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Reifying Injustice: Using Culturally Specific Tattoos as a Marker of Gang Membership
Get PDFThe “gang” label has been so highly racialized that white people who self- identify as gang members are almost never categorized as “gang members” by law enforcement, while Black and Latino people who are not gang members are routinely labeled and targeted as if they were. Different rules attach to people under criminal law once they are labeled gang members, yet this two-track system is justified under the guise that the racially disparate treatment is legitimate because of gang association.
This Article takes one concrete example—culturally specific tattoos—and unmasks how racial markers are used to attach the gang label. Specifically, I describe examples of how tattoos symbolizing Chicano cultural identity are used to categorize people as gang members.
I discuss four types of tattoos that represent important aspects of Mexican-American identity, but that are regularly used to define people as gang members. Specifically, I discuss how tattoos and symbols of people’s racial identities or places of origin, such as “Mexicano” or “Brown Pride,” have been used as evidence of gang membership. I also describe the use of tattoos that depict Aztec or Mayan imagery, as well as tattoos of Catholic religious symbolism.
The Article then builds on scholarship in the field of Critical Race Studies to criticize the current construction of the law, which keeps racially disparate treatment entrenched. Here, I rely on academic literature about tattoos to explain how central tattoos are to people’s identities, and to argue that the law should evolve to acknowledge disparate impact claims in the absence of evidence of discriminatory intent, and to recognize discriminatory intent when it is masked behind language that legitimizes discrimination
Reclaiming Control
No full textThe courts have taken over environmental law, sidestepping congressional intent and diminishing the statutes’ strong public-minded values—instead allowing administrative law to play an outsized role in shaping environmental policy
Law\u27s Credibility Problem
Get PDFCredibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.
Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” This presumption, the applicant argues, means that the Court of Appeals must credit his testimony and reverse the decision below.
Should the applicant win? Clearly, the answer depends on what “credibility” (and its presumption) entails. But the Supreme Court, confronting this question in Garland v. Dai, declined to provide an answer. Instead, it showcased the analytic confusion that surrounds credibility writ large. At oral argument, the Justices canvassed four distinct ideas of credibility. In their unanimous opinion, they offered a “definition” of credibility that managed to replicate, rather than resolve, the ambiguity among the four. Meanwhile, the everyday work of adjudication continues. Every year, thousands of cases are resolved on credibility grounds— many with life-altering consequences—despite the confusion at the heart of the legal concept.
The time has come for our legal system to clarify what it means by “credibility.” While the term can be an umbrella for different ideas, within any given adjudication—like an immigration proceeding—precision about how we are using it is a must. To that end, this Article explores different ideas of credibility, taking the Garland v. Dai argument and opinion as a source of (cautionary) inspiration. It explains why credibility is necessarily distinct from truth, and the malleable nature of the concept. Is credibility a synonym for persuasiveness? Does it refer to the likelihood that someone is telling the truth in this case? To the likelihood that they generally tend to tell the truth? To whether they seem like they’re telling the truth? Ultimately, there is no ideal definition of credibility; it depends on what work the concept is trying to do. What is far from ideal, however, is the current state of affairs, in which credibility means everything and nothing—notwithstanding its role in shaping people’s lives
Beyond Title VII: Litigating Harassment by Nonemployees Under the ADA and ADEA
Get PDFEmployees in the United States are protected from unlawful harassment that rises to the level of a “hostile work environment.” Federal circuits recognize that employers could be liable under Title VII when their employees experience hostile work environments because of harassment from nonemployees. However, outside of Title VII, not all federal circuits have recognized that the Americans with Disabilities Act of 1990 (ADA) and Age Discrimination in Employment Act of 1967 (ADEA) protect employees from hostile work environments.
As a result, employees are vulnerable with respect to age and disability-based harassment. This Comment argues that all federal circuits should allow hostile work environment claims under the ADA and ADEA. The reasons to recognize hostile work claims under the ADA and ADEA are simple but powerful: to uphold uniformity in federal law, protect American workers equally from harassment based on a protected characteristic, and recognize the influence of Title VII. Additionally, this Comment argues that liability should extend under the ADA and ADEA when employees experience hostile work environments due to nonemployee harassment. Because Title VII, the ADA, and the ADEA each intend to prohibit unlawful discrimination in employment, the ADA and ADEA should be treated the same as Title VII in this context
Evaluating Congress\u27s Constitutional Basis to Abolish Felony Disenfranchisement
Get PDFIn the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by placing great weight on the Fourteenth Amendment’s allowance of disenfranchisement for “rebellion, or other crimes.”
The modern practice of felony disenfranchisement disproportionately impacts communities of color and recently prohibited over five million Americans from voting in the 2020 national election. This Comment analyzes the two most prominent constitutional arguments for Congress’s power to abolish felony disenfranchisement. Ultimately, this Comment concludes that neither the Fourteenth Amendment nor the Elections Clause is an appropriate basis for ending felony disenfranchisement. However, this Comment introduces three alternative constitutional arguments for Congress to end felony disenfranchisement
Making Bad Decisions with Toxic Emissions: Exploring the Prosecution of Companies for Superfund Crimes
Get PDFMarginalized communities in the United States bear the brunt of toxic pollution from Superfund sites. Criminal provisions in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, allow prosecutors to seek penalties for environmental crimes involving significant harm and/or culpable conduct, but we know little about how companies have been prosecuted for Superfund crimes. We utilize content analysis of 2,728 environmental crime prosecutions stemming from U.S. EPA criminal investigations from 1983-2021, and select cases of companies prosecuted for Superfund crimes. We found that across 41 prosecutions, 126 defendants were prosecuted, resulting in 68 years of probation and over $47 million in criminal penalties assessed at sentencing, but penalties are significantly impacted by a few large-penalty prosecutions. Fifty-one percent of prosecutions centered on hazardous waste crimes, followed by asbestos crimes (24 percent), chemical spill crimes (15 percent), and emissions crimes (10 percent). We conclude with a discussion of the value of Superfund criminal enforcement for deterring environmental crime and make suggestions for expanding Superfund criminal prosecutions
Reply Brief for Petitioners, Gonzalez v. Google, 143 S.Ct. 1191 (2023) (No. 21-1333)
Get PDFQUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. One appellate judge has concluded only that circuit precedent precludes liability for such recommendations.
The question presented is: Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information
Resilience Grammar: A Value Sensitive Design Method for Resilience Thinking
Get PDFThe resilience grammar is a method for bringing a value sensitive design sensibility to resilience thinking. The method provides a systematic process for researchers, designers, and policymakers to identify and trace resilience pathways in the context of real world responses to stressors and obstacles. The grammar is composed of seven statement types, which bring forward aspects of resilience. Each statement type is composed of a connecting phrase and an element, in the form of “resilience connecting-phrase .” In this report, we define each statement type in the resilience grammar, provide two brief illustrations of the grammar in action, and conclude with six suggestions for use. Taken together, the resilience grammar enables the expression and integration of diverse stakeholders, values, value tensions, and worldview into an account of resilience thinking.https://digitalcommons.law.uw.edu/techlab/1019/thumbnail.jp