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December 6, 2023

New University of California Press Critical Race Theory Series

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

I am excited to announce that the University of California Press has a new Critical Race Theory book series. Here is the website.

Series Co-Editors:

Raquel Aldana & Kevin R. Johnson, Aoki Center for Race and Nation Studies, UC Davis School of Law

Series Advisory Board:

-Mario Barnes, Professor of Law, UC Irvine
-Rose Cuison Villazor, Interim Dean and Professor of Law and Chancellor's Social Justice Scholar, Rutgers
-Angela Harris, Distinguished Professor of Law Emerita, UC Davis
-Beth Rose Middleton, Professor and Designated Emphasis Chair, UC Davis (Native American Studies)
-Solangel Maldonado, Eleanor Bontecou Professor of Law and Associate Dean for Faculty Research and Development, Seton Hall
-Angela Onwuachi-Willig, Ryan Roth Gallo and Ernest J. Gallo Dean and Professor of Law, Boston University
-Mary Romero, Professor of Justice Studies and Social Inquiry Emerita, Arizona State (Justice Studies and Social Inquiry)
-Wadie Said, Professor of Law and Dean’s Faculty Fellow, University of Colorado

Contact the series editors if you have book ideas.

 

August 9, 2021

Race, History, Guilt and the Olympics: Real-World Experience in the Classroom

[Cross-posted from The Hill]

By Alan Brownstein

If one looks behind some of the criticism directed at the teaching of Critical Race Theory, it appears that there is a particular objection to the idea that white students should be taught that they bear guilt or responsibility for past and/or present racism in our society.

As a professor of constitutional law, I do not teach Critical Race Theory. Still, when I teach about the Equal Protection Clause, the issue of guilt and responsibility is unavoidable. My focus is not on white normative accountability — It is on American guilt and responsibility. And in beginning the discussion, I find it useful to talk at least initially about the Olympics.

My first question to students is whether they ever experience pride for some achievement they had no role in bringing about. I offer the success of USA athletes at the Olympic games as an example. Most students agree that they experience considerable pride in the effort and success of USA Olympic athletes even though they had nothing to do with these results. It seems entirely natural and reasonable for Americans to take pride in the achievements of other Americans.

My second question is this: If it is reasonable and acceptable to experience pride when individual Americans or our country does something praiseworthy, is it also reasonable and acceptable to experience shame or guilt when individual Americans or our country engages in shameful or blameworthy conduct?

A follow-up question extends the issue beyond pride or blame: I ask whether students have received significant benefits as a result of their living in the United States? Did students directly bear the costs incurred by earlier generations in providing the political freedoms and material advantages the students enjoy today? Most students agree that they are the blessed beneficiaries of the work and courage of their forebears. The follow-up is whether it is fair and just to expect the students to pay the debts incurred by prior generations to provide the political and material goods the students experience and value today.

In its simplest terms, we would find it entirely reasonable to expect Americans today to pay the principal and interest on bonds the government sold to finance the construction of public bridges and dams.

But not all debts are so easily identified or quantified.

Still, we can ask and open the issue for discussion whether current generations may be reasonably expected to take into account the harms America has inflicted on minorities, such as Blacks and Native Americans, in deciding public policy issues today. This accountability is not based on the students’ race, but rather on their national identity. This is American accountability, applicable to our society because we are — and are privileged to be — Americans.

The classroom discussion will move on to evaluate American decisions relating to race and the treatment of racial minorities. Typically, these issues are less controversial. While there may be debate about particular events or policies, there is usually a strong consensus that, historically, American conduct toward racial minorities has been blameworthy. The hard question raised by my earlier inquiries is what that realization of blameworthiness means for public policy and constitutional law decisions today.

Of course, not everyone will agree with the analogies suggested above between pride and shame or benefits and debts. There is a difference, though, between raising a difficult issue for students to confront and demanding that everyone agree to a particular response.

Nor do I think that presenting these issues in the way I have described isolates or stigmatizes more conservative students — at least that has not been my experience.

