Quebec’s Bill 62: Legislating Difference

Published Mar 18, 2019

On October 18, 2017, Bill 62, whose full English title is “An Act to foster adherence to state religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies,” came into force in the Canadian province of Quebec. In effect, Bill 62 prohibits niqab-wearing women from giving or receiving public services. It reflects anxiety about religious minorities’ illiberal practices and discomfort with the accommodation of religious difference—the “hypervisibility” of Islamic differences in particular. Bill 62 constructs the multiculturalism and reasonable accommodation debates in a way that erases race and replaces it with culture and religion. In turn, the politics of reasonable accommodation in Quebec conceptualize racialized minorities as threats to Canadian and Quebecois national identity and casts them aside as illegitimate citizens unless they assimilate. State multiculturalism and the reasonable accommodation discourse reinforce the racial status quo by setting the terms of the debate and the limits of tolerance—the “epistemic conditions” that dissuade a close scrutiny of the state’s management of diversity. This Article offers a close analysis of Bill 62 by following a framework that is built on four pillars: (1) interrogating secularism and state neutrality; (2) foregrounding structural difference to achieve systemic equality; (3) theorizing reasonable accommodation; and (4) combatting persisting colonial and Orientalist tropes of racialized Muslim women.

A Norms-Based Approach to Sustaining Integration

Published Mar 18, 2019

Headlines about racial polarization and a country divided obscure an important present opportunity: racial integration initiated by local community choice. These local contexts have national significance in light of census data showing that American suburbs and exurbs are perfectly positioned to integrate and can do so through local choice irrespective of what occurs at the federal level.

However, integration is not preordained. Census data shows segregation decreasing within some large cities but increasing in metropolitan areas as a whole. When Blacks move to the suburbs, Whites flee to locations ever farther from the city’s center. Suburbs and exurbs, not cities, are the new ground zero for integration efforts. The stakes are high: Ferguson, Missouri, home of the 2014 protests, is a suburb from which sixty-two percent of the White population fled between 1990 and 2010.

Using empirical fieldwork from a Chicago suburb that successfully integrated in the 1970’s, this Article sheds light on how norms and other behavioral phenomena fuel the dynamics of integration. When a community deliberately chooses to integrate, it generates norms that foster and sustain integration. As a norm weaves itself into the fabric of the community, it becomes even more powerful than law. The norm helps ensure that individuals within the community make integration-affirming choices, even when those choices are costly. When the norm is visible to those outside the community, it attracts new members who value integration and are likely to support the policies that foster it. Once suburbs and exurbs opt for integration instead of White flight, norms and other mainstays of behavioral law and economics allow integration to perpetuate.

The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?

Published May 23, 2018

For 187 years, Indian nations status in the United States has not been fully developed or consistently approached within the law. They are viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that while the tribal win-loss record at the Supreme Court is improving, the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government.

After categorizing the cases between victories and losses, the Article divides the cases into categories for analytical purposes. The Second half of the Article focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system, and ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism.

Slurred Speech: How the NLRB Tolerates Racism

Published May 23, 2018

Racist speech in union representation elections is widespread and conflicts with the protections of Title VII for diverse employees across different industries. These messages contain slurs, promote white supremacy, and incite fears of legal favoritism for Blacks. Some besmirch Jews, Latinos, Japanese, and Mormons. The rise of white nationalism motivates my empirical study of racist speech in union representation elections. My database consists of fifty-one National Labor Relations Board cases and twenty-nine appellate court rulings on racially divisive campaign speech. In addition, the Article examines NLRB cases involving picketing employees who voice racial slurs to minority workers who cross their line. The fact findings show that the NLRB tolerates almost all slurs and incitements. The Board’s permissive policy conflicts with Title VII’s standard for racial harassment under Harris v. Forklift Systems, Inc. This Article suggests that in cases where racist speech is an issue, the NLRB should use Title VII’s standard for a hostile work environment. Without making this policy change, the National Labor Relations Act opens the door for white nationalists to promote racial preference and re-segregation in the workplace.

Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection And A State’s Socio-Economic Interests

Published Feb 22, 2018

Abstract Some states have recently addressed the integration of their non-citizen populations and their socioeconomic needs by expanding the eligibility of professional licensing to non-citizens. Changes made in 2016 in the two states with the largest immigrant populations, California and New York, were extensive and comprehensive. California removed immigration status requirements for licensing through legislation… Read more

Rap Exegesis: Interpreting the Rapper in an Internet Society

Published Apr 27, 2017

Abstract The law and literature movement has had limited influence on the work of lawyers and judges.  But a rap lyric’s dual quality as aesthetic and “truth” document makes it uniquely amenable to literary interpretation.  The competing problems:  lyrics are meant to be heard and not read, and the ambition of the contemporary rapper is… Read more

From Status to Agency: Abolishing the “Very Spirit of Slavery”

Published Apr 27, 2017

Abstract In response to challenges that the disparate impact doctrine violates the Fourteenth Amendment’s Equal Protection Clause, the Thirteenth Amendment provides a constitutional foundation that deflects the equal protection argument.  Early interpreters of the Thirteenth Amendment envisioned the provision as a means to abolish chattel as well as civil slavery, which was the condition of… Read more

Race, Class, and Religion: Creaming and Cropping in Religious, Ethnic, and Cultural Charter Schools

Published Dec 7, 2016

Abstract This Article is devoted to one of the most fascinating contemporary developments in American public education—the phenomenal rise of religious, ethnic, and cultural charter schools.  Religious, ethnic, and cultural charter schools are established by a religious or ethnic community with the aim of providing an education saturated with the respective values and culture of… Read more

