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When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies
The author proposes that in an ongoing debate on questions concerning the possibility of racial or other types of invidious discrimination by public institutions, we should apply a prima facie standard to these claims in the public arena. In other words, if African Americans or Latinos say that they have been the victims of racial profiling, we should not ask for conclusive proof in the strictest statistical sense; rather, if they can present some credible evidence beyond anecdotes, some statistics that indicate that we may, indeed, have a problem, the burden should then shift to the public institution-here, law enforcement agencies-to collect the information necessary to either confirm or dispel the perception that a problem exists. This seems an important ingredient to the proper understanding and resolution of societal policy arguments and disagreements, especially when the governmental action alleged has such dire consequences for the individuals affected and for the integrity and legitimacy of the institutions themselves. When public confidence in our most vital institutions of government is undermined, as is clearly already happening with racial profiling, we ought not be satisfied with the declaration that conclusive proof is not available, especially when access to that proof is in every way controlled by the institutions accused of wrong doing. Instead, when victims present a prima facie case, the burden should shift to the government to show that its conduct is above reproach. Only that type of standard for our public debate on such crucial issues can ensure the legitimacy of our public institutions.Identity Crisis: “Intersectionality,” “Multidimensionality,” and the Development of an Adequate Theory of Subordination
This Article arises out of the intersectionality and post-intersectionality literature and makes a case against the essentialist considerations that informed the Human Rights Campaign's endorsement of United States Senator Alfonse D'Amato. Part I discusses the pitfalls that occur when scholars and activists engage in essentialist politics and treat identities and forms of subordination as conflicting forces. Part II examines how essentialism negatively affects legal theory in the equality context. Part III considers the historical motivation for and the efficacy of the "intersectionality" response to the problem of essentialism. Part III also extensively analyzes the "multidimensional" critiques of essentialism offered by the most recent school of thought in this area-the race-sexuality critics of law and sexuality and critical race theory. Finally, Part III examines the conceptual and substantive distinctions between multidimensionality (and other post-intersectionality theories) and intersectionality and offers suggestions for future theorizing in anti-subordination jurisprudence.Puerto Rico, Puerto Ricans, and Latcrit Theory: Commonalities and Differences Between Latina/o Experiences
This Essay situates Professor Malavet's analysis in LatCrit theory. The diminished citizenship status of Puerto Ricans on the island shares important commonalities with and differences from the experiences of persons of Mexican ancestry in the United States. Both Mexican Americans and Puerto Ricans enjoy citizenship and membership rights unequal to those accorded Anglos, although one group (Mexican Americans) is composed of citizens by law with full legal rights while the other (Puerto Ricans) includes United States citizens with limited legal rights in Puerto Rico. The guarantees of the law historically have held limited meaning for Mexican Americans; the limitation on the legal rights of United States citizens on Puerto Pico hold great significance. Law thus proves malleable depending on the social context and, not coincidentally, accords Latinas/os in both contexts diminished membership rights.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.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.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 Content of Our Characterizations
This essay suggests both further amplification of Yamamoto's guidelines for critical race praxis and, more importantly, recommends their application to the analysis and development of progressive race theory itself.Facing History, Facing Ourselves: Eric Yamamoto and the Quest for Justice
Review of Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America by Eric YamamotoTransnational Critical Race Scholarship: Transcending Ethnic and National Chauvinism in the Era of Globalization
Eric Yamamoto's article, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, brings a needed perspective to scholarship seeking to place domestic social justice struggles within the context of a broader and more complex mix of forces at play. While Yamamoto does not highlight a critical transnational perspective in this particular article, he writes from a perspective that presumes transnational analysis is essential in making sense of the socio-economic and political forces affecting our lives as individuals and members of multiple, intersecting communities. The local, the national, and the international are inextricably bound and present in all his work. This article, as well as his larger body of works, helps puncture the self-satisfied attitude of American national exceptionalism, or superiority, that now so crudely bestrides the world.
