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Hope Dies Last: The Progressive Potential and Regressive Reality of the Antibalkanization Approach to Racial Equality
Get PDFThis Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both long-standing and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other?
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Over the last four decades, the Supreme Court’s equal protection jurisprudence on governmental race-consciousness has answered with an “antibalkanization approach” which prioritizes social cohesion. Indeed, this approach views social cohesion as a prerequisite for racial equality progress. It considers racial hostility and resentment among White Americans as the most important racial equality obstacle and polices governmental race-consciousness in an attempt to minimize such hostility and resentment. It believes that this is the only way to reach the constitutional ideal of racial equality. Many policymakers in the past have agreed. This Article posits that while this approach appears to be well-meaning and cares about some of the right kinds of considerations, it is ultimately flawed because it misunderstands the dynamics of racial inequality and racial hierarchy. The antibalkanization approach attempts to solve a structural problem with a “bad apple” approach—what Critical Race Theory scholars have called a perpetrator perspective. This Article goes in depth to illustrate both the inner workings of the antibalkanization approach and how social science research on the sociological and social psychological dimensions of racial hierarchy shows it to be flawed. The approach ought to be replaced by a more accurate model of racial equality progress that would view White racial hostility and resentment not as an obstacle but as a likely inevitable side effect of the path of structural change that is necessary for achieving both racial equality and social cohesion over the long term. Adopting such a structural understanding of racial hostility and resentment would have important implications for both policymakers and for the Court.
This abstract has been adapted from the author\u27s introduction
COVID, Climate Change, and Transformative Social Justice: A Critical Legal Research Exploration
Get PDFThis Article explores intertwined contemporary crises via the Critical Legal Research framework (“CLR”), as initially developed by the critical legal scholars Richard Delgado and Jean Stefancic. CLR as conceived of in this Article entails a truly radical approach to the legal research and analysis regime. While the traditional research regime—as taught in law schools and utilized in practice—functions to homogenize research outcomes towards hegemonic ends, a critically “reconstructed” approach to legal and broader socio-legal research permits more transformative futures. Specifically, CLR as deployed within such modes as radical cause lawyering can help engender genuine systemic “re-formations” of the ecological political economy beyond mere law “reform.”
Next, this Article applies the CLR framework to three intertwined crises: climate change and the broader ecological crisis (i.e., termed the “Capitalocene” by critical commentators); the COVID-19 global pandemic and accompanying social catastrophe; and the racial state violence and intersecting oppressions along lines of class, gender, LGBTQ+ status, immigrant status, etc. that catalyzed the mass Black Lives Matter uprising. This illustrative CLR application demonstrates that such crises ultimately emanate from the unjust and ecologically unsustainable white patriarchal capitalist paradigm—and that, correspondingly, CLR-influenced radical cause lawyering modes could help drive transformative futures beyond this paradigm in its entirety
The Politics of the Criminal Enforcement of the U.S. Clean Air Act
Get PDFCriminal prosecution has always existed in a political context. Democratic and Republican presidents have treated environmental regulation very differently over time and this may have a profound effect on how the criminal enforcement of air pollution laws has proceeded in the United States both historically and in the future. There was enough of a bipartisan consensus to allow the institutionalization of resources for the policing and prosecution of air pollution crimes that began in the 1980s and lasted until the early 1990s, where criminal investigators and specialized prosecutors were hired; institutionalized places for these operations to specialize and collaborate were established; as were criminal provisions in major environmental statutes that all allowed for a criminal enforcement apparatus to institutionalize and become a standard part of the environmental enforcement regime. By the time Bill Clinton was in office, any bipartisanship over environmental enforcement began to break down and this process continued through the Trump Administration, which was openly hostile towards the agency more so than any Republican president since Reagan. How enforcement evolved across different partisan regimes and whether Democrats offered significantly expanded political, administrative, and budgetary support compared to Republicans, should influence criminal enforcement outcomes in CAA [Clean Air Act] criminal prosecutions, but these effects are mostly unknown. By analyzing all CAA criminal prosecutions stemming from EPA criminal investigations from 1983 to 2021, we are able to explore outcomes across time and presidents and examine these broader patterns to address such important questions.
