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Justice and Law Journals
What is the role for a law journal in advancing justice? What is the role of a justice-minded practitioner in furthering legal scholarship? And what is the intersection—practically and normatively—for law journals, legal scholars, practitioners, and justice? This brief Article attempts to lay a foundation for answering these important, but oft-neglected, questions. In the following conversation, a frequent contributor to the Michigan Journal of Race & Law (MJRL) and a former Editor-in-Chief of the Journal posit some ideas on how legal scholarship engages with justice, and how race-conscious practitioners can interact with race-conscious legal scholars.Jordan Davis’ Killer Sentenced to Life
By: Lauren Tortorella, Associate Editor Vol. 20 In November 2012, Michael Dunn shot and killed Jordan Davis, 17. Three other passengers were injured. Dunn shot the teenagers after an argument over loud music. Dunn was convicted of first-degree murder for shooting Davis, and three counts of attempted murder. On October…How Critical Race Theory Marginalizes the African American Christian Tradition
This Article offers the first comprehensive account of the marginalization of the African American Christian tradition in the movement of race and law scholarship known as critical race theory. While committed to grounding itself in the perspectives of communities of color, critical race theory has virtually ignored the significance of the fact that the civil rights movement came out of the Black church and that today more than eighty percent of African Americans self-identify as Christian. In practical terms, critical race theory’s neglect of the Christian tradition has meant that arguments developed in race and law scholarship are sometimes incompatible with the deeply religious normative frameworks that many Black Americans bring to bear on issues of law and justice. As a result, there is a significant disconnect between race and law scholarship and the comprehensive normative commitments of the community whose concerns that scholarship seeks to address. By offering the first comprehensive account of this disconnect, this Article supplies an important foundation for scholars who wish to close the gap between race and law scholarship and the larger African American community.In the News: Skin Tone Memory Bias
A new study by researchers at San Francisco State University finds evidence of skin tone memory bias. Student participants instructed to make a mental association between a picture of an African-American man and the word “educated” tended to misidentify the man on later memory tests as having a lighter skin…Towards a Balanced Approach for the Protection of Native American Sacred Sites
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a "substantial burden" under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit's definition of "substantial burden" is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of "substantial burden," the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands.Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard at the commencement of litigation, evaluating the plausibility of claims before discovery - before evidence has been gathered and presented. This highly subjective pleading standard applies to all claims, including claims of discrimination by members of stereotyped groups. In short, under Iqbal, federal courts must grapple at the inception of litigation with deciding whether members of stereotyped groups have pleaded plausible claims of discrimination, relying on their intuitions and common sense, rather than evidence. The nature of this new pleading standard raises pressing and profound questions about the psychology of judging: Might Iqbal rest on a flawed theory of judgment and decision making? Can judges draw on common sense, rather than evidence, to adjudicate claims of discrimination by members of stereotyped groups without the subtle effect of implicit bias? This Article sheds light on these questions by drawing on social psychological research. From findings in the field of social psychology, the Article first forms hypotheses and then conducts an empirical legal study that closely examines how federal courts have adjudicated motions to dismiss Black plaintiffs' claims of race discrimination.Revolutions in Local Democracy? Neighborhood Councils and Broadening Inclusion in the Local Political Process
Political marginalization of minorities and government corruption are two key factors that have led to the overwhelming decline and decay of America's major cities. Local governments must combat the historical entrenchment of these two evils in order to reverse the trend toward demise. Neighborhood councils may be the best structural changes to local government because they provide more meaningful opportunities for political engagement of minority groups, while also serving as an antidote to systemic corruption in local government. This Essay analyzes the problems plaguing local government in urban cities and explores how neighborhood councils may be able to help address them.Racial Cartels
This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values that depended not just on the superior quality of the housing stock but also on the racial composition of the neighborhood. Describing historical exclusion as anti-competitive cartel conduct highlights three aspects of discrimination that other descriptions obscure. First, compared to conventional theory, a racial cartel story emphasizes the material benefits - higher wages, higher property values, greater political power - that Whites derived from anti-competitive exclusion. Second, compared to individualist accounts, the cartel framework emphasizes the collective-action nature of historical discrimination. Third, calling historical exclusion cartel conduct can help to reframe antidiscrimination law as a type of antitrust legal intervention, designed to remedy persistent effects of past anti-competitive exclusion.The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”
In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. The Note further hypothesizes that this lack of executions created the policy space for legislative abolition. The Note then explores the effect that New Jersey's abolition might have on capital punishment in other states, as well as the potential influence of state-level abolition on the United States Supreme Court's evaluation of the constitutionality of the death penalty.Determining the (In)Determinable: Race in Brazil and the United States
In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one's physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent-the presence of one African ancestor defines an individual as Black-determines an individual's "Blackness" in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one's physical appearance is determinative. Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one's physical appearance is the primary determinant of Blackness in both American nations. Indeed, one's ancestry is necessarily implicated in determining race based on “physical appearance," as this method of classifying race is grounded in socially mediated presumptions concerning how an individual's physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.
