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  • Toward an Understanding of Judicial Diversity in American Courts

    Part I of this Article explores the utility of descriptive representation as an important concept in understanding why judicial diversity matters from a political perspective. Part II begins an empirical examination of judicial diversity at the federal level while Part III presents an analysis of state court diversity. The data presented in Parts II and III indicate that judges of color are underrepresented at all levels of the federal and state court systems and that particular racial and ethnic groups are virtually excluded from federal and state benches. The conclusion argues that the data presented in this Article support a disquieting portrait that erodes the myth of progress toward the attainment of a multiracial and multiethnic American judiciary.

  • Breaking the Camel’s Back: A Consideration of Mitigatory Criminal Defenses and Racism-Related Mental Illness

    This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.

  • Obligations Impaired: Justice Jonathan Jasper Wright and the Failure of Reconstruction in South Carolina

    Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. Finally, the article concludes that if Wright had taken Whipper's more aggressive tact in his judicial opinions and political activity, the story of South Carolina Reconstruction might have evolved differently. African Americans might have retained some of their political voice as memories of Reconstruction faded into the past.

  • Regulating Target Marketing and Other Race-Based Advertising Practices

    Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to regulate advertising generally and specific laws that reach discriminatory advertising for particular products and services. Part IV specifically analyzes the Federal Trade Commission's existing authority to regulate unfairness in advertising as it might be used to prevent advertising with racist effects. Finally, recognizing the difficulty of governmental intervention in the marketplace, this article suggests guidelines for use by advertisers who affirmatively wish to avoid advertising practices that cause racist harms.

  • Prologue: Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents

    The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.

  • Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents

    In the Supreme Court of the United States. Barbara Grutter V. Lee Bollinger

  • Locked in Inequality: The Persistence of Discrimination

    In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.

  • Power, Possibility and Choice: The Racial Identity of Transracially Adopted Children

    Review of The Ethics of Transracial Adoption by Hawley Fogg-Davis

  • Abandoning the PIA Standard: A Comment on Gila V

    Part I of this Note examines the development of Indian reserved water rights, and the practicably irrigable acreage method of quantifying those rights, as defined by the Court. Part II describes the arguments of state and private interests that oppose broad Indian water rights. Part III discusses Gila V, including the Arizona Supreme Court's rationale for abandoning the standard set forth by the U.S. Supreme Court and the standard for quantifying Indian reserved rights that the court applied in its place. Part IV analyzes the Arizona Supreme Court's justifications for abandoning the standard, and considers alternate grounds for the decision. Ultimately, this Note concludes that the Arizona Supreme Court misinterpreted precedent and wrongfully rejected the standard established by the U.S. Supreme Court in Arizona I and Arizona II. Thus, Gila V should be viewed as an abrogation of the established standard for defining Indian water rights and not serve as precedent.

  • “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making

    This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.