The following articles discuss issues related to Arab American identity and the law, but address other topics as well.
It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert this privilege. This trend is unsurprising given how courts evaluate national security issues, even where individual rights are at stake. Through the institutional process framework, illuminated by Professors Samuel Issacharoff and Richard Pildes, federal courts are reluctant to invalidate unilateral executive action absent a congressional statute addressing the challenged national security conduct.
Jessica A. Clarke, Explicit Bias, 113 Nw. U. L. Rev. 505 (2018).
In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts have refused to consider evidence of biased statements by government officials in cases alleging, for example, that facially neutral laws were enacted for the express purpose of singling out Muslims. Courts outright ignore explicit bias when they consider intentional discrimination to be justified by goals such as law enforcement. And courts have developed a “stray remarks doctrine” in employment discrimination cases to prevent juries from hearing evidence of explicit bias. This Article identifies and criticizes legal arguments against consideration of explicit bias, including concerns about the feasibility of inquiries into intent, worry about undermining otherwise legitimate policies, the desire to avoid chilling effects on free speech, and the fear that confronting explicit bias will result in backlash. It argues that discrimination law should dispense with doctrines that shield explicit bias from consideration.