Volume 26.1 (Fall 2020)
Content titles below link to full text on the MLaw Scholarship Repository.
Race-Based Discrimination in U.S. Immigration Policy
“We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach to Remedying the Trump Administration’s Cancellation of TPS Protections for Haitians
Article by Sarah E. Baranik de Alarcón, David H. Secor, and Norma Fuentes-Mayorga
This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the TPS decision-making process, the Trump Administration’s openly racist comments against Haitians and other people of color before and during the decision-making process to cancel TPS, and the departure from the established administrative process for TPS cancellation. The Article then reviews the legal challenges against TPS cancellation and the arguments that the decision violated the Equal Protection Clause and how such efforts reveal the limitations of litigation as a tool to achieve social justice.
Looking towards the future, this Article discusses reparations and remittances as creative ways to repair some of the damage wrought by the United States’ history of racial discrimination in immigration and foreign policy against Haitians. Specifically, this Article explores three solutions: (1) recognizing the harms caused specifically to Haitians by the United States’ exclusionary foreign affairs and immigration policies; (2) using material and non-material forms of reparations, including extending TPS, offering a pathway for citizenship for TPS holders, or offering Haitian TPS recipients benefits to public programs; and (3) valuing the role remittances play in affirming Haitians’ autonomy and working towards eroding decades of imperialistic treatment of Haitians.
◊ ◊ ◊
The Soul Savers: A 21st Century Homage to Derrick Bell’s Space Traders or Should Black People Leave America?
Article by Katheryn Russell-Brown
Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule of law and racial progress. The year 2020 marks the thirty-year anniversary of Bell’s initial iteration of the Space Traders tale.
◊ ◊ ◊
Predicting Supreme Court Behavior in Indian Law Cases
Article by Grant Christensen
This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian interest, that trend is generally weak with considerable variance from Justice to Justice. Finally, the article then creates a logistic regression model in order to try to predict whether a pro-Indian outcome is likely to prevail at the Court. It finds six potential variables to be statistically significant. It uses quantitative analysis to prove that the Indian interest is more likely to prevail when the Tribe is the appellant, when the issue is framed as a jurisdictional contest, and when the case arises from certain regions of the country. It suggests that Indian law advocates may use these insights to help influence litigation strategies in the future.
◊ ◊ ◊
Diversity & Inclusion in Legal Education
#ForTheCulture: Generation Z and the Future of Legal Education
Article by Tiffany D. Atkins
Generation Z, with a birth year between 1995 and 2010, is the most diverse generational cohort in U.S. history and is the largest segment of our population. Gen Zers hold progressive views on social issues and expect diversity and minority representation where they live, work, and learn. American law schools, however, are not known for their diversity, or for being inclusive environments representative of the world around us. This culture of exclusion has led to an unequal legal profession and academy, where less than 10 percent of the population is non-white. As Gen Zers bring their demands for inclusion, and for a legal education that will prepare them to tackle social justice issues head on, they will encounter an entirely different culture—one that is completely at odds with their expectations. This paper adds depth and perspective to the existing literature on Generation Z in legal education by focusing on their social needs and expectations, recognizing them as critical drivers of legal education and reform. To provide Gen Z students with a legal education that will enable them to make a difference for others—a need deeply connected to their motivators and beliefs—law school culture must shift. Reimagining, reconstituting, and reconfiguring legal education to create a culture of inclusion and activism will be essential and necessary. Engaging in this work “for the culture” means getting serious about diversifying our profession by abandoning exclusionary hiring metrics, embedding social justice throughout the law school curriculum, and adopting institutional accountability measures to ensure that these goals are met. Gen Zers are accustomed to opposing institutions that are rooted in inequality; law schools can neither afford, nor ignore the opposition any longer. We must begin reimagining legal education now—and do it, for the culture.
◊ ◊ ◊
Racial Wealth Gap
How to Sue an Asue? Closing the Racial Wealth Gap Through the Transplantation of a Cultural Institution
Article by Cyril A.L. Heron
Asues, academically known as Rotating Savings and Credit Associations (or ROSCAs for short), are informal cultural institutions that are prominent in developing countries across the globe. Their utilization in those countries provide rural and ostracized communities with a means to save money and invest in the community simultaneously. Adoption of the asue into the United States could serve as the foundation by which to close the racial wealth gap. Notwithstanding the benefits, wholesale adoption of any asue model runs the risk of cultural rejection because the institution is foreign to the African American community.
Drawing upon principles of cultural and legal transplantation, successful transplantation of cultural institutions is possible where parameters that provide contextual stability are put in place. Given that the most prominent drawback to ROSCAs is the risk of default and embezzlement, the contextual stabilizer to prevent cultural rejection should be one that secures the ROSCA from said default and nefarious members. Therefore, I propose that trust law can be that context stabilizer because it would provide legal recourse and mitigate the inherent risks involved in asue participation.
◊ ◊ ◊
Thirteenth Amendment Litigation in the Immigration Detention Context
Article by Jennifer Safstrom
This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.
◊ ◊ ◊
The Scales of Reproductive Justice: Casey’s Failure to Rebalance Liberty Interests in the Racially Disparate State of Maternal Medicine
Article by Mallori D. Thompson
Despite the maternal medicine crisis in the U.S., especially for Black women, legislatures are challenging constitutional abortion doctrine and forcing women to interact with a system that may cost them their lives. This Article proposes that because of abysmal maternal mortality rates and the arbitrary nature of most abortion restrictions, the right to choose an abortion is embedded in our Fourteenth Amendment right to not be arbitrarily deprived of life by the State. This Article is a call to abortion advocates to begin submitting state maternal mortality data when challenging abortion restrictions. The call for attention to life was central to the holding in Roe v. Wade and is central to rebalancing the scales of reproductive justice.