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  • Making a Buck While Making a Difference

    It is not right for children to die before their parents. It is not right for peaceful, unarmed citizens to die at the hands of the police. In my civil rights practice, I have met many mothers, fathers, and family members who are struggling to recover after a law enforcement officer caused the death of their loved one. Sure, they want fair compensation. But money does little to reduce their loss or make the grief more bearable. They often want to do something that will ensure that their loved one did not die in vain. They want to prevent other families from suffering the same loss. This Article will show that even without standing to seek injunctive relief, these plaintiffs can indeed secure significant reform. This Article will also share suggestions for the practitioner on how to litigate these cases economically and efficiently. Part I explores avenues for relief other than compensatory and punitive damages. Part II shares language to include in retainer agreements to encourage clients to share any settlement they reach with the public to increase awareness of police misconduct. Part III explains that researching local police policies and practices helps to inform where meaningful opportunities for reform exist. Part IV then provides examples of resolutions that require the officers involved and their supervisors to personally engage with the victims’ families or that commemorate victims in their respective communities. Finally, Part V reviews techniques for case selection, case theory, and working within a budget so the small office practitioner can make enough money to carry the work forward.

  • Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice Law

    No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public benefits to immigrants unlawfully present through an affirmative enactment of state law. Current scholarship surrounding this issue has primarily focused on public policy implications. This Note sets out to answer the question of whether 8 U.S.C. § 1621 generally precludes states from issuing law licenses to undocumented immigrants, and if so, how a state may circumvent that prohibition. First, this Note addresses the threshold question of whether a law license is a public benefit under the federal statute. Contrary to the argument put forward by the Committee of Bar Examiners of the State Bar of California, I argue that the most straightforward reading of the statute includes law licenses within the category of prohibited public benefits. Second, this Note explores how a state could use the statute’s savings clause to provide law licenses to undocumented immigrants. By requiring an affirmative enactment of state law, Congress likely had in mind legislative enactments. I argue, however, that in the realm of bar admission where state supreme courts have plenary power to set requirements, a court rule allowing for eligibility of undocumented immigrants should be sufficient to trigger the statute’s savings clause.

  • Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination

    Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard at the commencement of litigation, evaluating the plausibility of claims before discovery - before evidence has been gathered and presented. This highly subjective pleading standard applies to all claims, including claims of discrimination by members of stereotyped groups. In short, under Iqbal, federal courts must grapple at the inception of litigation with deciding whether members of stereotyped groups have pleaded plausible claims of discrimination, relying on their intuitions and common sense, rather than evidence. The nature of this new pleading standard raises pressing and profound questions about the psychology of judging: Might Iqbal rest on a flawed theory of judgment and decision making? Can judges draw on common sense, rather than evidence, to adjudicate claims of discrimination by members of stereotyped groups without the subtle effect of implicit bias? This Article sheds light on these questions by drawing on social psychological research. From findings in the field of social psychology, the Article first forms hypotheses and then conducts an empirical legal study that closely examines how federal courts have adjudicated motions to dismiss Black plaintiffs' claims of race discrimination.

  • ¡Silencio! Undocumented Immigrant Witnesses and the Right to Silence

    At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report crime or participate in local prosecutions, is a potent and defensible act of civil disobedience by the estimated twenty-two million imigrants in this country with anything less than full-citizenship status. There is a growing body of empirical evidence showing that local immigration enforcement leads to racial profiling, is unjustifiably expensive for local crime-fighting budgets, and results in the local immigrant population simply deciding not to call the police for any reason at all. This Article takes those arguments one step further, contending that immigrant communities can take matters into their own hands and protect themselves by choosing silence as an organized response to a regime that has rendered local police a threat, not a support, to millions of people within our borders. A commitment to silence by the immigrant community will lend a sense of urgency to these protests and spur real action from local law enforcement officials who appreciate the dangers of prioritizing immigration enforcement over community safety for all residents, citizen and noncitizen alike.

  • Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis

    This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth Amendment.

  • Toward an Understanding of Judicial Diversity in American Courts

    Part I of this Article explores the utility of descriptive representation as an important concept in understanding why judicial diversity matters from a political perspective. Part II begins an empirical examination of judicial diversity at the federal level while Part III presents an analysis of state court diversity. The data presented in Parts II and III indicate that judges of color are underrepresented at all levels of the federal and state court systems and that particular racial and ethnic groups are virtually excluded from federal and state benches. The conclusion argues that the data presented in this Article support a disquieting portrait that erodes the myth of progress toward the attainment of a multiracial and multiethnic American judiciary.

  • Breaking Into The Academy: The 2002-2004 Michigan Journal of Race & Law Guide for Aspiring Law Professors

    Guidance for individuals interested in becoming law professors.

  • Lawyering for Social Change: What’s a Lawyer to Do?

    This article analyzes two questions that are raised by Professor Yamamoto's provocative article. Part I argues that any significant transformation of the social structure of United States society is far more likely to occur through mass political movements than through litigation. Consequently, advocates of social change, especially those trained in law, should not expect too much reform from the courtrooms. They instead should consider how traditional legal action might complement and encourage-not replace-community activism and political involvement. Put simply, an exclusive focus on litigation will not accomplish fully the desired objective. Part II contends that attorneys' ethical duties to their clients limit lawyers' ability to shape the world in the ways they see fit. The constraints increase considerably after the attorney agrees to represent the client. At that point, she must zealously pursue the case in a way that furthers the client's best interests. The attorney primarily must represent the client, although she does have control over how to conduct that representation and may be able to shape the client's case in important ways. Combining these two points, I contend that the potential for social change through litigation is limited, and that the discretion of attorneys to promote change through traditional legal remedies is similarly constrained. Consequently, visionaries advocating social change must look well beyond these limited horizons.

  • Expert Report of Robert B. Webster

    The author’s opinions are based primarily upon knowledge and insight gained in the forty years in which he has been a practicing attorney, counselor, arbitrator, mediator, bar officer, and state court judge. Webster’s opinions are also based in part upon materials described in Section IV.B, within.