as Patriot Act I. Part VI discusses the desperate need to pass the End Racial Profiling Act (ERPA) and evaluates whether the changes in bank policy attributed to Patriot Act I and proposed Patriot Act II are essential to the government's ability to strengthen national security and root out terrorists in our midst, even though they compromise the financial privacy Americans expect and believe in. Finally, the Conclusion proposes several solutions to protect American Constitutional liberties, obtain the intelligence necessary to protect us from terrorism, while most importantly beginning the process of repairing the psyche of America.

  • Reading, Writing, and Reparations: Systemic Reform of Public Schools as a Matter of Justice

    This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain its tradition of segregation. Part III places that discrimination in historic context, examining Virginia's long history of denying educational opportunities to African Americans. This section demonstrates that the state's intransigence in the face of the Brown decision was but one incident in a centuries-old chain of state-imposed constraints on education for Blacks. Starting with proscriptions against literacy for slaves, and moving to legislation designed to disfranchise Blacks after emancipation, among other means, Virginia used and abused public education to maintain an oppressive social order in which African Americans would perpetually be at the bottom. As a result, Part IV concludes that the Brown Fund Act falls far short of remedying the scope of the state's wrongdoing. In the face of, quite literally, centuries of government abuse of its authority to purposefully exclude its citizens, reparations-that is, a remedy designed to rectify a profound injustice that reverberates today-are necessary. This Part then briefly touches upon the varied forms reparative remedies might take to mend the breach.

  • Dislocated and Deprived: A Normative Evaluation of Southeast Asian Criminal Responsibility and the Implications of Societal Fault

    This Note argues that certain Southeast Asian defendants should be able to use their families' refugee experience as well as their own economic and social marginalization in the U.S. as a partial excuse for their criminal acts. This argument draws its strength from both the socioeconomic deprivation of much of the Southeast Asian community and the linking of this reality to a careful analysis of the moral foundations of the criminal law. In essence, the American criminal justice system, which draws much of its moral force to punish from the theory of retributivism, cannot morally justify the full punishment of a large portion of the Southeast Asian community. It is precluded from doing so by American society's contribution, in one form or another, to many of these defendants' criminal conduct.

  • Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church

    Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the question of whether such trials, so long after the events in question, serve any useful purpose.

  • Urban Legends, Desegregation and School Finance: Did Kansas City Really Prove That Money Doesn’t Matter?

    This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been cited as proof by conservatives that no correlation exists between educational outcomes and academic performance. The final section uses national and state level data on school funding and student outcomes to determine whether their assertions are correct.

  • A History of Hollow Promises: How Choice Juisprudence Fails to Achieve Educational Equality

    This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms and education policy initiatives to address the scope of the problem of educational inequalities. This essay contextualizes the issue to demonstrate how policies have reinforced a dominant narrative about race that is counter to the goal of ending educational disparities and continues to harm individuals and communities of color even as they try to respond to these issues.

  • Accumulation

    Anthony Farley brings a focus on class back to Critical Race Theory by exploring the intersection of race and class as a singular concept that finds its creation in the marking of difference through the primal scene of accumulation. Professor Farley's Essay contends that the rule of law is the endless unfolding of that primal scene of accumulation. By choosing to pray for legal relief rather than dismantling the system, the slave chooses enslavement over freedom. Professor Farley discusses the concept of ownership as violence and explains that property rights are the means of protecting the master class until everything and everyone comes to be owned. The commodification of race and its twin concept of class through the market based system show how the rule of law is only the disguise for the rule of one group over another, white-over-black.

  • From Race to Class Struggle: Re-Problematizing Critical Race Theory

    The misconstrual of "class" as a theoretical and analytic concept for defining group or individual identity has led, especially during the Cold War period, to its confusion with status, life-style, and other ideological contingencies. This has vitiated the innovative attempt of CRT to link racism and class oppression. We need to reinstate the Marxist category of class derived from the social division of labor that generates antagonistic class relations. Class conflict becomes the key to grasping the totality of social relations of production, as well as the metabolic process of social reproduction in which racism finds its effectivity. This will help us clarify the changing modes of racist practices, especially in global market operations where immigrant female labor plays a decisive role. This Essay uses the example of Filipina domestics as a global social class actualized in its specific historical particularity as gendered, neocolonized subjects of capital accumulation. CRT can be renewed by adopting class struggle as the means of resolving racial injustice through radical structural transformation.