Peter A. Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Colloquy (2015).
A lot of things matter in jury selection, and often the biggest thing that matters is what a lawyer trying a case fears most—even if that fear is an issue of race or possible juror biases. Patrick Brayer’s essay, Hidden Racial Bias: Why We Need to Talk with Jurors About Ferguson, 1 illustrates the importance of confronting one’s fears even when it involves talking about a difficult subject with prospective jurors. In his essay, Brayer discusses the challenges of picking a jury less than ten miles away from Ferguson, Missouri, just days after a police officer shot and killed Michael Brown, an unarmed 18-year-old African-American. Brayer confides in his readers his concern that potential jurors may have harbored biases that would work against their ability to decide the charges against his client fairly, but he had doubts about saying the word “Ferguson.”2 While Brayer did not see race as a major issue in the case, how the jury viewed law enforcement was an important concern in his client’s case.3 Brayer’s fear of discussing the jurors’ views about law enforcement is exactly why he needed to talk with jurors about Ferguson.
Derek W. Black, Freedom, Democracy, and the Right to Education, 116 Nw. U. L. Rev. 1031 (2022).
While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.
A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included racial covenants to appeal to a predominately white market clientele, resulting in a curtailment of opportunities for African Americans to acquire wealth in real estate. Racial covenants have been unenforceable under constitutional law since 1948, but I will argue that they were also a distortion of standard property law and that they undermined the principles on which property law rests. Courts could have recognized this at the outset and later, but for some reasons that this article suggests, they did not, with long-lasting repercussions for racial wealth inequalities.
Eleanor Brown and June Carbone, Race, Property, and Citizenship, Nw. U. L. Rev. Colloquy (2021).
The racial wealth gap is stunning. The net worth of an average White family is nearly ten times greater than that of an African-American family. A 2017 Prosperity Now report finds that for African-Americans, today’s economy is an extractive one; if existing trends continue, the median African-American family will have a net worth of zero by the middle of the twenty-first century. This Essay examines these trends in terms of the relationship between race, property, and citizenship. American democracy has long celebrated economic independence as a desired element of citizenship, forging reciprocal bonds between state efforts to promote and protect property ownership and property owners’ greater investment in community and political stability. African-Americans have long been excluded from these benefits and, in the process, have never fully enjoyed the benefits of American citizenship that comes with political clout. The result creates increased vulnerability, not just to White supremacy, but to economic exploitation. The lack of political clout contributes to lax regulation and enforcement of lending laws, which allow racially motivated predators to act with impunity, undermining the rule of law and perpetuating racial subordination. In the modern era, this predation has made home ownership, higher education loans, and marriage—the traditional pathways into middle-class status—dramatically riskier for African-Americans than for Whites.
To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property’s market value. Between 2009 and 2015, the City of Detroit assessed 55%–85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan’s Wayne County where African-Americans comprise 70% or more of the population—Highland Park and Inkster—have similarly experienced systemic unconstitutional assessments and unprecedented property tax foreclosure rates. This Essay explores whether property tax administration policies in Wayne County disparately impact African-Americans in violation of the Fair Housing Act. I find that unconstitutional assessments and property tax foreclosures occur at a significantly higher rate in Wayne County’s predominately African-American cities than in its predominately white ones. More importantly, the county’s property tax equalization policy has failed to correct these disparities, leading to a violation of the Fair Housing Act. Unjust property tax administration was frequently used to dispossess African-Americans of their lands and other property during the Jim Crow era. Although the motives may be different, this deplorable form of institutional racism is resurgent in Michigan
Within the African American community, the history of the federal government's failure to deliver "forty acres and a mule" to African Americans after the Civil War has been kept alive from one generation to another. For many African Americans, the aborted land reform initiative represents more than just a discouraging chapter in the failed Reconstruction period. The broken promise has become a metaphor for the continued unwillingness of the government to provide African Americans with the same range of economic opportunities that it has afforded white Americans to integrate African Americans into the economic mainstream of society.
Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston asserted that the NCAA amateurism model is not exempt from antitrust law, and a scathing concurrence by Justice Brett Kavanaugh said in no uncertain terms that “[t]he NCAA is not above the law.” In the context of the ever-evolving landscape of student-athlete compensation, this Note examines recent changes to the NCAA compensation model and suggests that antitrust law should be used as a vehicle to change the game by correcting racial inequities perpetuated by this business model. This Note asserts that the ball is now in Congress’s court and advocates for federal legislation and collective bargaining to empower student athletes to seek the full value of their labor.