Several years ago, I was privileged to be invited to visit and teach Constitutional Law for a semester at the law school at Brigham Young University (BYU). BYU law students are smart, thoughtful, religious, and generally conservative. They did not find the way I conducted the discussion of equal protection issues to be insulting or indoctrination. Indeed, one of the most rewarding teaching evaluations I have ever received was written by a student in that class. As a religious school, BYU asks students to evaluate whether a professor’s class was spiritually strengthening. Because I am Jewish and the overwhelming majority of BYU students are Mormons, I was not sure what to expect from students in response to this question on the evaluation.

One student’s response described my presentation on equal protection issues this way: “His sincerity in fairly articulating the constitutional interests of racial minorities, women and LGBT individuals was a supreme example of what we would deem Christ-like. Seeing his reverence toward these issues and the real-world consequences for those most affected by them was more powerful than any explicit discussion of religion in the lectures could have been.”

I doubt I deserve such high praise. But I am confident that the anonymous student who wrote this evaluation was neither insulted nor indoctrinated by my teaching.

June 2, 2021

Episode 53: 'Hate Crimes'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On May 20, 2021, President Joe Biden signed the COVID-19 Hate Crimes Act into law. This bill made special mention of hate crimes against Asian Americans. This was in stark contrast to his predecessor, President Donald Trump, who used racist and xenophobic terms in relation to COVID-19. What exactly are hate crimes, and what does the Constitution say about them? Listen to episode 53 of the What Trump Can Teach Us About Con Law podcast.

May 10, 2021

Justice Cruz Reynoso's Rural Life

By Lisa Pruitt

Cruz Reynoso, former California Supreme Court Justice and my colleague at UC Davis School of Law for two decades, died a few days ago at the age of 90.  Many are offering remembrances of Reynoso -- who the faculty and staff at the law school knew as just "Cruz"-- and it's interesting for me as a ruralist to see the number of references to "rural" in his life's story.  

Of course, Reynoso famously led California Rural Legal Assistance (CRLA), the "first statewide, federally funded legal aid program in the country."  That was during the heyday of Cesar Chavez and Dolores Huerta's organizing in the 1960s.  CRLA provides free legal services to farmworkers.  In California, "rural" is largely conflated with agriculture in the popular imaginary (though there are far less densely populated and more remote California locales than its agricultural valleys), and the organization's website articulates its mission as helping “rural communities because those communities were not receiving legal help.” 

The tumultuous history of that organization under Reynoso's leadership is recounted in a Los Angeles Times story

Then-California Gov. Ronald Reagan repeatedly vetoed federal funds for the California Rural Legal Assistance while Reynoso headed the office and even signed off on an investigation that accused the nonprofit of trying to foment murders and prison riots (the investigation went nowhere).

Among other achievements during his leadership, Reynoso "oversaw eventually successful efforts to ban the short-handled hoe, which required farmworkers to stoop and led to debilitating back problems, and DDT, the deadly agricultural chemical."  

The Sacramento Bee reports on one of CRLA's big litigation victories under Reynoso's leadership, Diana v. California State Board of Education:  


It centered on Latino children who were incorrectly assessed by their school and labeled mentally challenged. The pupils were funneled into special education classes when, in reality, they were simply new English learners. CRLA lawyers filed a class-action lawsuit on behalf of students in the Monterey County town of Soledad.


“CRLA won a consent decree that allowed non-Anglo children to choose the language in which they would respond on IQ tests,” wrote the Salinas Californian in 2016. “It banned verbal sections of the test. It also required state psychologists to develop an IQ test appropriate for Mexican Americans and other non-English-speaking students.”

This column by Gustavo Arellano in the Los Angeles Times recounts Reynoso's childhood -- including early activism -- in Orange County, which then included significant rural stretches: 

[Reynoso's] family lived in a rural part of La Habra, where the Ku Klux Klan had held the majority of City Council seats just a decade earlier and Mexicans were forced to live on the wrong side of the tracks. Reynoso’s parents and neighbors had to travel a mile to the post office for their mail because the local postmaster claimed it was too inconvenient to deliver letters to their neighborhood.


