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  • Ownership Without Citizenship: The Creation of Noncitizen Property Rights

    At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state constitutions, a significant number of which included property rights for noncitizens. Iowa, Wisconsin, California, and Michigan led the way, including these rights in their state constitutions prior to the Civil War. Through close examination of congressional debates, records of state constitutional conventions, and other historical texts, this Article places this significant legal reform in a broader historical context. Lawmakers succeeded in untethering notions of citizenship from notions of ownership, creating a more expansive vision of membership in the American polity. Property law was itself a form of immigration law, used not to expel migrants but rather to attract them and eventually, lawmakers hoped, to assimilate them as new Americans. The property reforms discussed here did not, however, result in property rights for all noncitizens; in fact, a majority of states today have some form of property restriction based on alienage. This Article suggests that an answer for the persistence of noncitizen property restrictions in American law lies in the nineteenth century. Reform efforts in this era held the seeds of restrictive policies that would develop later in the twentieth and twenty-first centuries, such as anti-Asian land laws and anti-illegal immigrant housing ordinances. Sources from the nineteenth century reveal that becoming “American” through property ownership was not a fully inclusive process; from the outset it was limited by assumptions about national origin, race and territorial location.

  • Race, Markets, and Hollywood’s Perpetual Antitrust Dilemma

    This Article focuses on the oft-neglected intersection of racially skewed outcomes and anti-competitive markets. Through historical, contextual, and empirical analysis, the Article describes the state of Hollywood motion-picture distribution from its anticompetitive beginnings through the industry's role in creating an anti-competitive, racially divided market at the end of the last century. The Article's evidence suggests that race-based inefficiencies have plagued the film distribution process and such inefficiencies might likely be caused by the anti-competitive structure of the market itself, and not merely by overt or intentional racial-discrimination. After explaining why traditional anti-discrimination laws are ineffective remedies for such inefficiencies, the Article asks whether antitrust remedies and market mechanisms mght provide more robust solutions.

  • Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court

    The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take legislative motivation more seriously in cases of persistent class discrimination. Finally, the Court cannot give sanction to any dominant group's view that the country's economic and social wealth belongs to them.

  • Racial Cartels

    This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values that depended not just on the superior quality of the housing stock but also on the racial composition of the neighborhood. Describing historical exclusion as anti-competitive cartel conduct highlights three aspects of discrimination that other descriptions obscure. First, compared to conventional theory, a racial cartel story emphasizes the material benefits - higher wages, higher property values, greater political power - that Whites derived from anti-competitive exclusion. Second, compared to individualist accounts, the cartel framework emphasizes the collective-action nature of historical discrimination. Third, calling historical exclusion cartel conduct can help to reframe antidiscrimination law as a type of antitrust legal intervention, designed to remedy persistent effects of past anti-competitive exclusion.

  • Wartime Prejudice Against Persons of Italian Descent: Does the Civil Liberties Act of 1988 Violate Equal Protection?

    Most people know that the United States interned persons of Japanese descent during World War II. Few people know, however, that the government interned persons of German and Italian descent as well. In fact, the internment was part of a larger national security program, in which the government classified non-citizens of all three ethnicities as "enemy aliens" and subjected then to numerous restrictions, including arrest, internment, expulsion from certain areas, curfews, identification cards, loss of employment, and restrictions on travel and property. Four decades after the war, Congress decided to compensate persons of Japanese descent who had been "deprived of liberty or property" by these restrictions. Congress has not, however, redressed the harm done to persons of German or Italian descent. This Note explores why Congress decided to distinguish between victims of Japanese and Italian descent, why the D.C. Circuit held that the distinction does not violate equal protection, and the potential impact of new historical evidence on both conclusions.

  • The Politics of Preclearance

    This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead to under-enforcement of the Act. Yet Congress chose not to act on those concerns while placing the Department of Justice at the center of its voting rights revolution. By and large, this is the way that the Supreme Court has understood the Department's role. Second, the currently available data do not support the charge that politics has played a central role in the Department's enforcement of its preclearance duties. This conclusion holds true for preclearance decisions up until the Clinton years. The data are ambiguous with respect to the Justice Department of President George W. Bush.

  • A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendants

    This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before the Nation moved to the political solution of a vote on tribal citizenship criteria. The exclusion of the Freedmen's descendants without such a dialogue may have high political and social costs to the Nation, its members, and its apparently former members. The dialogue this article proposes could be constructed along the lines suggested by sociologist Eva Garroutte, whose model of Radical Indigenism offers one means of considering these complex issues from within the Cherokee community itself.

  • Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church

    Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the question of whether such trials, so long after the events in question, serve any useful purpose.

  • Vultures in Eagles’ Clothing: Conspiracy and Racial Fantasy in Populist Legal Thought

    This Article has three interrelated aims. First, I will briefly describe the online world of the legal populists. My second aim in this Article is to give an account of legal populism that connects it with the American tradition of conspiracy theory and with the political consciousness of survivalism. My third and final aim in this Article is to examine, as David Williams has done in a wonderful series of articles, the relationship between the nation dreamed of by many legal populists and the one inhabited by state-sanctioned legal insiders.

  • Black Musical Traditions and Copyright Law: Historical Tensions

    This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence embodied copyright's clash with the Black musical tradition. Part VII portrays the history of the hip-hop musical phenomenon and illustrates how copyright's negative treatment of digital sampling continues to denigrate the Black musical tradition. Part VIII discusses the need for a more culturally inclusive copyright regime. Part IX concludes the Note by discussing the importance and benefits of amending the current copyright laws.