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  • Challenging the Bounds of Education Litigation: Castaneda V. Regents and Daniel V. California

    This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to probe the rigid contours of school "finance" reform litigation and the overly formal conceptions of race-based preferences that pervade discourse about affirmative action, the author argues that these cases provide promising examples of the ways in which advocates for diversity in higher education may capitalize on the political will of the people and the structure of the state system of public education to advance an agenda that simultaneously improves secondary education while diversifying institutions of higher education. Although this Note concentrates on two cases from California, it fundamentally concerns what advocacy for educational equity will look like throughout the country for the next generation of students of color and of economically disadvantaged students. These cases, though born of the particularities of California's state education system, do not embrace strategies unique to California. Rather they are harbingers of a promising nationwide trend.

  • The Plight of “Nappy-Headed” Indians: The Role of Tribal Sovereignty in the Systematic Discrimination Against Black Freedmen by the Federal Government and Native American Tribes

    This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations between Native Americans and Freedmen. Part III discusses the roles that Congress, executive agencies, and the courts must take to halt and reverse the discriminatory practices that have stripped Freedmen of their rights and privileges as members of Native American communities.

  • Abandoning the PIA Standard: A Comment on Gila V

    Part I of this Note examines the development of Indian reserved water rights, and the practicably irrigable acreage method of quantifying those rights, as defined by the Court. Part II describes the arguments of state and private interests that oppose broad Indian water rights. Part III discusses Gila V, including the Arizona Supreme Court's rationale for abandoning the standard set forth by the U.S. Supreme Court and the standard for quantifying Indian reserved rights that the court applied in its place. Part IV analyzes the Arizona Supreme Court's justifications for abandoning the standard, and considers alternate grounds for the decision. Ultimately, this Note concludes that the Arizona Supreme Court misinterpreted precedent and wrongfully rejected the standard established by the U.S. Supreme Court in Arizona I and Arizona II. Thus, Gila V should be viewed as an abrogation of the established standard for defining Indian water rights and not serve as precedent.

  • Land and Liberation: Lessons for the Creation of Effective Land Reform Policy in South Africa

    Based upon the premise that land reform is essential to creating socio-economic equality, easing racial tensions and stemming the tide of violence in South Africa, this note will provide suggestions for effective land reform policy. To accomplish this, this Note will examine the paths taken by several other transitional African governments in land reform policy. It will attempt to extract practical lessons from their experiences and apply them towards the development of effective land redistribution policy in South Africa. Part I of this note will provide a historical overview of colonialism and land law in Africa. Part II will examine the postcolonial land reform policy in Kenya, Tanzania and Zimbabwe and part III will attempt to extract lessons from the experiences in these countries. Part IV will seek to apply these lessons towards the development of effective land reform policy in South Africa. Finally, Part V will again stress the need for land reform as a means of creating economic equity and racial harmony.

  • Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court

    This note will explore the treatment of the two primary violent sexual acts, rape and forced pregnancy, in modern international criminal law; more specifically in its treatment as genocide. The woman as an individual is the primary sufferer of sexual violence during armed conflict, however sexual violence is a calculated means by which perpetrators seek to destroy an entire ethnic group. Sexual violence is both an attack against the woman and an attack against the ethnic group, and should be prosecuted as such. While crimes against individuals are best prosecuted as crimes against humanity or under domestic law, crimes committed against ethnic groups, separate from the individual underlying act, should be prosecuted as genocide.

  • Striking a Sincere Balance: A Reasonable Black Person Standard for “Location Plus Evasion” Terry Stops

    Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and the Court's "raced" decision to find reasonable and articulable suspicion. Part two will discuss and compare the reasonable Black person standard with analogous alternative reasonable person standards in sexual harassment and criminal law. Part three will anticipate and rebut potential criticisms of the proposed standard.

  • Purchasing While Black: How Courts Condone Discrimination in the Marketplace

    Given the sweeping language of § 1981 and 1982, it cannot be that sellers of goods can engage in intentional discrimination, so long as they make relatively minor attempts to cover it up. By exploring the interaction between substantive law, procedural law, legal culture, and real-world context, Graves seeks to demonstrate that judges cannot offer any legal or practical justification for heightened pleading requirements in § 1981 and 1982 actions. Through this argument, a conclusion is reached that § 1981 and 1982 plaintiffs must be given the same opportunity to litigate their claims that virtually all other plaintiffs are given. While this conclusion might seem basic, it is currently being ignored in many courtrooms across this country. The overwhelming majority of literature in the field makes the case against heightened pleading requirements by arguing that these requirements violate the Federal Rules of Civil Procedure. The impropriety of heightened pleading requirements under the Federal Rules, however, is not the final deduction in an argument against heightened pleading requirements; it is a starting point. Once we understand that heightened pleading requirements violate the Rules, we can ask why judges continue to impose them. We can, thus, attack the principles underlying judges' decisions to impose heightened pleading requirements.

  • The Tension Between the Need and Exploitation of Migrant Workers: Using MSAWPA’s Legislative Intent to Find a Balanced Remedy

    This Comment concludes that the recent Maine federal district cases represent an irreconcilable spike in a national and international trend to afford more protection to a vulnerable class whose resources are the object of urgent demand. However, the search for a proper remedial weight in the balance between migrant worker protection and the provision of competitive farm labor is not a new problem.

  • To Yick Wo, Thanks for Nothing!: Citizenship for Filipino Veterans

    In this Note, the Author uses science fiction novelist Robert Heinlein's model of citizenship as an analytical framework for examining the historical treatment of Filipino veterans of World War II. The Author Heinlein's conception of citizenship in Starship Troopers was one in which a person can acquire citizenship only through a term of service in the state's armed forces. Similarly, the United States provided immediate eligibility for citizenship to World War II era foreign veterans, but it effectively excluded Filipino veterans from this benefit. The Author examines how the plenary power doctrine in immigration law, has quashed legal challenges by Filipino veterans and created a structural imbalance that not only allows but encourages similar inequities. The Author also notes that while Congress has enacted remedial legislation, this delayed conferral of citizenship without accompanying veteran's benefits is both inadequate and incomplete. Accordingly, the Author suggests that the plenary power doctrine, in the context of the Filipino veterans, must give way to textual reading of the U.S. Constitution which places an express limit of geographic uniformity in the area of naturalization. Drawing from the use of reparations in immigration policy, the Author recommends that further legislative remedies be enacted to ensure that Filipino veterans and their descendants are provided a fair and equitable remedy for their service to the United States.

  • Listen

    In a traditional law school setting, experiences of students of color, especially Native Americans, are often buried by the discourse of the dominant culture. This piece, a non-traditional work using elements of prose, lyric, monologue, and poetry, weaves strands of legal discourse, commentary, and autobiography into a critical narrative of the experience of legal education from an outsider law student's perspective. The author, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, recounts these vignettes in a voice infused with the history and traditions of Native American oral storytelling.