Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
john powell (w/Caitlin Watt), Negotiating the New Political and Racial Environment, 11 J. L. SOC’Y 31 (2009).
In this article, john and his co-author (a 2009 graduate of the College of Law) address and advance a discussion of race that has taken place in a number of john’s recent articles. The article begins by addressing what the authors call “the process of race.” This portion of the article discusses not only the social construction of race and, both as evidence and as a result, the changing definition of “white” and “nonwhite” through American history, it also relates this process to the cultural devotion to individuality, the decline of civil participation and rise of consumerism, all combining to create a corporate democracy that is deeply racialized.
john describes a discussion in which he was challenged that “if one accounts for neighborhood, wealth, education, family history, the job the person had, and a few other factors, race would drop out.” john’s response was “what do you think race is?” That story serves both as a capsule summary of the explanation of the social construction of race and as a segue (after a discussion of unconscious bias and brain processes that make the use of race a matter beyond intentional control so that race is both “a science fiction and a social fact”) to the “systems” analysis that recognizes the complexity that underlies racialized effects. For example the article discusses some of the many factors that lead to lower minority collegiate enrollment. In a concluding section, the article renews john’s call for “targeted universalism” in response to the problems of racial hierarchy. john and his coauthor argue that the challenge is to “maintain the need for universal goals that most Americans share while acknowledging that we are situated differently for reasons that cannot be explained in terms of moral worth.” This approach, the article contends, “allows the conversation to be about we. . . . But it also takes situatedness seriously.”
john a. powell (w/Caitlin Watt), Corporate Prerogative, Race, and Identity Under the Fourteenth Amendment, 32 CARDOZO L. REV. 885 (2011).
This article uses two recent Supreme Court cases, Parents Involved and Citizens United, as a jumping off point for analyzing the treatment of corporations and racial minorities under the Fourteenth Amendment as related issues. The article traces a hostility to both corporate and civil rights in the pre-civil war Taney Court and describes that Court’s compromise on the former to preserve states rights on the latter (and the resultant Dred Scott decision) as an “accommodation . . . [that] would resurface at the end of Reconstruction.” The article then describes the end of Reconstruction as an economic issue as much as a racial one, “a recommitment to the protection of property under the federal government and the control of non-whites . . . under the States.” The article examines the interplay of corporate economic issues and race over the past century in a number of contexts and notes the Court’s role by describing Parents Involved as “limit[ing] the ability of the public sphere to remedy or otherwise reshape the racial makeup of public schools” and Citizens United as a determination “that the private sphere need not be regulated by the government even when it is seeking to affect the government.” The article disclaims an anti-market or anti-corporation view. To the authors, “the real goat in this story is not the corporation, but the Court.” Their point here is that Lochner and Plessy were not unrelated and that legal structures surrounding race and economic regulation have to be understood as part of the same discussion, rather than separate spheres.
john a. powell, Post-Racialism or Targeted Universalism?, 86 DEN. UNIV. L. REV.785 (2009).
This article, part of a symposium on the election of President Barack Obama, offers a critical examination of the claims that Obama’s election signals a “colorblind” or a “post-racial” society. In discussing these questions and their policy implications, the article provides an overview of a great deal of powell’s recent scholarship. powell uses the term “racialization” — the practices, norms and institutional arrangements that reflect, create and maintain race-related outcomes in society — rather than “racism” in this analysis as a reminder of the broader and fluid context that leads to racialized outcomes.
With this understanding, the article asks “what are we to do with our existing racialized conditions and arrangements, from schools, to housing, to the criminal justice system?” The answer, the article contends, is that reliance on facially “colorblind” policies — what powell calls “false universalism” — and a clear improvement in conscious racial attitudes (reflected in Obama’s election) are inadequate. powell makes these arguments with detailed explanation and examples from a myriad of federal policies and their history.
The article describes “two emerging sites for the practice of racialization today:” structural racialization and implicit bias. The latter term is becoming widely understood, the former refers to institutional arrangements that “continue to distribute racialized outcomes in part because of our different situatedness.” powell concludes the article with a discussion of means of combating these challenges.
john a. powell (w/Jason Reece), The Future of Fair Housing and Fair Credit: From Crisis to Opportunity, 46 CLEVELAND ST. L. REV. 209 (2009).
In this article, john and his co-author examine the origins of the housing crisis, its effect on communities of color and prospects for the future. “There is clear and irrefutable evidence” that “communities of color were disproportionately burdened by the crisis.” Rejecting the polar explanations of individual irresponsibility under the Community Reinvestment Act or discrimination as the primary drivers of this effect, the article details a more nuanced story that involved the securitization of mortgage lending, a consequent drive to extend credit in undercapitalized markets, and vulnerable communities created by discriminatory housing practices in the twentieth century. The article describes both historical and contemporary barriers to fair housing and examines their impact in the credit crisis with a case study of Cleveland, Ohio. Turning to the future and viewing the crisis as an opportunity, the article emphasizes that “housing and fair credit provide more than just shelter and resources in our society; housing and credit are transformational vehicles which can be critical pathways or bridges to opportunity.” The article calls for a number of systemic changes through federal regulation and investment that recognizes the multifaceted nature of the challenge and the need to account for the vulnerabilities and challenges faced by certain communities; policies that try to lift all but understand a need for differential treatment to reach those goals—what john describes as “targeted universalism.”
john a. powell (w/Stephen M. Menendian), Remaking Law: Moving Forward Beyond Enlightenment Jurisprudence, 54 ST. LOUIS UNIV. L. J. 1035 (2010).
This ambitious article addresses a book-length topic: the continued dependence of law on Enlightenment thinking, while the sciences and other disciplines have moved forward, abandoning such Enlightenment concepts as pure objectivity and embracing the inevitable role of context and relativity. The article begins with a crisp summary of the tremendous change wrought during the Enlightenment, when European thinking abandoned its approach dating back to antiquity that “knowledge was ultimately a product of divine revelation,” for belief in empiricism and rationality and a consequent belief in universal truths objectively discoverable through neutral observation and reason. john and his co-author next survey the overwhelming influence of these Enlightenment principles on American law, from the Federalist Papers, to common law subjects such as Criminal law and Torts, to statutory law and legal method.
The article then turns to a demonstration that, while “the Newtonian or classical model grounded the social sciences of the Enlightment” [and Anglo-American law], [m]odern science—from physics and chemistry to biology and psychology—has jettisoned Newtonian concepts and models in favor of more relational approaches.” From there, the article “take[s] seriously the insights of relativity, quantum physics, systems science, and the mind sciences” it describes by confronting their ramifications “for our practice and conceptions of law.” Addressing the famous “judges as umpires” analogy in particular, john and his co-author contend that judges “are not separate from the law they announce or purport to interpret, the facts they deem relevant, or the players they identify as parties.” The article demonstrates impacts of the Enlightment-derived framework it criticizes in concrete terms, with examples from a number of civil rights cases, and demonstrates the difference a post-Enlightenment perspective would make.
Ultimately, though, the article’s “argument is not just that new developments in the physical and mind sciences call into question older paradigms upon which the law is constructed.” More than this, john and his co-author call for recognition of the “need to accept contingency, openness, fallibility, and a different basis for objectivity.” The article gives a sense of what such a paradigm shift in the law and legal thinking might look like in a number of areas.
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