Articles

View by Volume

Filter

  • The New Cultural Diversity and Title VII

    This Article will show that the most progressive diversity initiatives taking hold in the business community are facially neutral in their approach, merit-driven, and fundamentally culture-conscious (as opposed to race-conscious). These initiatives do not allow for any racial preference or gender preference and draw any such bias not from the inherent values of diversity but from the largely segregated pre-existing corporate tradition: hiring culturally aware minorities unleashes value because they bring insights previously unavailable to segregated businesses. In other words, White males can be and are hired in the name of cultural diversity when they bring cultural insights to the business. Nevertheless, these initiatives also serve to pave the way for traditionally excluded groups (including African Americans, Hispanics, and women) to participate in American economic life in a more meaningful fashion, and in far greater numbers than in the past.

  • Racial Profiling: “Driving While Mexican” and Affirmative Action

    This Essay will focus on "racial profiling" not just in the way many people think about the term-that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black"-but also in the context of "affirmative action"-namely, using race as a factor in employment and educational decisions. More broadly, then, the author wants us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual," which moves us slightly away from more pejorative notions of the phrase that have seeped into the national consciousness.

  • Puerto Rico: Cultural Nation, American Colony

    This Article articulates a theory of Puerto Rican cultural nationhood that is largely based on ethnicity. In linking ethnicity and citizenship, it is imperative, however, to avoid the evils of ethnic strife and balkanization, while celebrating rather than imposing difference; community consciousness cannot degenerate into fascism.

  • Cracking the Code: “De-Coding” Colorblind Slurs During the Congressional Crack Cocaine Debates

    This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory federal prison sentences. However, while this article, like many other law review articles on the subject, argues that the crack cocaine sentencing scheme is unconstitutional, the real purpose of analyzing the constitutionality of the crack statute is to show how "de-coding" can be an effective means of unmasking the racist meaning behind primarily race-neutral comments. When the interpretation of "de-coded," race-neutral comments falls in line with an un-coded historical pattern of discrimination, it makes sense to infer that there was an intent to discriminate.

  • Protecting Native Americans: The Tribe as Parens Patriae

    This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when applying parens patriae standing to Tribes. Part IV briefly examines permissible defendants under Tribal parens patriae standing.

  • Lowering the Preclearance Hurdle Reno v. Bossier Parish School Board, 120 S. Ct. 866 (2000)

    This Case Note examines a recent Supreme Court decision that collapses the purpose and effect prongs of Section 5, effectively lowering the barrier to preclearance for covered jurisdictions. In Reno v. Bossier Parish School Board II the Court determined that Section 5 disallows only voting plans that are enacted with a retrogressive purpose (i.e., with the purpose to "worsen" the position of minority voters). The Court held that Section 5 does not prohibit preclearance of a plan enacted with a discriminatory purpose but without a retrogressive effect. Evidence of a Section 2 violation alone will not be enough to prove a jurisdiction's discriminatory purpose and prevent Section 5 preclearance.

  • Breaking Into The Academy: The 2000-2002 Michigan Journal of Race & Law Guide for Aspiring Law Professors

    Once you have set your sights upon a career in law teaching you must determine how best to position yourself to obtain a job in the field. The answer is to write, publish, and otherwise bolster your credentials. Write as many papers with as many of your law school professors as you can; write onto a journal and have your article published; work as a research assistant for a professor and write with him or her; work for a judge and write bench memos and draft opinions; work for a public interest organization or a law firm and publish scholarship about the law you practice there. Whatever you do, write. In addition to providing proof of your interest in legal scholarship and supplying material from which you can fashion a job talk (a scholarly presentation that is a common feature of the interview process), writing with professors, judges, and lawyers will allow you to find mentors who will be able to vouch for your abilities when you need recommendations.

  • Between National and Post-National: Membership in the United States

    This essay argues that the concept of post-nationalism does not precisely explain the American concept of citizenship. This is due to the strict construction of the nation state in American constitutional theory, the ineffective role of international human rights norms in American jurisprudence, and the extension of protection to non-citizens based on territorialist rationales. For these reasons, the author suggests that denizenship is a more appropriate way of viewing the American citizenship model, and is one that explains how notions of personal identity can be transnational while still justifiable within traditional nation-state constructs.

  • The Charleston Policy: Substance or Abuse?

    In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.

  • Foxes Guarding the Chicken Coop: Intervention as of Right and the Defense of Civil Rights Remedies

    This article focuses on the recent spate of cases in which educational institutions on the grounds that their race-conscious admissions policies are unconstitutional. The author analyzes the role of minority students and organizations who are the beneficiaries of those polices at the defendant institutions and their recent attempts to intervene in the lawsuits pursuant to Rule 24 of the Federal Rules of Civil Procedure. First, the author argues that under the traditional interpretation of Rule 24(a); intervention of right should be granted to minority students and organizations in the great majority of instances. Second, the author looks at the reasons that courts have denied intervention, analyzing both the rights and interests of the beneficiaries and the presumption that government parties provide adequate representation. Third, the author examines the conflicts between the interests and goals of defendant institutions and beneficiaries, noting the consequences of denying intervention. The author concludes by arguing that where the affirmative action admissions policies of educational institutions are challenged, district courts should embrace a practical presumption in favor of intervention for minority students and organizations