Reynoso didn’t question this at first — “I just accepted that as part of the scheme of things,” he’d tell an oral historian decades later, in 2002.


But one day, a white family moved near the Reynosos and immediately began to receive mail. The teenage Cruz asked the postmaster why they were able to receive mail, but his Mexican family couldn’t. If you have a problem with this, the postmaster replied, write to her boss in Washington D.C.

And write a letter to the U.S. Postmaster General is exactly what Reynoso did.  According to a story released by UC Davis on the occasion of Reynoso's death: 

He wrote out a petition, gathered signatures, and successfully lobbied the U.S. Postmaster General in Washington, D.C., for rural mail delivery.

The obituary in the Los Angeles Times notes that Reynoso continued to live a rural life, even while working in Sacramento and Davis.  He "had a 30-acre spread in the agricultural Sacramento County town of Herald," population 1,184.The L.A. Times also reports that, as children, Reynoso and his 10 siblings worked summers in the fields with their parents. 

But the rural fact that leapt out at me most prominently was this line from the UC Davis story about what Reynoso did after finishing law school at UC Berkeley:

Justice Reynoso and his wife, Jeannene, moved to El Centro, in California’s Imperial Valley, where he started his own practice.


Today, Imperial County and El Centro, its county seat, are legal deserts--and they probably were back then, too.  Just imagine a UC Berkeley Law or UC Davis Law grad going to El Centro and hanging out a shingle in 2021?  It's nearly unthinkable, though a few probably go there each year to work for legal aid organizations like CRLA.  If it were more common to follow such a career path -- and for legal educators to prommote and honor those paths -- the Golden State would not be facing a rural lawyer shortage, with impoverished communities of vulnerable workers like the Imperial Valley suffering most as a consequence of that deficit.    


A Sacramento Bee column about Reynoso by Marcos Breton on the occasion of Reynoso's death features several remarkable photos.  These include one of Reynoso at the Herald property in 2000 with his then-young grandchildren; Reynoso was wearing overalls, a signifier of his rural authenticity.  The photo was taken by a Bee reporter the year he was awarded the Presidential Medal of Freedom and previously published as part of the paper's reporting on that honor.  


Speaking of that authenticity, I always appreciated Cruz's frequent use of the word "folk" to refer to groups of people, or the populace generally. Indeed, I see the Spanish translation is "la gente," meaning "people, town, dweller."  For me, his use of "folk" provided implicit permission to use that word and its plural, both terms I'd grown up with but later excised from my professional vocabulary becuse I had thought them too colloquial.  


Cruz was as approachable to students as he was to faculty and staff.  We often saw him walking to the Silo (an eatery on campus) with a group of students for lunch.  And in my first year at UC Davis, 1999-2000, when Cruz was visiting from UCLA's law school, he gamely agreed to participate in a student-sponsored moot court event called "Battle of the Giants," which featured two professors playing the role of advocates in a mock appellate argument.  It took a while for the student organizers of the event to get someone to agree to be the opposing "giant" (eventually, I reluctantly agreed), but Cruz had not hesitated to take on this time-consuming task, one little valued by the law school administration.

 

Cruz was very gentle in how he engaged and educated people, which I believe often rendered him particularly persuasive. Many years ago, I heard him say to a group of students, in his typical, soft-spoken way, "No human being is illegal." This was at a time whne the phrases "illegal alien" and "illegal immigrant" were still widely used. Expressed in his calm, avuncular, matter-of-fact way, I'm sure he won over many, got them to think about the significance of language. It's quite a contrast with the ways in which so many in our educational institutions today "call out" or "cancel" each other in shrill and judgmental fashion, a tactic that often serves primarily to aggravate divisions.   

