Category Archives: Race

Mayor Mitch Landrieu’s Address on the Removal of the Monuments in New Orleans

Worth watching, listening, perhaps assigning: Mayor Mitch Landrieu’s Address on the Removal of the Monuments in New Orleans.  I should say that I was not a fan of Landrieu when he ran against Nagin in the wake of Katrina (his ads seemed problematic when it came to race), but this is a good speech.

New Article: “An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld”

New(ish) Article: Eleanor Marie Lawrence Brown, An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld, 103 Calif. L. Rev. 989 (2015).  Abstract below:

The contrast between Amy Chua and Jed Rubenfeld’s The Triple Package (Chua & Rubenfeld 2.0) and Chua’s previous work, World on Fire (Chua 1.0), is striking. Chua & Rubenfeld 2.0 contends that particular ethnic and religious groups are spectacularly successful in the United States because of a “triple package” of traits that are largely cultural; however, there is nary a word in Chua & Rubenfeld 2.0 about the role that law might play in contributing to wealth acquisition among the subject groups. In contrast, Chua 1.0 clearly acknowledges the role of law through “law-in-culture” when accounting for the wealth of those whom Chua calls “market- dominant minorities.” “Law-in-culture” consists of binding rules, such as default contract terms, that often underlie market relations in perilous “third world” environments. While these rules are not enforceable by the state, they are powerful because those who ignore them risk ostracism by their co-ethnics, with whom they often contract.

Perhaps because Chua & Rubenfeld 2.0 focuses on particular ethnic groups within the United States—a country that epitomizes the protection of property and contract rights—it overlooks the potential role of “law-in-culture” in accounting for wealth acquisition of particular groups. This oversight is significant. Many of the subject ethnic groups had contracting advantages underwritten by “law-in- culture” in their countries of origin.

I am particularly concerned about the absence of a discussion of institutions—whether underwritten by “law” or “law-in-culture”— when Chua & Rubenfeld 2.0 discusses Black people. A case in question is Nigerian Americans. Given their focus on Nigerian American economic success, a comparison to African American economic success (or lack thereof) is foreseeable. The question is inevitable: if Nigerian immigrants do so well in the United States, what does this say about the continuing scholarly emphasis on institutional (as opposed to cultural) impediments to native Black, that is, African American economic success?

Chua & Rubenfeld 2.0 acknowledges institutional impediments to African American success, but they say very little about institutional advantages that Nigerian Americans may have. In fairness to Chua and Rubenfeld, they are likely constrained by the dearth of scholarship on the pre- and post-migration trajectories of Nigerian Americans, who are largely recent migrants. Thus, to explore the potential relevance of institutional factors, I consider the original Black “triple package” group for which much more scholarship is available, West Indians. I contend that institutional background matters. For example, even the earliest turn-of-the-century Black West Indian migrants gained exposure to an institutional context for wealth acquisition through the extension of property and contract rights to slaves and their descendants in the West Indies. This stands in stark contrast to the institutional context that generally existed for African Americans, not only during slavery, but also in the pre-civil rights southern United States.

Thus, despite the historical sociological focus on West Indian American success, I question the notion that West Indian Americans are necessarily a useful comparative sample to African Americans simply because they are Black—particularly given the historical disparity between West Indian Americans and African Americans in accessing institutions for wealth creation. The question then becomes if the same might be true of Nigerian Americans.

Another Racial Dot Map–perhaps good for class use.

The map, which you can change focus and level, is available here, and an overview article is available here.

Article: Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification

Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).

Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.

News Coverage of Supreme Court’s decision in Bank of America v. Miami

Here: New York Times, Washington Post, Miami Herald (AP), and the decision itself is here.

New Article: “The Federal Housing Administration and African-American Homeownership”

New Article: David J. Reiss, The Federal Housing Administration and African-American Homeownership, ABA J. Afford. Hous. & Cmty. Dev. (Forthcoming).  Abstract below:

The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. It achieved success with some of its goals and had a terrible record with others. Its impact on African-American households falls, in many ways, into the latter category. The FHA began redlining African-American communities at its very beginning. Its later days have been marred by high default and foreclosure rates in those same communities.

At the same time, the FHA’s overall impact on the housing market has been immense. Over its lifetime, it has insured more than 40 million mortgages, helping to make home ownership available to a broad swath of American households. And indeed, the FHA mortgage was central to America’s transformation from a nation of renters to homeowners. The early FHA really created the modern American housing finance system, as well as the look and feel of postwar suburban communities.