This abstract has been taken from the author\u27s introduction
Assessing the Racial Implications of NCAA Academic Measures
Get PDFIn 1983, the NCAA’s adoption of heightened initial eligibility standards for incoming intercollegiate athletes was met with applause and criticism. Proponents lauded the measure as a legitimate means of restoring academic integrity within intercollegiate athletics. Opponents questioned whether seemingly racially neutral eligibility standards had a disproportionately negative impact on African American athletes. It is against this backdrop that the Article examines the racial implications of the NCAA’s past and present academic standards.
These standards consist of initial eligibility rules, progress-toward-degree requirements, the graduation success rate, and academic progress rate, the latter two of which comprise the NCAA’s Academic Performance Program. Through these measures, the NCAA states that it seeks to increase the likelihood that college athletes will develop academically while participating in intercollegiate athletics and graduate from their colleges and universities. As was true of past academic reforms such as Propositions 48, critics question the success of these measures in achieving their stated goals. Legitimate concerns have also been raised in the past and present regarding the disproportionate impact of the NCAA’s academic rules on Black Division I college athletes and historically Black colleges and universities (HBCUs).
In addition to examining the NCAA’s past and current academic rules, the Article discusses the NCAA’s likely adoption of a rule to eliminate the standardized test score component of its initial eligibility criteria for matriculating scholarship intercollegiate athletes. This measure is likely to be perceived as beneficial to Black athletes. Advocates for enhanced racial fairness within college athletics have argued in favor of eliminating standardized test scores as an eligibility factor and believe it will be beneficial to athletes from under-represented communities, particularly Black athletes. While thoughtful arguments can be made in support of the proposal, the Article examines whether the proposal could inadvertently exacerbate the academic marginalization of Black Division I intercollegiate athletes. The Article also examines other practices that erode the value of the educational opportunity afforded Division I intercollegiate athletes
Shaky Science: Shaken Baby Syndrome and Its Disproportionate Impact on False Convictions of Women of Color
Get PDFShaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women of color, especially Black women
Obscenity and the Law: The History of Banning Books from the 1800s to Present Day
Get PDFA selection of works from the library\u27s circulating collections in honor of Banned Books Week.
On display in the Wolf Law Library September 18-24, 2022.
Curated by Devan Orr and Fred Dingledy.https://scholarship.law.wm.edu/libdisplays/1000/thumbnail.jp
Judges and Mass Incarceration
Get PDFIt seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.
Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to dismantle it lie with the political branches. If we look closely, however, some decisions which made the criminal justice system harsher were made by judges. Some of those decisions represent affirmative exercises of judicial power—like the decision to impose longer sentences on defendants who insist on their right to a jury trial. But other decisions represent failures to act—such as deferring to prosecutorial recommendations. Both types of decisions had enormous consequences. They changed the very fabric of the criminal justice system. And judges continue to make decisions in courtrooms every day that reinforce those changes. The result is the system we have now—a system that incarcerates more people than any other country in the world.
Judges could combat mass incarceration through pointed pronouncements or radical doctrinal changes handed down by appellate courts. The Supreme Court’s opinion in Brown v. Plata, for example, shows that courts can literally mandate the reduction of prison populations. But not all reform must be sweeping or come from appellate courts. Trial court judges could make modest changes to how they handle their criminal dockets, and those changes could have a significant impact.
This Article will focus on how small changes in trial court practice could transform the criminal justice system for the better. This Article has three parts. Part I chronicles the ways in which judges have contributed to mass incarceration through action or inaction. Part II provides suggestions for what judges could do to help reverse that trend. Specifically, judges could reduce reliance on pretrial detention, modify the balance of power in plea bargaining, and impose more reasonable sentences. Part III identifies the sources of judicial authority for these recommendations and grapples with objections.
This abstract has been taken from the author\u27s introduction
A Study of Tribal Communication Frameworks: Some Approaches to Building Partnerships Between Tribal, State, and Local Governments in Virginia
Get PDFThis paper discusses options the Commonwealth could consider when evaluating decision-making processes that affect tribes in Virginia, with the goal of improving communication and collaboration between tribal, state, and local governments; and will highlight key case studies from other states and localities that provide precedents. The following options are based on a framework of free, prior, and informed consent, which emphasizes self-determination and an individual right to pursue economic, social, and cultural development. This framework can be applied to decision making and projects for any topic. Moving forward, government-to-government communication will be key to developing solutions to pressing issues such as building climate change resiliency and other long-term initiatives.
This abstract has been taken from the authors\u27 introduction