Previous issues of MJR&L are now available at the MLaw Journal Repository.
Volume 22.2 (Winter 2017)
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.
Volume 20.2 (Winter 2015)
Foreword: Reflections on Our Founding
Professor Guy-Uriel E. Charles ’96, Founder & Editor-in-Chief, Vol. 1
& Professor Luis E. Fuentes-Rohwer ’97, Founder & Executive Editor, Vol. 1
There Are No Racists Here: The Rise of Racial Extremism, When No One is Racist
Professor Jeannine Bell ’99
Founding Member; Book Review Editor, Vol. 4 CV
At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions
of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas —the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces—social media and employment where slurs and epithets may be used frequently. The final portion of the Article briefly explores two forms of unacknowledged racial violence—violence directed at minorities who move to white neighborhoods and extremist killings. Our inaccurate approach to bias-motivated crime and the culture of protection around racist expression, the Article concludes, leaves American society vulnerable to the danger created by racial extremists.
Trajectory of a Law Professor
Professor Meera E. Deo ’00
Editorial Board, Vol. 5 CV
Women of color are already severely underrepresented in legal academia; as enrollment drops and legal institutions constrict further, race and gender disparities will likely continue to grow. Yet, as many deans and associate deans, most of whom are white, step down from leadership positions during these tumultuous times in legal education, opportunities have arisen for women of color to fill those roles in record numbers. However, there are individual and structural barriers preventing access to the leadership level. Significant hurdles have long prevented women of color from entering law teaching. Thus, this Article provides evidence to support the thesis that ongoing changes in legal education will likely continue to create barriers both to entry and advancement for women of color law faculty members and those who aspire to join legal academia. This Article draws from quantitative and qualitative analyses of data drawn from the Diversity in Legal Academia (DLA) project, a landmark mixed-method study of law faculty diversity, which utilizes an intersectional lens to focus on the experiences of women of color in legal academia while also incorporating those of white men, white women, and men of color. Empirical findings reveal that structural barriers (i.e., outright discrimination) as well as more indirect obstacles prevent women of color from joining legal academia in meaningful numbers and also preclude women of color who are already legal academics from taking on leadership positions. Law school administrators and policy makers should work against these structural and individual barriers to increase and improve faculty diversity at all levels. Greater diversity in legal academia generally, and leadership in particular, will not only provide greater opportunities for particular law faculty members, but will also have a positive effect on law students, legal education, legal academia, and the legal profession overall.
Justice and Law Journals
Professor Gabriel “Jack” Chin ’88 CV
Professor Adam B. Wolf ’01
Editor-in-Chief, Vol. 6 CV
What is the role for a law journal in advancing justice? What is the 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.
Disparaging Trademarks: Who Matters
Professor Jasmine Abdel-Khalik ’00 CV
For more than a century, non-majority groups have protested the use of trademarks
comprised of or containing terms referencing the group—albeit for various reasons.
Under the 1946 Lanham Act, Congress added a prohibition against registering
disparaging trademarks, which could offer protection to non-majority groups
targeted by the use of trademarks offensive to members of the group. The prohibition
remained relatively unclear, however, and rarely applied in that context until a
group of Native Americans petitioned to cancel the Washington NFL team’s trademarks
as either scandalous, offensive to the general population, or disparaging,
offensive to the referenced group. In clarifying the appropriate test for disparaging,
however, the decision makers have overly analogizing the two prohibitions, rendering
the disparaging trademark prohibition less effective in protecting non-majority
groups from offensive trademarks.
Mainstreaming Equality in Federal Budgeting: Addressing Educational Inequities with Regard to the States
Elizabeth K. Hinson ’11
Executive Articles Editor, Vol. 16 CV
Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme will require Congress to acknowledge that poverty in the United States is not a mere set of behaviors and attitudes but is intricately linked to race and class.
Mainstreaming equality schemes require that public bodies assess the impact of their policies on equality of opportunity and monitor any adverse impact on the promotion of equality of opportunity. This Article describes how such a scheme would address disparities among students. Second, this Article argues that Congress should define beneficiary groups based on characteristics additional to socioeconomic status, including measures of cultural isolation and local tax revenue contributed to public education. Third, this Article establishes that a federal mainstreaming school funding scheme based on “layered disadvantage” and its multiplicative effects will both acknowledge and address long-time, covered attitudes about race, poverty and privilege in the United States and the ways in which those attitudes continue to enforce a paralyzed outcome, especially for African American students within public schools. Finally, by examining mainstreaming equality models implemented in the European Union, this Article considers in detail the methodology for conducting mainstreaming equality within a federal school funding scheme as implemented by Congress with respect to the individual states.
Functionally Suspect: Reconceptualizing “Race” as a Suspect Classification
Professor Lauren Sudeall Lucas CV
In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society.By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies.
The Keyes to Reclaiming the Racial History of the Roberts Court
Professor Tom I. Romero II ’00 CV
This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.
The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States— legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity.
The Article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black-
White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer accurately describe the current reality of shifting and trans-
forming patterns of race relations in the United States.
In order to reclaim the history of race from the Roberts Court, the Article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first SupremeCourt case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyes and the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.