Recently, the FHA has come under attack for the poor execution of some of its policies to expand homeownership, particularly minority homeownership. Leading commentators have called for the federal government to stop employing the FHA to do anything other than provide liquidity to the low end of the mortgage market. These critics’ arguments rely on a couple of examples of programs that were clearly failures, but they fail to address the FHA’s long history of undertaking comparable initiatives. This Article takes the long view and demonstrates that the FHA has a history of successfully undertaking new homeownership programs. At the same time, the Article identifies flaws in the FHA model that should be addressed in order to prevent them from occurring if the FHA were to undertake similar initiatives to expand homeownership opportunities in the future, particularly for African-American households.

Article: Racial Subjugation by Another Name? Using the Links in the School-to-Prison Pipeline to Reassess State Takeover District Performance

Article: Steven L. Nelson, Racial Subjugation by Another Name? Using the Links in the School-to-Prison Pipeline to Reassess State Takeover District Performance, 9 Geo. J. L. & Mod. Crit. Race Persp. (2017).

The state takeover of locally governed schools in predominately black communities has not disrupted the racial subjugation of black people in the United States. Using proportional analyses and the cities of Detroit, Memphis, and New Orleans as sites, the researcher finds that state takeover districts have not consistently disrupted the school-to-prison pipeline for black students in urban settings. Furthermore, the researcher found little evidence that would support broader and more intentional efforts to combat the over disciplining of black students in the United States Department of Education’s proposed rules for implementing the Every Student Succeeds Act, the most recent reauthorization of the Elementary and Secondary Education Act. In fact, the legislation perpetuates strategies that have aided the creation of the school-to-prison pipeline and supplies only strong recommendations to replace strategies that have compounded the harm of the school-to-prison pipeline. This finding is important in the context of education reform, particularly as researchers begin to question the motives and results of contemporary education reform. Moreover, this work is important to the current scholarly discussions that consider the many civil rights that black communities are required to exchange for the prospect of better schools.

Article: Demosprudence on Trial: Ethics for Movement Lawyers, in Ferguson and Beyond

Article: Justin Hansford, Demosprudence on Trial: Ethics for Movement Lawyers, in Ferguson and Beyond, 85 Fordham L. Rev. 101 (2017).

A complex, dynamic, and creative tension endures between law and social movements. Not only can law affect and even help from social movements, but social movements can affect and even help form law. Just as jurisprudence is the study of how judges make law, demosprudence is the study and practice of how social movements can also affect change through the law.

This Article explores how movement lawyers can use demosprudence to promote social change outside of the courtroom. It uses the civil rights movement and the Black Lives Matter movement in Ferguson as examples. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.

Op-Ed: “DOJ Begins to Turn Its Back on Policing Reform”

Op-Ed: Chiraag Bains, “DOJ Begins to Turn Its Back on Policing Reform,” Take Care Blog, April 4, 2017.

New Article: “Black Boys Matter: Developmental Equality”

New Article: Nancy E. Dowd, Black Boys Matter: Developmental Equality, 45 Hofstra L. Rev. 47 (2016).  Abstract below:

The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.

The life course of Black boys is the basis for two groundbreaking contributions. First, the Article proposes a model, the developmental equality model, to achieve children’s equality. It takes developmental scholarship centered on analysis of the experience of children of color and other “outsider” groups of children and proposes it as a critical addition to the law’s use of development as an interpretive lens or rule of decision. Rather than imagining a child without race, gender, or class when those identities so powerfully affect development, I argue identities, and their intersectionalities, must be central to the developmental model. Most importantly, this race-conscious developmental scholarship must be fused with equality principles to address structural discrimination responsible for children’s inequalities. My developmental equality model brings this critical perspective to law, as a way to meaningfully confront state action that challenges or blocks children, and as a basis to require support for all children’s developmental opportunities.

The second critical contribution of the Article is its application of the developmental equality model to the life course of Black boys from birth to age 18. The article summarizes a comprehensive interdisciplinary collection of social science literature on the development of Black boys. The developmental equality model is tested against this data; and the model suggests where policy and litigation should focus to dismantle systemic discrimination that blocks opportunity for Black boys. The data on Black boys is critical because Black boys matter. But the data is also important because it exposes inequalities that affect all children at the bottom of hierarchies among children. This example therefore serves to expose and deal with all children’s inequalities.

The synergy between these two pathbreaking contributions provides the basis for the usefulness of the developmental equality model to achieve real, substantive equality. The final section of the article sketches the potential use of the model to advance litigation and policy strategies.