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From Pelican Bay to Palestine: The Legal Normalization of Force-Feeding Hunger-Strikers
Hunger-strikes present a challenge to state authority and abuse from powerless individuals with limited access to various forms of protest and speech—those in detention. For as long as hunger-strikes have occurred throughout history, governments have force-fed strikers out of a stated obligation to preserve life. Some of the earliest known hunger-strikers, British suffragettes, were force-fed and even died as a result of these invasive procedures during the second half of the 19th century. This Article examines the rationale and necessity behind hunger strikes for imprisoned individuals, the prevailing issues behind force-feeding, the international public response to force-feeding, and the legal normalization of the practice despite public sentiment and condemnation from medical associations. The Article will examine these issues through the lens of two governments that have continued to endorse force-feeding: the United States and Israel. This examination will show that the legal normalization of force-feeding is repressive and runs afoul of international human rights principles and law.Urban Decolonization
National fair housing legislation opened up higher opportunity neighborhoods to multitudes of middle-class African Americans. In actuality, the FHA offered much less to the millions of poor, Black residents in inner cities than it did to the Black middle class. Partly in response to the FHA’s inability to provide quality housing for low-income blacks, Congress has pursued various mobility strategies designed to facilitate the integration of low-income Blacks into high-opportunity neighborhoods as a resolution to the persistent dilemma of the ghetto. These efforts, too, have had limited success. Now, just over fifty years after the passage of the Fair Housing Act and the Housing Choice Voucher Program (commonly known as Section 8), large numbers of African Americans throughout the country remain geographically isolated in urban ghettos. America’s neighborhoods are deeply segregated and Blacks have been relegated to the worst of them. This isolation has been likened to colonialism of an urban kind. To combat the housing conditions experienced by low-income Blacks, in recent years, housing advocates have reignited a campaign to add “source of income” protection to the federal Fair Housing Act as a means to open up high-opportunity neighborhoods to low-income people of color. This Article offers a critique of overreliance on integration and mobility programs to remedy urban colonialism. Integration’s ineffectiveness as a tool to achieve quality housing for masses of economically-subordinated Blacks has been revealed both in the historically White suburbs and the recently gentrified inner city. Low-income Blacks are welcome in neither place. Thus, this Article argues that focusing modern fair housing policy on the relatively small number of Black people for whom mobility is an option (either through high incomes or federal programs) is shortsighted, given the breadth of need for quality housing in economically-subordinated inner-city communities. As an alternative, this Article proposes, especially in the newly wealthy gentrified cities, that fair housing advocates, led by Black tenants, insist that state and local governments direct significant resources to economically depressed majority-minority neighborhoods and house residents equitably. This process of equitable distribution of local government resources across an entire jurisdiction, including in majority-minority neighborhoods, may be a critical step towards urban decolonization.Do You See What I See? Problems with Juror Bias in Viewing Body-Camera Video Evidence
In the wake of the Michael Brown shooting in Ferguson, Missouri, advocates and activists called for greater oversight and accountability for police. One of the measures called for and adopted in many jurisdictions was the implementation of body cameras in police departments. Many treated this implementation as a sign of change that police officers would be held accountable for the violence they perpetrate. This Note argues that although body-camera footage may be useful as one form of evidence in cases of police violence, lawyers and judges should be extremely careful about how it is presented to the jury. Namely, the jury should be made aware of their own implicit biases and of the limited nature of the footage. Taking a look at the biases that all jurors hold as well as the inherent subjectivity of video footage, this Note shows how implicit biases and the myth of video objectivity can create problems in viewing body-camera footage and the footage should, therefore, be treated carefully when introduced at trial.Whiteness at Work
How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized phenomenon. This Article maps current cases dealing with racial discrimination between Whites, arguing that these cases suffer from under-theorization stemming from courts’ tendency to de-racialize Whiteness and see White people as ‘not being of any race.’ This tendency has led to a limited doctrine of same-race discrimination between Whites, affording it recognition only when racial minorities are involved. Acknowledging Whiteness as a racial project— the product of White supremacy—may enable courts to better theorize intra-White discrimination. Such possible theorization is developed via the stereotype doctrine. Accordingly, same-race discrimination and/or harassment between Whites is often a result of Whites policing other Whites to conform to stereotypes and expectations regarding Whiteness, i.e., how White people should act or with whom they may associate. Recognizing dynamics of intra-White racialization and the racial work behind Whiteness, this Article concludes, is aligned with Title VII’s antisubordination goals, as it is in the interest of racial minorities as well.Distant Voices Then and Now: The Impact of Isolation on the Courtroom Narratives of Slave Ship Captives and Asylum Seekers
Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined that those captives claimed by a non-U.S. nation were slaves. The Court reasons that however “abhorrent” the slave trade was, the United States was obligated to recognize the rights of other nations to participate in it. In comparison, the Amistad concerned the fate of captives aboard a slave trade ship in which the captives committed mutiny, attempted to sail to Africa, but were captured by a U.S. vessel. The Supreme Court ordered them free despite the Spanish government’s claim that the captives were its property. Part I explores these different outcomes and argues that the absence of Antelope captives’ stories in the litigation process was partly due to the decision to isolate captives in slavery before their status was determined. In particular, it argues that this isolation affected the outcome of the Antelope by preventing captives from sharing their anecdotes and translating them to a format that would resonate with their legal counsel, the public, and judges. In contrast, the Amistad captives, while also detained, were situated close to those who could help them. They were able to transform their truths into a winning narrative for the court by understanding and leveraging the talents and expertise of counsel, and the biases of judges and the public. Part II argues that 200 years later, a similar environment of isolation suppresses the stories of another group with undetermined legal status: asylum seekers. Although slave ship captives were forced into the country with chains, while asylum seekers are driven into the country by fear, the legal status of both groups in their respective time periods was undetermined upon their arrival. Both groups deserved, by legal and moral standards, the opportunity to present the truth behind their arrival and to prove their legal status. Part II argues that the detention of asylum seekers mirrors the isolation of the Antelope captives by removing detainees from those most able to help them develop a persuasive narrative truth. Detention silences important voices, aggravates ineffective representation, damages public perception, and ultimately harms case outcomes.Batson for Judges, Police Officers & Teachers: Lessons in Democracy From the Jury Box
In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine the legitimacy of these important civic institutions. It deepens mistrust between minority communities and the justice system and exacerbates the failures of a public education system already lacking accountability to minority students. But there is hope for rebuilding the trust, accountability and legitimacy of these civic institutions on behalf of minority citizens. There is one place where we have demonstrated a deeper commitment to our guarantee of democratic equality on behalf of minority citizens and exerted greater effort to that end than perhaps in any other domain of our civic life—the jury box. This paper recounts this important history and explores the political theory underlying the equal protection jurisprudence of jury selection. It then applies these lessons gleaned from the jury context to the constitutional defense of efforts to achieve greater racial diversity within the judiciary, law enforcement, and public education, all of which are as important to the legitimacy of our democracy today as the jury has been throughout American history.Vulnerability, Access to Justice, and the Fragmented State
This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for resistance, resilience, and justice. Focusing on problem-solving courts, and family courts in particular, the Article examines the intersection of human and institutional vulnerability within legal institutions and provides a framework for identifying ways to create greater access to justice. The Article contributes to state theory and the feminist theory of vulnerability, while providing a new way to understand and address an increasingly coercive state and its punitive effects on low-income people.The Case Against Police Militarization
We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization. This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is not that it brings about more violence or abuse of authority – though that may very well happen – but that it is based on a presumption of the citizen as a threat, while the liberal order is based on precisely the opposite presumption. A presumption of threat, we argue, assumes that citizens, usually from marginalized communities, pose a threat of such caliber that might require the use of extreme violence. This presumption, communicated symbolically through the deployment of militarized police, marks the policed community as an enemy, and thereby excludes it from the body politic. Crucially, the pervasiveness of police militarization has led to its normalization, thus exacerbating its exclusionary effect. Indeed, whereas the domestic deployment of militaries has always been reserved for exceptional times, the process of police militarization has normalized what was once exceptional.Fairness in the Exceptions: Trusting Juries on Matters of Race
Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the role of the jury and ultimately indicate that we trust juries to keep racism out of the courtroom in the exceptions to our normal procedures.“When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability
This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of color without disabilities or by White people with disabilities due to the intersection of their race and disability. Yet often our legal and cultural institutions have been reluctant to acknowledge the intersectional experience, preferring instead to understand people by a singular trait like their race, gender, or disability. While courts have recognized the validity of intersectional discrimination claims, they have offered little guidance on how to articulate and prove the claims, leaving compound and complex forms of discrimination unaddressed. This Article thus offers an analysis of how courts and litigants should evaluate claims of workplace discrimination based on the intersection of race and disability, highlighting in particular the experience of Black disabled individuals. Only by fully embracing intersectionality analysis can we realize the potential of antidiscrimination law to remedy the harms of those most at risk of being denied equal opportunity.
