Latest Scholarship

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.

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

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:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

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

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

February 17, 2016

Scalia Allowed Racial Profiling

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

December 8, 2015

Muslims are to Trump as the Chinese were to President Arthur in 1882

A political cartoon from 1882, showing a Chinese man being barred entry to the "Golden Gate of Liberty". The caption reads, "We must draw the line somewhere, you know."  Courtesy of Wikipedia

Yanan Wang in the Washington Post draws parallels between Donald Trump's call for the prohibition of Muslims from entering the United States and the sordid history of Chinese exclusion.  I was jarred (pleasantly) by her reference in the conclusion to one of my law review articles from 1998:

Trump's call for a "total and complete" ban on Muslims entering the U.S. has received widespread criticism in part because it evokes a history widely considered shameful now, not just in its application to the Chinese but to a succession of ethnic and religious groups lumped together for exclusion at one point or the other: Irish Catholics, Jews, South Asians, Turks and Pacific Islanders, among others.  Enacting such a proposal would mean going back 72 years in U.S. history, to before the Chinese Exclusion Act was repealed by President Franklin Roosevelt in 1943.

In his paper "Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror' into the Heart of Darkness," University of California Davis law school dean Kevin Johnson contended that exclusionary immigration laws are in part reflections of prevailing opinions about racial minorities already settled in the U.S.

"For better or worse," Johnson wrote, "the history of national origin and racial exclusion in U.S. immigration laws serves as a lens into this nation's soul...This phenomenon is not limited to racial minorities, but applies with equal force to other groups who have been excluded from our shores under the immigration laws."

November 20, 2015

Duke Law Symposium on Civil Rights

Senior Associate Dean Madhavi Sunder and I are at Duke Law School today. We are speaking in the symposium, "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" by the Center on Law, Race and Politics.

Dean Sunder and I are panelists in the first plenary session of the day, titled, "Reflections on the Present and Future of Civil Rights Movements." The panel is being moderated by our former King Hall colleague Angela Onwuachi-Willig, who's now at the University of Iowa College of Law.

Some of the panels are being live-streamed. Visit the Center's symposium website to view!

Here are the symposium poster and description:

In 2014, the nation marked the fiftieth anniversary of the March on Washington, the Civil Rights Act of 1964, and Freedom Summer.  In 2015, we recognized the fiftieth anniversary of the Voting Rights Act of 1965.  As we move forward in the 21st century, however, America finds itself at the beginning of a new era defined by its own set of civil rights struggles. The battles of 2015 are in some ways markedly different from those of the 1950s and 1960s, as "whites only" signs and overt displays of societally condoned racism are mostly relegated to history.  However, what remains is a country full of disparately impacted populations, with people of color facing disadvantages at home, at work, at school, and in the justice system, all in the context of a society that prides itself on its imagined march towards post-racial colorblindness.

A shifting landscape, however, simply means that the civil rights movements of the 21st century must also shift in line with modern realities. "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" presents an opportunity for scholars, teachers, practitioners, and activists to engage with each other as they discuss their unique perspectives on inequalities throughout different facets of modern America.  In exploring today's civil rights struggles, including the disproportionate imprisonment of populations of color, decreased access to housing, and persistent roadblocks to basic civic freedoms such as voting, this conference will provide an opportunity for those who recognize the persistent impact of systematic racism to reflect on the past and present in order to better inform the future.

July 21, 2014

Berkeley Journal of Gender, Law & Justice Publishes Issue on Professor Harris's Presumed Incompetent

The Berkeley Journal of Gender, Law & Justice has published a special symposium issue devoted to Presumed Incompetent: The Intersection of Race and Class for Women in Academia, the recent book edited by Professor Angela Harris with Professor Gabriella Gutiérrez y Muhs of Seattle University, Professor Yolanda Flores Niemann of the University of North Texas, and Professor Carmen G. González of Seattle University School of Law.

The book, published in 2012 by Utah University Press, features personal narratives and qualitative empirical studies that expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education. The special issue of the Berkeley Journal of Gender, Law & Justice is based upon a March 8, 2013 symposium that featured more than 40 speakers who were invited to celebrate and respond to the book. Among the contributing scholars is Dean Kevin R. Johnson, whose article "Important Lessons for University Leaders" (co-authored with Maria P. Lopez) appears in the issue.  