 

Given Cruz's commitment to students and education, it's not surprising that his family has asked that, in lieu of flowers, donations be made to the UC Davis student scholarship fund "for legal access" that honors him and his wife

August 24, 2020

Democrats must invest in the future of the party -- Latinos

[Cross-posted from The Boston Globe]

By Luis R. Fraga, Luz E. Herrera, and Leticia Saucedo

Last week, America watched a new type of Democratic National Convention. It was more representative of our country and we were glad to see Latino entertainers, workers, immigrants, mothers, daughters, and elected officials representing constituencies at different levels of government.

Who was not highlighted in a prime time speaking role was former presidential candidate and secretary of Housing and Urban Development in the Obama administration, Julián Castro. Representative Alexandra Ocasio-Cortez of New York was included only at the invitation of former presidential candidate and Senator Bernie Sanders. While she maximized her 90 seconds, party protocol ate up her speech time. Why did the DNC miss this opportunity to showcase the promise of a progressive Latino voice for the future of the Democratic Party?

Castro was the first presidential candidate to advance a police reform plan that called for a national use of force standard, sentencing reform, the end of qualified immunity, cash bail reform, and investment in public defenders, and diversion programs. He called for the federal government to seek accountability for excessive use of force months before George Floyd’s tragic death forced people across the political spectrum to publicly affirm that Black Lives Matter.

As the former mayor of San Antonio, Texas, the 7th largest city in the country, Castro made important contributions to improving the lives of Americans. He did not just present lofty ideas, he established policies to directly address them. Castro ran a bold presidential campaign that highlighted the plight of immigrant children detained and caged by the Trump administration on the US border. He advocated the repeal Section 1325 of the immigration code that makes it a crime for immigrants to enter the United States without legal status. He set the agenda on immigration which many other Democratic presidential candidates subsequently adopted.

As the only Latino candidate for president, Castro deserved more than an offer of a cameo in a pre-recorded panel, he deserved a keynote speech like other former presidential candidates. This is the source of concern; role models matter and are crucial in creating a pipeline of future leaders.

Just as the convention provided a platform to bring moderate Republicans into the Democratic Party tent, it was also an opportunity to appeal to the progressive elements — including Latino progressives — who make the Democrats attractive to so many. As party officials court the Republican base and more conservative sectors of the Democratic Party, they must also pay tribute and respect to all parts of the base if the party is to remain relevant, and thrive.

This year, 32 million Latinos will be eligible to vote in November 2020 — that is the largest non-white voting bloc and that is projected to grow as the overall Latino population becomes 28 percent of the US population by 2060. Some 800,000 Latinos turn 18 every yearNinety-three percent of these are US citizens by birth. It’s time to include Latinos at all levels of the political conversation, not only as political surrogates or as tools for a diversity photo-op, but as full members of the Democratic Party.

Latinos have not been elected to the highest office in America — yet. Giving Castro a primetime role at the DNC would have been an investment in the future of the Democratic Party, an acknowledgement that it regards Latinos as part of the movement. Not giving him or Ocasio-Cortez prominent roles is disheartening; accomplished Latinos must be included in a significant way.

The DNC has always counted on the Latino constituency to go along. A large percentage of Latinos will probably vote for the Democratic ticket this fall because the status quo is unacceptable. However, voting for the Democratic ticket in 2020 doesn’t mean Latinos will forget this slight.

Luis R. Fraga is a professor and director of the Institute for Latino Studies at the University of Notre Dame. Luz E. Herrera is a professor and associate dean of Experiential Education at the Texas A&M University School of Law.

June 24, 2019

Book recommendation: Ghosts of Gold Mountain

Gold mountain

[Cross-posted from ImmigrationProf]

 

I strongly recommend the book Ghosts of Gold Mountain: The Epic Story of the Chinese Who Built the Transcontinental Railroad by Gordon H. Chang.  It previously was previewed on the ImmigrationProf blog.  I just finished this very readable book and found it to offer an incredibly important account of the Chinese immigrants who literally built the western end of the transcontinental railroad and forever changed the United States, revolutionizing commerce in the country and literally transforming the nation.

