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  • 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.

  • Determining the (In)Determinable: Race in Brazil and the United States

    In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one's physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent-the presence of one African ancestor defines an individual as Black-determines an individual's "Blackness" in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one's physical appearance is determinative. Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one's physical appearance is the primary determinant of Blackness in both American nations. Indeed, one's ancestry is necessarily implicated in determining race based on “physical appearance," as this method of classifying race is grounded in socially mediated presumptions concerning how an individual's physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.

  • We Need Inquire Further: Normative Sterotypes, Hasidic Jews, and the Civil Rights Act of 1866

    According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations of discrimination based on specific Jewish religious practice were actionable under The Act. This Note will document and explain this paradox.

  • “I’m Usually the Only Black in My Class”: The Human and Social Costs of Within-School Segregation

    The work that has focused on within-school segregation has been most concerned with how this phenomenon limits the educational opportunities and might incur a psychological toll on the mass of Black students who find themselves relegated to lower-ability classrooms in integrated schools. This Article, however, allows us to begin to examine the other side of the coin. It reports on how within-school segregation practices create psychological, social, and educational pressures for those few Black students who have escaped enrollment in the least rigorous courses in their school. More precisely, the Article offers insight into how high achieving Black students in one integrated high school (referred to as Hillside) struggle with being, in most cases, the only Black student in their Advanced Placement courses. Before reporting on the experiences of these high achieving students in Part IV of this Article, Part I provides a brief review of the research literature on desegregation. The review will highlight the degree to which within-school segregation has been featured as a part of this body of work. In Parts II and III, the author then situates these high achievers within the logic of the larger study of which they were a part. Finally, in Part V, the Article concludes with a discussion of how these findings are relevant to the "the hearts and minds" of White Americans and the prospect of creating a more equitable society.

  • 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.

  • Puerto Rico, Puerto Ricans, and Latcrit Theory: Commonalities and Differences Between Latina/o Experiences

    This Essay situates Professor Malavet's analysis in LatCrit theory. The diminished citizenship status of Puerto Ricans on the island shares important commonalities with and differences from the experiences of persons of Mexican ancestry in the United States. Both Mexican Americans and Puerto Ricans enjoy citizenship and membership rights unequal to those accorded Anglos, although one group (Mexican Americans) is composed of citizens by law with full legal rights while the other (Puerto Ricans) includes United States citizens with limited legal rights in Puerto Rico. The guarantees of the law historically have held limited meaning for Mexican Americans; the limitation on the legal rights of United States citizens on Puerto Pico hold great significance. Law thus proves malleable depending on the social context and, not coincidentally, accords Latinas/os in both contexts diminished membership rights.