Angela Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the UC Davis faculty from UC Berkeley School of Law in 2011.

 

April 14, 2013

Commenting on the commentary about "Accidental Racist"

I don't watch TV or follow much pop culture, and most of the country music I occasionally listen to is from old albums by the likes of Sara Evans, Faith Hill, Martina McBride and Alison Krauss.  But this was apparently a big week in country music thanks to Brad Paisley and his new album Wheelhouse.  I was on the road on Tuesday, but by the time I was catching up on email early Wednesday morning, I had lots of messages from friends giving me a heads up on the furor associated with Paisley's new song, "Accidental Racist," which includes a cameo from LL Cool J.  Commentators have varyingly discussed Paisley and his new song thusly:

In short, as one commentator put it, the song has attracted "an unusual amount of ... sneering."  Another called the response "overpowering vitriol." 

 

Eric Weisbard did not sneer in his piece for NPR. His headline references the history of white southern musical identity, and Weisbard touches on biases against the South, as well as white-on-white biases:

As you may have heard, Paisley is sifting through some rubble of his own right now, having been declared a national laughingstock by virtually all commentators coming from outside mainstream country. But then, this condescending dismissal is nothing new. There is a history to "Accidental Racist," the history of how white Southern musicians — heatedly, implicitly, at times self-servingly and not always successfully — try to talk about who they are in answer to what others dismissively assume they are. 

After all, while the Jim Crow South was Anglo supremacist politically, American culture offered a very different dynamic. Ever since white Northerners started putting out their records, Southern whites have represented a backward rural mindset in a national culture of jazzy modernity.  ... Variety loved jazz but scorned the hillbilly in 1926 as " 'poor white trash' genera. The great majority, probably 95 percent, can neither read nor write English. Theirs is a community all to themselves. [They are] illiterate and ignorant, with the intelligence of morons."

This reminds me of some of the points I made in The Geography of the Class Culture Wars about contemporary bias against Southerners, rural denizens, and the ever burgeoning group of people who get labeled "white trash." I note that various commentators of this Paisley/Cool J duet speak ill of the South in a broad-brush way that is not so different to what Variety had to say nearly a century ago.  This has me wondering if Paul McCartney and Stevie Wonder's "Ebony and Ivory," to which many commentators are comparing "Accidental Racist", elicited such ridicule when it was released?

 

Let me be clear:  I do not defend slavery, the historical South, nor the Confederate flag, which I see as necessarily signaling racism.  Further, I offer no comments on the artistic merits of "Accidental Racist," the song, though I will admit that this media frenzy about it led to my first country music download ever just so I could have the full musical experience, first hand.

 

Mark Kemp, too, puts "Accidental Racist" in historical musical perspective and notes regionalism's role in this kerfuffle.  Kemp observes that this is "hardly the first time a song by a Southerner dealing with white blue-collar issues has produced strong reactions among the Northeastern-based media."  

 

Weisbard's piece goes on to comment on the "choices" available to southern white musicians in the 1960s and 1970s, choices that may not have changed much:

They could embrace black music and contemporary life and cross over, like former Texan Janis Joplin. They could go bluegrass singing the Carter Family's now revived "Can the Circle Be Unbroken." Or they could join the notion of regional separatism to new concepts of identity: In songs by Merle Haggard and Loretta Lynn, that great euphemism, country, became something you could be proud of like James Brownwas proud to be black.

I find this recognition of "country" (rurality?) as identity interesting, encouraging--and authentic.  (Describing "country" as euphemistic is similarly insightful).  

 

Which brings to my single favorite commentary on "Accidental Racist," from NYT's "Room for Debate" series about the song.  (Yep, that's right, this little ol' country song was the topic of Room for Debate forum a few days ago, which might be seen as progress for both shunned rural whites and for blacks).  One of the commentators, novelist Will Shetterly, makes the point that Paisley and Cool J didn't write or perform this song for the liberal elites who have responded to it in mostly sneering ways.  In a contribution headlined, "Why Elites Hate this Duet," Shetterly writes of the song's many failings--from the perspective of elites/elitists, that is:  

The song’s first sin is it’s earnest. There’s no irony to please hipsters. 