Chang offers a human account of the role of Chinese immigrants, who often have been rendered invisible in the history books, in the construction of the U.S. transcontinental railroad, which was completed in 1869.  He refers to the workers as "Railroad Chinese," most who hailed from southern China and performed the amazing feat of completing the transcontinental railroad through the incredibly rocky and steep Sierra Nevada mountains.  Ghosts of Gold Mountain tells us how the workers (almost all men but with a small group of women who, according to Chang, mostly worked in prostitution) lived (including what they ate and drank) in the United States (far from family and friends in China), how they were skilled railroad builders, resisted unfair treatment by their employers, and ultimately how the nation discarded them after their labor was no longer needed.  California railroad barons Leland Stanford and Charles and Edwin Crocker feature prominently in the story of the Railroad Chinese and the construction of the transcontinental railroad.  Although many initially opposed the use of Chinese labor in railroad construction, the workers proved themselves to be diligent, responsible, and dependable. 

Despite their daring achievements, the Chinese workers in the late 1800s were subject to discrimination, the Chinese exclusion laws designed to end immigration from China, and political movements led by white workers and others for their removal.  In my opinion, an understanding of how the nation treated Chinese immigrants is necessary to an understanding of the exclusion laws, which continue to influence -- through the "plenary power doctrine" and more -- immigration law and policy.

Like any good book, Ghosts of Gold Mountain got me thinking.  I did a little research after reading about the Chinese workers who settled in Truckee, California, a small town near Donner Lake, known for the ill-fated Donner Party. Not far from Truckee, the Railroad Chinese constructed a series of tunnels through granite at high altitudes, including during the harshest of winters.  Many Railroad Chinese died.  Today, Truckee, where I have vacationed for years, has almost no evidence of the Chinese settlement that was so prominent from 1840-1886.  Chinese people were basically forced to leave Truckee.  The efforts culminated in 1886; discrimination, boycotts of their businesses and labor, and violence, which later became known as the "Truckee method," basically forced the Chinese to leave the city.  In one spectacular case, a group of white defendants were acquitted of the killing of a Chinese man in 1876 in a raid on a house with Chinese workers known as the "Trout Creek Outrage."  During the same general time period, a secret white supremacist society known as the "Caucasian League" had hundreds of members in Truckee and thousands throughout the state.  At various times in the late 1800s, suspicious fires destroyed parts of the "Chinatown" section of Truckee.

In 1886, California held the Anti-Chinese Nonpartisan Convention in San Jose, which praised the intimidation fires, boycott, and exclusion —the Truckee Method — and adopted it across the state.  The Truckee method was successful because it was said to be “lawful and nonviolent.”

Support -- much of it couched as support for white workers -- for the federal Chinese exclusion laws came from California.   This historical backdrop thus influenced the Chinese exclusion laws.

 

July 1, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 3

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers.

"The Racist Algorithm?" 
Michigan Law Review (2017 Forthcoming)
UC Davis Legal Studies Research Paper No. 498

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

"Marriage Equality and its Relationship to Family Law" 
129 Harv. L. Rev. F. 197 (2016)
UC Davis Legal Studies Research Paper No. 499

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

This Essay is a Response to Professor Douglas NeJaime's article Marriage Equality and the New Parenthood. NeJaime's piece offers critical new insights into the evolution of legal parenthood and its relationship to marriage. First, NeJaime shows how evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality. Surprisingly, few scholars have acknowledged, much less carefully explored, this connection. Second, NeJaime uses his meticulous parentage case study to complicate our understanding of the extent to which this earlier parentage advocacy directly challenged marriage's privileged role in our society. Finally, NeJaime argues that this history suggests more progressive possibilities with regard to the future legal treatment of nonmarital children post-Obergefell.

After highlighting these three key contributions, this Essay makes two additional points. First, this Essay considers why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Second, this Essay considers a critical possibility not addressed by NeJaime. NeJaime uses parentage law to show how Obergefell might facilitate, rather than foreclose, additional protections for nonmarital children. This Essay posits an even more radical proposition: it argues that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.

