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  • Origin Stories: Critical Race Theory Encounters the War on Terror

    Stories matter. They matter to those intent on maintaining structures of power and privilege, and to those being crushed by those structures. In the United States, the space to tell, and to hear, our stories has been expanding. This means that the histories and lived realities of those who have been excluded, particularly people of color, are seeping into mainstream discourse, into the books our children read, the movies and television shows they watch, and the many websites comprising social media. Critical race theory has played a role in this expansion. It insists that we recognize the legitimacy of the stories of those deemed “Other” because they have been erased or distorted beyond recognition in the dominant narrative. 3 Critical race theory has helped ensure that the legacies of genocide and broken treaties, of the cruelties imposed upon enslaved persons, of the forced inclusion and exclusion of those regarded simply as disposable labor, have worked their way into the realm of what can be talked about. Critical race scholars have exposed immigration injustices and called out xenophobia and Islamophobia. All this discomfits those who benefit, or believe they benefit, from the status quo.

  • Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women

    This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic of biological race. Though the principle of informed consent traditionally protects the rights of autonomy, bodily integrity, and well-being, medicine nevertheless routinely subjects Black women to medically unnecessary procedures. This Essay adopts the framework of obstetric racism to analyze Black women’s overmedicalization as a site of reproductive subordination. It thus offers a critical interdisciplinary and intersectional lens to broader conversations on race in reproduction and maternal health.

  • U.S. Race Relations and Foreign Policy

    It is easy for Americans to think that the world’s most egregious human rights abuses happen in other countries. In reality, our history is plagued by injustices, and our present reality is still stained by racism and inequality. While the Michigan Journal of International Law usually publishes only pieces with a global focus, we felt it prudent in these critically important times not to shy away from the problems facing our own country. We must understand our own history before we can strive to form a better union, whether the union be the United States or the United Nations. Ambassador Susan Page is an American diplomat who has faced human rights crises both at home and abroad. We found her following call to action inspiring. We hope you do too.

  • Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws

    This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of racially inferior, undesirable, and unassimilable immigrants. Moreover, by using a DisCrit framework to critique today’s mental health-related exclusionary law, INA § 212(a)(1)(A)(iii), this Article reveals how this law carries forward the white supremacist, racist, and ableist ideologies of eugenics into the present in order to shape ideas of citizenship and belonging. The ultimate goal of the Article is to broaden the conceptualization of race-based immigrant exclusion to encompass mental health-related immigrant exclusion, while demonstrating the utility of DisCrit as an exploratory analytical tool to examine the intersections of race and disability within immigration law.

  • When Critical Race Theory Enters the Law & Technology Frame

    Michigan Technology Law Review is proud to partner with our peers to publish this essay by Professor Jessica Eaglin on the intertwining social construction of race, law and technology. This piece highlights how the approach to use technology as precise tools for criminal administration or objective solutions to societal issues often fails to consider how laws and technologies are created in our racialized society. If we do not consider how race and technology are co-productive, we will fail to reach substantive justice and instead reinforce existing racial hierarchies legitimated by laws.

  • Law and Anti-Blackness

    This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction— literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.

  • Aligned: Sex Workers’ Lessons for the Gig Economy

    Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow economy. This Article digs into the sometimes-conflicting desires of individuals working as sex workers and gig workers to inform how gig workers can achieve the power and economic independence necessary to prevent workplace exploitation.

  • Asian Americans and Pacific Islanders and the Prison Industrial Complex

    Recent uprisings against racial injustice, sparked by the killings of George Floyd and others, have triggered urgent calls to overhaul the U.S. criminal “justice” system. Yet Asian Americans and Pacific Islanders (AAPIs), the fastest-growing racial group in the country, have largely been left out of these conversations. Identifying and addressing this issue, I intercalate AAPIs into powerful, contemporary critiques of the prison industrial complex, including emergent abolitionist legal scholarship. I argue that the model minority myth, an anti-Black racial project, leads to the exclusion of AAPIs in mainstream and critical studies of crime and carcerality. I begin the intervention by critiquing the lacuna that exists within Asian American Jurisprudence, specifically the erasure of criminalized AAPIs’ voices and experiences. I then demonstrate that AAPIs are caught in the carceral web of mass incarceration by highlighting the lived experiences of AAPI youth within the school-to-prison pipeline, in addition to excavating the minimal publicly available data on AAPI prison populations. Adopting multidisciplinary and multimodal methods, I identify and analyze distinct forms of racial profiling and racialized bullying that drive AAPI students out of schools and into prisons. I pay specific attention to the criminalization of various AAPI youth subgroups as whiz kids, gang members, or terrorists. In uncovering previously unexamined dimensions of the criminal system, I stress how the exclusion of AAPIs in critical discourse obscures the actual scale of the carceral state, erases complex intra- and interracial dynamics of power, marginalizes criminalized AAPIs, and concurrently reinforces anti-Blackness and other toxic ideologies. The Article reaffirms critical race, intersectional, and abolitionist analyses of race and criminalization. It also directly links Asian American Jurisprudence to on-going abolitionist critiques of the prison industrial complex. I conclude with a proffer of abolitionist-informed solutions to the school-to-prison pipeline such as the implementation of an Ethnic Studies curriculum. Lastly, I issue a call, particularly to AAPI communities, for fiercer and more meaningful coalition-building.

  • Jail By Another Name: ICE Detention of Immigrant Criminal Defendants on Pretrial Release

    This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This Article agrees with and expands on this interpretation of the BRA. Focusing on the BRA’s plain text and legislative history, it argues that the BRA confers a “right to remain released” pending trial, which ICE detention infringes. It then debunks the leading counterarguments to this BRA interpretation. It also explores constitutional arguments for the right to remain released and their implications for federal and state criminal defendants.

  • Man’s Best Friend? How Dogs Have Been Used to Oppress African Americans

    The use of dogs as tools of oppression against African Americans has its roots in slavery and persists today in everyday life and police interactions. Due to such harmful practices, African Americans are not only disproportionately terrorized by officers with dogs, but they are also subject to instances of misplaced sympathy, illsuited laws, and social exclusion in their communities. Whether extreme and violent or subtle and pervasive, the use of dogs in oppressive acts is a critical layer of racial bias in the United States that has consistently built injustices that impede social and legal progress. By recognizing this pattern and committing to an intentional effort to end the devaluation of African Americans, the United States can begin to address the trailing pawprints of its racial inequities.