Its second sin is it’s about members of the U.S.’s racially and regionally divided working class, a southern white Lynyrd Skynyrd fan in a Confederate battle flag T-shirt and a northern black rapper in a do-rag, gold chains and sagging pants. This song wasn’t made for, by or about people who consider themselves the cultural elite, and elitists hate the idea of being irrelevant, especially in a discussion of an issue as important as race. 

Its third sin is featuring a rap artist. Many elitists hate rap as much as they hate country, though they don’t like to admit it for fear of appearing racially insensitive. 

* * *  

Elitists are too smug to consider the possibility that a person from a culture may know it better than they do, so they make easy jokes about “Accidental Racist” being “accidentally racist”.

I like this affirming comment on Shetterly's post, from one who identifies himself as a "liberal elitist":

As a private-school-educated, deep blue liberal elitist, I find I agree with Mr. Shetterly, and in fact said a similar thing about Mr. Coates's piece just the other day. Let's be frank: this song isn't for me and mine. It's for a totally different audience. The problem with people like me is that we want important issues like race and poverty discussed, but only in the way we think is appropriate. We want to set the tone of every conversation. Then we laugh at or scorn guys like these, who take on the same subject in a different way. There are an awful lot of people out there who didn't go to Harvard, yet could greatly benefit from being party to a real conversation about race. However ham-handed it may be, I think there is real good intent behind this song, on the parts of both Paisley and L.L. Cool J, and I hope it does reach their intended audiences.

This, from NPR's Code Switch bloggers, is more typical of the (quasi-)scorn being heaped on Paisley, Cool J and their single:

Most folks, though, seemed to agree that it was at least a well-intentioned, if cringeworthy, gesture. Which we see a lot of in conversations about race, right? 

* * * 

Luis Clemens, our editor, was pretty adamant that this was some kind of elaborate joke. "This is all an elaborate and knowing gag meant to provoke a real conversation about race unlike the pseudo-discussion in the song," he said. "Think of it as a Derridean act of derring-do." 

But nope — Paisley and LL insist that it's the real thing. So if it's a well-intentioned mess, aren't their intentions a little dubious? 

MT: There's probably a mix of intentions, at work, right? I mean, Mr. Paisley and Mr. Cool James had to know that there was going to be a reaction. A lot of reaction. You don't tread into 'Solve Racism' Land lightly. Paisley's tweet yesterday indicated as much. 

So you can take it at face value, and many folks did: this is a serious effort to bridge cultures, to extend a hand and try to embrace someone else's humanity.

I can't resist coming back to this conclusion of Shetterly's piece: 

[I]f you think “Accidental Racist” is racist, accidentally or intentionally, read a few comments at a white supremacy site like Stormfront. So long as they call Paisley a race traitor, he and LL Cool J are doing exactly what the elitists claim they want: furthering the conversation about race in the U.S.A.

For a commentator calling Cool J a race traitor, look no further than this Room for Debate contribution by M.K. Asante.  

 

Mark Kemp asserts that Paisley's accidental racist in the Lynyrd Skynyrd T-shirt is not necessarily Paisley himself.  No, that man is arguably just a persona that Paisley (who, according to some commentators, is known for his "left-wing" views), has adopted for purposes of prompting a discussion about race.  If Kemp is right, maybe there's a bit of irony or something akin to it in this song after all.  Or maybe the irony is in the knee jerk responses of those who have missed this point.    

 

I can't help think of the firestorm "Accidental Racist" has wrought this week in relation to Shirley Sherrod, the former USDA official who was unceremoniously fired in 2010 after Andrew Brietbart publicized an out-of-context video excerpt in which she hinted at having failed to assist a poor white farmer. (That was, in fact, not the case.)  Matt Bai observed then the "depressingly familiar pattern in American life, in which anyone who even tries to talk about race risks public outrage and humiliation."  Paisley and Cool J seem to be providing another example of that sad phenomenon.  

Cross-posted to Legal Ruralism, SALTLaw Blog, and ClassCrits