Puerto Rico Before the Supreme Court of the United States: Constitutional Colonialism in Action

Published Dec 7, 2016

Abstract The United States Supreme Court’s October 2015 Term will go down in history as the most significant one for Puerto Rico-United States relations in more than a century.  By opting to address the issues presented in Puerto Rico v. Sánchez Valle, a constitutional case arising from the Commonwealth courts, and Puerto Rico v. Franklin… Read more

The Power of the Body: Analyzing the Logic of Law and Social Change in the Arab Spring

Published Sep 8, 2016

Abstract Under conditions of extreme social and political injustice—when human rights are most threatened—rational   arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights.  When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as… Read more

Religious Exemptions to Neutral Laws of General Applicability and the Theory of Disparate Impact Discrimination

Published Sep 8, 2016

Abstract This Article argues that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate-impact policies such as Title VII.  Though not always expressly stated as such, one can best understand the theory underpinning the exemptions approach to religious free exercise as a paradigm… Read more

Race, Death, and Justice: Capital Sentencing in Washington State, 1981-2014

Published Sep 8, 2016

Abstract This Article examines the role of race in the application of the death penalty in the wake of the Furman v. Georgia decision.  Although contemporary death penalty statutes were designed to reduce arbitrariness and discrimination in capital sentencing, many studies indicate that race continues to play a significant role in determining which capital defendants… Read more

Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases

Published May 9, 2016

Abstract On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying… Read more

Cherokee Freedmen and the Color of Belonging

Published Oct 19, 2015

Abstract This Article addresses the Cherokee Nation and its historic conflict with the descendants of its former black slaves, designated Cherokee Freedmen. This Article specifically addresses how historic discussions of black, red, and white skin colors, designating the African-ancestored, aboriginal (Native American), and European ancestored people of the United States, have helped to shape the contours of color-based… Read more

A Critique of the Motivations Behind Negative Action Against Asian Americans in U.S. Universities: The Model Victims

Published Oct 19, 2015

Abstract To deal effectively with negative action against Asian Americans, it is crucial to first understand the motivations behind negative action. This Article posits that these motivations are complex—they are an intricate tapestry of racism and benevolence interwoven with both conscious and unintentional aspects. In theorizing about and critiquing these motivations by unpacking a 4-quadrant matrix, it seeks… Read more

The Rise of Speed Deportation and the Role of Discretion

Published Jun 25, 2015

Abstract In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural… Read more

Foreclosures and Financial Aid: Mind Over Mortgages in Closing the Plus Loan Gap

Published Jun 21, 2015

Abstract Renewed discussion has recently emerged to help strengthen the middle class by increasing access to college. President Barack Obama is at the forefront of the discussion to make college more affordable by prompting universities to become more efficient. Using education as a gateway to success, the Obama Administration proposed a number of initiatives to… Read more

China’s Apologetic Justice: Lessons for the United States?

Published Jun 21, 2015

Abstract Many scholars have criticized Congressional apology resolutions for slavery as inadequate and ineffective. Ironically, Congress may look to China’s apologetic justice in intentional intellectual property infringements to learn valuable lessons about apologies and how to incorporate them into righting wrongs. China requires that the wrongdoer who intentionally harms or infringes the intellectual property rights… Read more

Rethinking Rewriting: Tribal Constitutional Amendment And Reform

Published Jun 21, 2015

Abstract This Essay examines the recent wave of American Indian tribal constitutional change through the framework of subnational constitutional theory. When tribes rewrite their constitutions, they not only address internal tribal questions and communicate tribal values, but also engage with other subnational entities, i.e. states, and the federal government. This Essay applies that framework to… Read more

There Is No Santa Claus: The Challenge Of Teaching The Next Generation Of Civil Rights Lawyers In A “Post-Racial” Society

Published Jun 21, 2015

Abstract This Essay takes a fresh look at the scholarship on the practice of cross-cultural and client-centered lawyering. The current scholarship explores methods of training law students to be mindful of the ways that cultural differences can impact legal representation. However, this scholarship has not addressed how to equip students to address issues of racial… Read more

The Politics Of Equality: The Limits Of Collective Rights Litigation And The Case Of The Palestinian-Arab Minority In Israel

Published Jun 21, 2015

Abstract Human and civil rights organizations have long used litigation in an attempt to advance a particular cause, to bolster a certain right, or to bring about social change. A prominent example is strategic litigation filed on behalf of minority groups–including national and indigenous minorities. Such cases typically seek remedies from the government or public… Read more

Diversity In The Legal Profession: From Rhetoric To Reality

Published Jun 21, 2015

Abstract The legal profession, more than others, is uniquely positioned at the helm of social change. The law is shaped by cultural shifts, and it is the lawyer that plays the role of architect. Yet, the legal profession is the least diverse and inclusive profession of all, failing to adapt to the ever changing demographics… Read more

Intersectional Discrimination In U Visa Certification Denials: An Irremediable Violation Of Equal Protection?

Published Jun 21, 2015

Abstract Through the U visa, the Immigration and Nationality Act offers a means to obtain legal immigration status for undocumented victims of domestic violence and other specified crimes who cooperate with law enforcement in the investigation or prosecution of those crimes. In order to apply for such a visa, a crime victim must obtain law… Read more

We Built This City: The Legality Of Community Benefit Agreements For Big Box Construction Under Title VII And The Equal Protection Clause

Published Jun 21, 2015

Abstract Community groups have begun to employ Community Benefit Agreements (CBAs) to combat the legacy of discrimination and segregation in the construction industry. The U.S. Government as well as state and city governments have implemented various plans since the 1960s to try to eradicate discrimination and segregation with a varied pattern of success. In light… Read more