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Volume 22.2 (Winter 2017)

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A Modest Memo by Yxta Maya Murray

A MODEST MEMO is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Pen ̃a Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim to show how the rule of law may so easily buckle and splinter beneath the increasing tide of United States, as well as global, nationalism and racism. I take inspiration, of course, from Jonathan Swift’s A MODEST PROPO- SAL (1729), as well as the legal-literary experiments found in DERRICK BELL’S FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1993) and Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989)


Executive Disorder: The Muslim Ban, Emergency Advocacy, and the Fires Next Time by Abed Ayoub and Khaled Beydoun

On January 27, 2017, one week into his presidency, Donald Trump en- acted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Mus- lims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear and hysteria among immigrant and citizen Mus- lim populations within the country. This Essay memorializes the advocacy taken by the authors in the immediate wake of the Muslim Ban, highlighting the emer- gency legal and grassroots work done by the authors during a moment of national disorder and disarray, and within Muslim American communities, mass confusion and fear.

This Essay highlights efforts, coalition building, and the necessary resources that contributed to the effective defense and education of impacted Muslim popula- tions. It further examines the heightened vulnerabilities of and compounded inju- ries to often-overlooked Muslims at the intersection of race and poverty, as a consequence of Islamophobic policies such as the Muslim Ban.

The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias by Leonard M. Niehoff and Deeva Shah

The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amend- ment jurisprudence.

The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts to compete with each other for acceptance. The theory maintains that the best ideas and the most reliable information will emerge and prevail. The well-informed elec- torate that results from this process will then make better decisions in our par- ticipatory democracy.

During the 2016 presidential election, however, it became apparent that a number of statements made by then-candidate Donald Trump proved difficult to rebut in the public dialogue, even though they were clearly and demonstrably false. Of particular concern, some of those statements fed into biases against and stereo- types of racial, ethnic, and religious minorities and women. This disinformation stubbornly resisted efforts at correction.

This Article discusses the marketplace of ideas model and its underlying assumptions about how human beings process information and make decisions. It then proceeds to explain, through recent social science research, why the dynamic envisioned by the marketplace of ideas theory often fails to provide an effective counter-narrative to statements that reinforce racial, ethnic, religious, and gender biases and stereotypes. The Article concludes with some necessarily preliminary and exploratory thoughts about potential curative measures.

Legacy in Paradise: Analyzing the Obama Administration’s Efforts of Reconciliation with Native Hawaiians by Troy J.H. Andrade

This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these militarized systems, and their effects, from an outside-in perspective, paying particular attention to the racial, societal, economic, and geographic factors that play into the public perception of these new policing regimes. I will conclude by proposing potential solutions to this problem that incorporate tests for racial bias to create an alternative system that follows a true community policing model

“Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives by James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.


Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement by Lauren Latterell Powell

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democ- racy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the large- scale effort to disenfranchise African Americans during Reconstruction, and identi- fying ways in which the racism of the past reverberates through practices of disen- franchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.