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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.

  • Habermas, the Public Sphere, and the Creation of a Racial Counterpublic

    In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings allowed the bourgeoisie to use their reason to determine the boundaries of public and private and to self-consciously develop the public sphere. As Habermas writes, “[t]he medium of this political confrontation was . . . people’s public use of their reason.” The bourgeois public didn’t simply participate, but it did so both directly and critically. The development of the bourgeois public as a critical, intellectual public took place in coffeehouses, in salons, and table societies. In Great Britain, Germany, and France, particularly, the coffeehouses and the salons “were centers of criticism—literary at first, then also political—in which began to emerge, between aristocratic society and bourgeois intellectuals, a certain parity of the educated.” Intellectual equals came together and deliberated, an equality that was key in ensuring the requisite openness and deliberation. No one person dominated the discussion due to his status within the deliberative community. Instead, and above all else, the “power of the better argument” won out. Two conditions were critical to these deliberations. First, equality was key to the public sphere. Membership in the public sphere meant that no one person was above the other and all arguments were similarly treated and scrutinized. Second, the principle of universal access was crucial.8The doors of the deliberative space were open to all comers and no group or person was purposefully shut out. Seen together, these two conditions provide a blueprint for deliberative practices in a democratic society.

  • Breastfeeding on a Nickel and a Dime: Why the Affordable Care Act’s Nursing Mothers Amendment Won’t Help Low-Wage Workers

    As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns to employers to determine the details of the accommodation provided, make it likely that class- and race-inflected attitudes towards both breastfeeding and women’s roles will influence employer (and possibly judicial) decisions in this area. Examining psychological studies of popular attitudes towards breastfeeding, as well as the history of women’s relationships to work, this Article concludes that both are likely to negatively affect low-income women seeking accommodation under the Act, perhaps especially those who are African-American. In short, the new law could lead to a two-tiered system of breastfeeding access, encouraging employers to grant generous accommodations to economically privileged women and increasing the social pressure on low-income women to breastfeed, without meaningfully improving the latter group’s ability to do so.

  • Coercive Assimilationism: The Perils of Muslim Women’s Identity Performance in the Workplace

    Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and antidiscrimination literature, this Article argues that in order for courts to keep up with discrimination they should expansively interpret Title VII to address identity-based discrimination rooted in negative implicit stereotypes of low status groups. In doing so, the Article brings to the forefront Muslim women’s identity performance at the intersection of religion, race, gender, and ethnicity—a topic marginalized in the performativity literature. I argue that Muslim female employees at the intersection of conflicting stereotypes and contradictory identity performance pressures associated with gender, race, and religion are caught in a triple bind that leaves them worse off irrespective of their efforts to accommodate or reject coercive assimilationism at work.

  • 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.

  • States Taking Charge: Examining the Role of Race, Party Affliation, and Preemption in the Development of in-state tuition laws for undocumented immigrant students

    Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state tuition policies; and (4) party affiliation of governors and in-state tuition policies. Part IV describes the concept of preemption and discusses the extent to which preemption has impacted the state statutes identified in Part II of this Article. Finally, Part V discusses the practical and normative implications of this research.

  • The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings

    The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of over-sight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive— consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.

  • It’s Critical: Legal Participatory Action Research

    This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, and critical race feminism by advocating legal PAR as a form of critical race/feminist praxis, which we employ, specifically, to address the ways in which race and gender remain inextricably linked to poverty and ever-widening economic inequalities and disparities. To demonstrate how legal PAR works in practice, we describe in this Article a local, community-based research project on predatory lending practices that we undertook from fall 2012 through summer 2013 in partnership with Public Allies Cincinnati, an AmeriCorps program whose goal is to identify, develop, and train a new “generation” of diverse community leaders and organizers. Further, we explain in this Article how and why our ongoing community-based research is grounded in theoretical commitments and values represented by critical race/feminism and the established, interdisciplinary field of participatory action research. Finally, we examine and reflect upon the challenges and benefits involved in doing legal PAR—both in practical and theoretical terms—in the context of our specific project, in the hopes that interested legal researchers, scholars, teachers, students, and activists will be inspired to develop legal PAR research projects of their own.

  • From Arbitrariness to Coherency in Sentencing: Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars

    Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on the sentencing systems in the United States and Australia. The suggested changes would result in a considerable reduction in incarceration numbers, lower crime, and a reduction in the expenditure on prisons. The key concrete recommendations of this Article are that the criminal justice system should move towards a bifurcated system of punishment, reserving imprisonment mainly for serious sexual and violent offenses and reducing the terms of imprisonment in general.

  • The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”

    This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.