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  • Justifying the Disparate Impact Standard Under a Theory of Equal Citizenship

    Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale to justify affirmative action in higher education admissions programs. It concludes by pointing out the inadequacies of alternative effects-based theories. Part III makes the case that an equal citizenship theory, based on a moral interpretation of the Fourteenth Amendment, best justifies the disparate impact standard. Finally, Part IV confronts some of the institutional issues underlying the equal citizenship theory as a justification for the disparate impact standard and suggests that Congress should have power under Section V both to interpret the Equal Protection Clause and to enact legislation that promotes equal citizenship.

  • Vultures in Eagles’ Clothing: Conspiracy and Racial Fantasy in Populist Legal Thought

    This Article has three interrelated aims. First, I will briefly describe the online world of the legal populists. My second aim in this Article is to give an account of legal populism that connects it with the American tradition of conspiracy theory and with the political consciousness of survivalism. My third and final aim in this Article is to examine, as David Williams has done in a wonderful series of articles, the relationship between the nation dreamed of by many legal populists and the one inhabited by state-sanctioned legal insiders.

  • Discrimination in Sentencing on the Basis of Afrocentric Features

    This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, this Article means those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. The research found that when one examines sentencing from this perspective, those defendants who have more pronounced Afrocentric features tend to receive longer sentences than others within their racial category who have less pronounced Afrocentric features.

  • Black Musical Traditions and Copyright Law: Historical Tensions

    This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence embodied copyright's clash with the Black musical tradition. Part VII portrays the history of the hip-hop musical phenomenon and illustrates how copyright's negative treatment of digital sampling continues to denigrate the Black musical tradition. Part VIII discusses the need for a more culturally inclusive copyright regime. Part IX concludes the Note by discussing the importance and benefits of amending the current copyright laws.

  • Felon Disenfrachisement Laws: Partisan Politics in the Legislatures

    This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

  • Si Se Puede, But Who Gets the Gravy?

    In this piece, the author writes in two alternating voices: the voice of rap and the voice of standard academic discourse. The rap passages are rude, direct, even raunchy, while the prose passages are rendered in academic English. This dichotomy is intentional: Rap represents the voice of the people, the voice from below, the voice of those who live in neighborhoods filled with broken glass, an impatient, insurgent voice that bears little in common with the complex, jargon-filled sentences of most contemporary left discourse. The latter voice, in my view, has become too detached from that of our many constituents who worry about their children turning to gangs and drugs and dropping out of school, about police harassment, and where their next paycheck is coming from.

  • Engaging the Spirit of Racial Healing Within Critical Race Theory: An Exercise in TransformativeThought

    This essay posits that Critical Race Theory (CRT) must operate at both the "idealist" and "materialist" levels. Although the emphasis may be in one direction or another at particular times, both domains are continually engaged. This essay links the debate between the "materialist" and "idealist" views to another central theme within CRT, which is the need for "justice" and how the law relates to justice. This essay focuses on the contemporary debate surrounding the status of Native Hawaiians to show how "race" is being used to construct the civil and political rights of Native Hawaiian people. CRT is a jurisprudence of possibility precisely because it rejects standard liberal frameworks and precisely because it seeks to be inclusive of different groups and different experiences. As I envision the future of CRT, I want to engage a discussion about "justice" and the relationship of justice to political or racial healing. Thus, this essay seeks to identify the foundation for CRT, as the need to achieve "social justice" for groups that have suffered a history of oppression, and to engage what it means to "heal" injustice which is embedded in society at the level of both structure and consciousness. Part I of the essay explicates the scholarly debate between Professors Delgado and Johnson and offers three general themes which are useful to understand CRT as a vehicle for transformative thought in American jurisprudence. Part II probes the relationship of justice to law, drawing on contemporary work in political theory dealing with transformative political change, and sets the framework for the case study on contemporary Native Hawaiian political and legal rights, which is featured in Part III. In analyzing the case study, this essay examines the historical context within which Native Hawaiian rights are situated, and compares the analysis in the federal court cases that are constructing contemporary Native Hawaiian rights as well as the rights of non-Natives. Finally, Part IV of the essay explores the theme of racial healing and suggests how the idealist and materialist frameworks of thought within CRT might be used to effectuate the necessary change.

  • African American Intimacy: The Racial Gap in Marriage

    This essay is divided into three parts. Part I documents the extent of the racial gap in marriage. Part II uses the marriage patterns of affluent Black men in particular to speculate about how the relationships of Black men and women might be influenced by the relative numbers of men and women and the men's socioeconomic characteristics in ways that depress marriage rates. Part III connects the low rate of marriage among African Americans to the differing interracial marriage rates of Black men and women.

  • “We Insist! Freedom Now”: Does Contract Doctrine Have Anything Consitutional to Say?

    This Article first exposes the detachment between contract doctrine and the scattered antidiscrimination norms and analyzes the harmful consequences of this detachment. It then creates an original meeting point between the two bodies of law, one of which is intentionally located within contract doctrine. This point is found by dismantling the dominant concept of "freedom OF contact", and especially by defining and establishing the freedom to make a contract.

  • The Sacred Way of Tibetan CRT Kung Fu: Can Race Crits Teach the Shadow’s Mystical Insight and Help Law Students “Know” White Structural Oppression in the Heart of the First-Year Curriculum? A Critical Rejoinder to Dorothy A. Brown

    Part I of this Article uses a quasi-parable, in which Dorothy Brown is a Tibetan Master who teaches law students CRT Kung Fu, the monastic fighting skills by which they will acquire the Shadow's mystical insight to "know" the heart of the first-year curriculum. Part II challenges the organizing principles and content on which Brown's Critical Race Theory purports to critically interrogate traditional legal doctrine, applying a New Age Philosophical critique as well as agency theory to crack dealing in Spanish Harlem. I use this case study to argue that crack dealers deliberately and purposefully choose extra-legal economic opportunities, even at the expense of their neighbors and community. The Conclusion demands that Race Crits think outside of the white structural oppression logical box.