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  • Protecting Native Americans: The Tribe as Parens Patriae

    This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when applying parens patriae standing to Tribes. Part IV briefly examines permissible defendants under Tribal parens patriae standing.

  • The Charleston Policy: Substance or Abuse?

    In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.

  • Foxes Guarding the Chicken Coop: Intervention as of Right and the Defense of Civil Rights Remedies

    This article focuses on the recent spate of cases in which educational institutions on the grounds that their race-conscious admissions policies are unconstitutional. The author analyzes the role of minority students and organizations who are the beneficiaries of those polices at the defendant institutions and their recent attempts to intervene in the lawsuits pursuant to Rule 24 of the Federal Rules of Civil Procedure. First, the author argues that under the traditional interpretation of Rule 24(a); intervention of right should be granted to minority students and organizations in the great majority of instances. Second, the author looks at the reasons that courts have denied intervention, analyzing both the rights and interests of the beneficiaries and the presumption that government parties provide adequate representation. Third, the author examines the conflicts between the interests and goals of defendant institutions and beneficiaries, noting the consequences of denying intervention. The author concludes by arguing that where the affirmative action admissions policies of educational institutions are challenged, district courts should embrace a practical presumption in favor of intervention for minority students and organizations

  • Sense and Nonsense: Standing in the Racial Districting Cases as a Window on the Supreme Court’s View of the Right to Vote

    Congressional redistricting draws the lines within which battles for political power will be fought. It is no surprise, therefore, that the redistricting process has long been the subject of social debate and legal dispute. The Supreme Court has not been able to resolve this dispute, in part, because the Justices have conflicting interpretations of the right to vote. While some Justices view voting as an individual right, others maintain that voting is correctly perceived as group right. This lack of consensus regarding the definition of the right to vote has led to a confusing articulation of the harm implicated by recent districting cases, and of the identification of which citizens can seek redress for that harm. In this Article, the Author provides an overview of modern standing doctrine and focuses on the Court's application (or non- application) in districting cases of the requirement that plaintiffs show an injury-in-fact in order to have standing to sue. It is noted that in recent districting cases, the Court has allowed standing for the type of generalized grievance for which the Court has consistently denied standing in other areas of law. This deviation from established standing doctrine is often criticized as nonsensical. The Author however, argues that this new standing doctrine can only be explained and understood, when limited to voting cases, as reflective of the individual justices' interpretations of the right to vote. The Author concludes that the atypical standing doctrine articulated in the recent districting cases underscores the need for the Court to develop and employ a richer conception of the right to vote that encompasses the goal of achieving a politically fair system.

  • Turning the Tide in the Civil Rights Revolution: Elbert Tuttle and the Desegregation of the University of Georgia

    Truth is sometimes stranger than fiction. So it was in 1960 when Elbert Tuttle became the Chief Judge of the United States Court of Appeals for the Fifth Circuit, the federal appellate court with jurisdiction over most of the Deep South. Part of the genius of the Republic lies in the carefully calibrated structure of the federal courts of appeal. One assumption underlying the structure is that judges from a particular state might bear an allegiance to the interests of that state, which would be reflected in their opinions. Forming panels of judges from each of several states is supposed to balance those interests, resulting in a less insular rule of law-one that reflects regional, not merely local, interests.

  • “Reverse Discrimination” and Higher Education Faculty

    In this Article, the author critiques the use of "reverse discrimination" claims by White plaintiffs to challenge the hiring of Blacks in institutions of higher education. The author argues that "reverse discrimination" is a myth since no such claim is possible when one White candidate is selected over another; assumptions of inferiority are implicit where such a claim is made when a Black candiate is selected over a White candidate. In other words, allowing such a claim, even if ultimately unsuccessful, implies a presumption of superiority on the part of the White candidate. For this reason, the author argues that it is improper to assume that "reverse discrimination" occurs any time a Black candidate is chosen over a White candidate. If both are equally qualifed, no such claim exists. The term "reverse discrimination" is not neutral in tone and therefore should not be treated as f it is neutral in application. The author concludes that institutions of higher education must not allow fears of unfounded "reverse discrimination" claims to prevent them from hiring, promoting, and granting tenure to Black faculty.

  • Law, Literature, and Contract: An Essay in Realism

    In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to lessen their formalistic nature to make contract rules more effective. Accordingly, the Article establishes that a law and literature analysis not only exposes flaws in the contract doctrine but demonstrates the need for a more flexible application of contract rules in cases involving race and gender disparity. Arguing that prejudicial behavior must be addressed and pre-empted in order to prevent its harmful effects in the formation of contracts, the Author again uses literature to develop a framework to remedy the biased conduct that leads to inequalities in contract formation.

  • Can Money Whiten? Exploring Race Practice in Colonial Venezuela and Its Implications for Contemporary Race Discourse

    The Gracias al Sacar, a fascinating and seemingly inconceivable practice in eighteenth century colonial Venezuela, allowed certain individuals of mixed Black and White ancestry to purchase "Whiteness" from their King. The author exposes the irony of this system, developed in a society obsessed with "natural" ordering that labeled individuals according to their precise racial ancestry. While recognizing that the Gracias al Sacar provided opportunities for advancement and an avenue for material and social struggle, the author argues that it also justified the persistence of racial hierarchy. The Article concludes that the Gracias al Sacar, along with their present-day implications, undermine an essentialist view of race, revealing the negotiability of race status and its dependence on social and material norms

  • Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of a “Naked Knife”

    Neither sovereignty nor property rights could forestall American geopolitical expansion in the first half of the nineteenth century. The conflicts that resulted from this clash of doctrine with desire are perhaps most evident in the history of the Chicanas/Chicanos of Texas, California, and the Southwest, who sought to maintain their land and property, as guaranteed by the Treaty of Guadalupe Hidalgo, in the aftermath of the U.S.- Mexico War. Integrating an exploration of case law with political and social histories of the period, the Author explores the sociolegal significance of Chicana/Chicano land dispossession; exposes the racial, economic, and political motivations of the legislators, judges, and attorneys involved; and demonstrates the internal incoherence of land grant doctrine. Focusing on the material relationship of the past to the present, the author seeks to establish linkages between the past roles of law and legal structures in dispossessing Chicanas/Chicanos of their land and their present roles in structuring Chicana/Chicano political and economic subordination in the agricultural sector. The author concludes that the study of Mexican land dispossession suggests both the need to expand the traditional approach to teaching property law as well as the importance of deploying the Treaty of Guadalupe Hidalgo and international law in the struggle for racial equity.

  • Who is Black Enough For You? An Analysis of Northwestern University Law School’s Struggle Over Minority Faculty Hiring

    This Article considers the factors that should be used in hiring a person of color to a faculty position and raises the following questions: Apart from potential teaching ability and scholarly productivity, should faculty appointments committees look to other criteria for candidates of color? Provided that we can still consider the race and ethnicity of prospective candidates of color at private institutions, should faculty appointments committees be concerned about how closely identified a candidate is to an essentialized conception, for instance, of Black persons? Should a faculty hiring committee focus its efforts to hire African Americans on a Black person who has ancestral roots in the American South, whose family has endured Jim Crow racism, who is very dark-skinned, whose family background is impoverished, and who grew up in an all-Black segregated environment? Stated conversely, should a faculty appointments committee hire a Black person who does not meet any of these essentialized characteristics? In confronting these issues, this Article calls. into question conceptions of race within mainstream U.S. society and among African Americans and other communities of color