"Preliminary Injunctive Regulation" 
Arizona Law Review, Vol. 58 (Forthcoming)
UC Davis Legal Studies Research Paper No. 497

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Rapid technological changes pose serious challenges for the Environmental Protection Agency (EPA) and other regulators charged with protecting human health and the environment. These changes can result not only in significant harms, but also in the entrenchment of new technologies that can be difficult to undo should the need arise. In urgent circumstances, agencies often must act quickly, but they face an increasingly ossified rulemaking process. The Administrative Procedure Act's good cause exception to notice and comment rulemaking offers the most promising option for a swift and effective response. Empirical analysis of EPA's use of that exception demonstrates that, contrary to concerns regarding potential agency abuse, EPA has exercised restraint in invoking the exception. Going forward, EPA should consider more aggressive use of the exception to respond to urgencies resulting from rapid technological developments and environmental changes. In justifying an expedited approach, EPA can make explicit reference to congressional inaction on an issue, the generally protracted nature of contemporary rulemaking, and the particular delays that the agency has encountered in ordinary rulemaking.

"Interstitial Citizenship" 
Fordham Law Review, 2017 Forthcoming
UC Davis Legal Studies Research Paper No. 496

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

We think of American citizenship as a binary concept. There is citizenship, which is acquired at birth or through naturalization, and there is non-citizenship accounting for everyone else. I argue that this understanding is woefully incomplete. Conventional framing of citizenship has overlooked a different type of political membership: American national status. American nationals possess some rights of citizenship, such as the right to enter and reside in the United States without a visa. Similar to non-citizens, however, they cannot vote or serve on the jury. Thus, the status of American nationals reveals that there are individuals who are neither citizens nor nor-citizens or "aliens." Instead, they have what I have coined "interstitial citizenship." Disrupting the citizen/alien binary, interstitial citizenship demonstrates that citizenship is far more flexible than previously thought. Indeed, it reveals that citizenship rights may be unbundled and conveyed to non-citizens. In this way, interstitial citizenship offers important legal and policy implications for contemporary debates on comprehensive immigration reform, including the question of whether to provide undocumented immigrants with a path to citizenship.

June 20, 2016

Article of the Day: The Racist Algorithm? by Anupam Chander

Cross-posted from Immigration Prof Blog.

I want to highlight a forthcoming article by Professor Anupam Chander: "The Racist Algorithm?" Michigan Law Review (2017 Forthcoming)

ABSTRACT:  Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

June 19, 2016

Case Western Reserve Law Review Symposium on Whren

The Case Western Reserve Law Review published its symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States.

My contribution is included. Here is the link for "Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals."

June 8, 2016

Reynoso: I’m Mexican-American, and I was a judge. What Trump is doing is appalling.

Former California Supreme Court Justice and Professor Emeritus Cruz Reynoso penned an op-ed for PostEverything, a feature of The Washington Post. The piece is titled "I'm Mexican-American, and I was a judge. What Trump is doing is appalling." In it, Reynoso takes on remarks from presumed Republican presidential nominee Donald Trump, who wishes to disqualify U.S. District Judge Gonzalo Curiel from presiding over the lawsuits against Trump University: "Now, this judge is of Mexican heritage. I'm building a wall, okay?"

Reynoso writes:

Trump's rhetoric is a frontal attack on the judicial system. Are federal judges of Hispanic origin to be judged on the basis of their ethnicity rather than that the quality of their professionalism?

I have had the opportunity these last 53 years of my life to be a lawyer who practiced before judges, as well as a judge - a California state appellate and Supreme Court justice. (I was proud to be the first Latino appointed to my state's highest court, in 1976.) When appellate judges disagree, they write dissents. Dissents are based on differing views of the law. Never has a dissent been based on the ethnicity of disagreeing justices, nor should it be so. Were that true, as Trump asserts, our judicial system would, in effect, be destroyed.

For the full op-ed, visit PostEverything.