Reconceiving Reparations: Multiple Strategies in the Reparations Debate

Much of the current debate over African-American reparations is characterized by a posture of confrontation and demand, and is exemplified in the law by seeking redress using the doctrines of tort and unjust enrichment. This confrontational posture presents a variety of legal, political. and ethical problems for reparations advocates, and has alienated potential allies from the reparations movement. This Article examines and exposes the confrontation model\u27s shortcomings, proposing as an alternative a conversational model for reparations debate and advocacy. The conversational framework is not only a superior litigation strategy that more closely approximates traditional civil rights litigation, it also embraces the complexity of the current debate on race, permitting the nation to engage in a more inclusive discussion of the future of race in America

The Warren Court\u27s Regulatory Revolution in Criminal Procedure

The standard story taught to American lawyers, purporting to describe the Warren Court’s criminal procedure “revolution,” is mostly wrong. The story claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. But frightened by the popular backlash against high crime rates, and in particular the passage of the Omnibus Crime Control and Safe Streets Act of 1968, in Terry v. Ohio a cowed Court shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were, in fact, two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry. The two-Warren-Courts hypothesis, at least as applied to Fourth Amendment law, results from a tendentious liberal re-reading of the Court’s jurisprudence. The dominant theme in the Court’s Fourth Amendment jurisprudence was not liberal, but civic republican, one that emphasized inter-branch regulation of the police over the right to privacy. Rather than a rights-expanding and a rights-contracting Warren Court, from the early 1960s onwards, the Court mounted a consistent attack on the pre-existing versions of the right to privacy. Rather than a liberal egalitarian, or privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was the republican interest in personal security. Extending personal security into areas hitherto unregulated by the law was a major concern of the Terry Court. An expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates. Worse, the liberal story has produced a barren doctrinal and political account of the Fourth Amendment. Focusing on privacy as the means of generating equality and antidiscrimination ill fits Fourth Amendment doctrine and ignores major developments in the substantive criminal law that include Terry and culminate with Papachristou v. City of Jacksonville. An obsession with privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation

Breaking Windows as Corrective Justice: Impure Resistance in Urban Ghettos

Reviewing: Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Belknap Press 2016)

High-Resolution Sediment Records of Seismicity and Seasonal Sedimentation from Prince William Sound, Alaska, using XRF Core Scanning

The southern coast of Alaska is a climatically sensitive and tectonically active region, however due to its remoteness and harsh climate there are limited long-term historical records of environmental conditions such as storm frequency, river discharge, and earthquakes. In order to determine the potential for Prince William Sound sediments to contain high-resolution paleorecords of these conditions, a suite of 11 gravity cores was collected within the Sound in order to determine the modern day sediment depositional trends and to develop elemental proxies for earthquakes and seasonal sedimentation. 210Pb/137Cs-derived sedimentation rates and grain size trends indicate that there are two distinct sediment sources to the Sound; an allochthonous source of sediment that is advected into the Sound through Hinchinbrook Entrance, and an autochthonous source of sediment from the Columbia Glacier region of the northern Sound. Cyclic variations in grain size were identified in Hinchinbrook Entrance sediments using the XRF Sr/Pb ratio and were interpreted to be the result of seasonal sedimentation; with coarse-grained sediments deposited during the winter when storm-driven wave and currents in the nearshore region are high, and fine-grained sediments deposited during the summer when costal conditions are less energetic and when the discharge and transport of sediments from the Copper River is high. Additionally, light and dark colored laminations in northern Hinchinbrook Entrance sediments were interpreted to be the result of seasonal variations in the supply and preservation of organic matter; with high concentrations of organic matter preserved in the summer when primary production, the flux of terrestrial organic matter from rivers, and costal upwelling of potentially low oxygenated waters is high, and low organic matter concentrations preserved in the winter when primary production and river discharge are low, and when downwelling conditions likely introduce highly oxygenated waters. The use of the XRF Br/Cl ratio as a proxy for marine organic matter suggested that at least a portion of the dark, organic-rich, summer deposits had a marine origin, and may therefore be a potential proxy for seasonal sedimentation under certain conditions. Gravity flow deposits from the northern Sound were identified as having a source from the Columbia Glacier region using the XRF K/Ca ratio. The gravity flows that caused these deposits were identified as being triggered by historically recorded earthquakes, which likely remobilized sediment on the steep slopes of the northern channel and which then flowed downslope to the south. The results of this study indicate that the rapidly accumulating sediments in Hinchinbrook Entrance potentially contain high resolution records of Copper River discharge, storm activity and primary production, whereas sediments in the northern Sound may contain a regional seismic record

Property, Persons, and Institutionalized Police Interdiction in Byrd v. United States

During a fairly routine traffic stop of a motorist driving a rental car, two State Troopers in Harrisburg, Pennsylvania, discovered that the driver, Terrence Byrd, was not the listed renter. The Court ruled that Byrd nonetheless retained a Fourth Amendment right to object to the search. The Court did not address, however, why the Troopers stopped Byrd in the first place. A close examination of the case filings reveal suggests that Byrd was stopped on the basis of his race. The racial feature ofthe stop is obscured by the Court’s current property-basedinterpretation of the Fourth Amendment’s right to privacy. Although the property-based approach is supposed to be an improvement upon the privacy approach, it merely repeats the problems of incoherence or judicial fiat that undermine theprivacy regime it is supposed to replace. The Court’s newproperty analysis turns upon traditional property notions of possession, control, and the right to exclude. However, property concepts are not neutral in the manner that the Court envisages. For example, it is not clear that property, rather than tort or agency or even criminal law, is uniquely applicable to determine the outcome of any given dispute, so that where there are multiple eligible options, then the judge can pick the one that best suits her own preference. Furthermore, even within property law, there are different ways in which property concepts may be used to interpret the Fourth Amendment right to privacy, and so the Justices can and do select among a palate of conflicting property options. We can contrast the property-based approach with ChiefJustice Roberts’s anti-arbitrariness approach to the Fourth Amendment jurisprudence in two recent Big Data cases, Riley v. California and Carpenter v. United States. In these cases, the Chief Justice repeatedly insists, firstly, that the Fourth Amendment was adopted in response to an institutionalized, state policy targeting the public for mass searches of their homes and persons; and secondly, that technology has transformed personhood in ways that make persons more dependent and insecure. This transformation has made us, not independent, but increasingly dependent and vulnerable, so that we are liable to government searches that go beyond physical limits that would otherwise constrain the scope of the search. The Chief Justice’s anti-arbitrariness jurisprudence rejecting unwarranted mass searches of vulnerable persons applies more generally, outside the realm of big data, to other ways in which persons are vulnerable and dependent. For example, his approach also applies to the type of institutionalized drug interdiction of automobiles discernible in the Byrd case, which raises the specter of mass policing of racial minorities. This mass policing of people of color renders the personhood of minority car divers dependent and vulnerable in similar ways to mobile phone users. Accordingly, a better option would be to develop Chief Justice Roberts’s personhood analysis to take into account ways in which racially targeted mass policing transform personhood in ways that make them dependent and insecure