The War Against Chinese Restaurants

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction. The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities denied Chinese restaurants licenses, and the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. The unions, of course, did not eliminate Chinese restaurants, but Asians still lost because unions achieved their more important goal by extending the federal immigration policy of excluding Chinese immigrants to all Asian immigrants. The campaign is of more than historical interest today. As current anti-immigration sentiments and efforts show, even now the idea that white Americans should have a privileged place in the economy, or that nonwhites are culturally incongruous, persists among some

Felon Disenfranchisement and Democracy in the Late Jim Crow Era

Book review of "Locked Out: Felon Disenfranchisement and American Democracy" by Jeff Manza and Christopher Ugge

Pleading Guilty Without Client Consent

In some cases, lawyers are, and should be, permitted to conclude plea bargains to which their clients have not agreed. Because clients bear the consequences of a conviction, ordinarily, clients should choose between a plea and the possibility of acquittal at trial. Further, clients have the right to decide that even though conviction is practically certain, moral or political reasons warrant insistence on a trial. But some clients have the goal of minimizing incarceration, have been offered reasonable pleas, face substantially greater sentences if convicted after trial, have no plausible ground for acquittal and nevertheless decline to plead guilty. They may do so because they are cognitively unable to make a decision or complete a plea colloquy, or because they are holding out for a miracle. The traditional understanding of lawyer-client decision-making authority would lead to the conclusion that the client has the absolute right to reject a plea, even if it inevitably makes the client worse off, on her own terms, by increasing the imprisonment she is trying to avoid. This Article proposes that the Supreme Courts decision in Florida v. Nixon leads to a different conclusion. In Nixon, a unanimous Court held that defense counsel could tell the jury in an opening statement that a defendant was guilty in hopes of improving the clients position for sentencing. The principle of Nixon has been expanded in lower courts to cover a range of issues and contexts. If Nixon allows a concession of guilt in the inchoate hope of obtaining a more favorable sentence, it should also allow a concession to obtain a specific agreement. Nixon does not extend to situations where the client actually objects to defense counsels action. But short of actual client objection, defense counsel should be able to assist a client in achieving her goal of minimizing incarceration or avoiding execution even if that means making concessions on issues that were once thought to require personal action by the client

Policy, Preemption, and Pot: Extra-Territorial Citizen Jurisdiction

In contemporary America, legislators send messages about values through symbolic legislation and lawsuits. One conflict is between states where marijuana is legal and others that continue to ban it. This Article evaluates what might happen if anti-marijuana states made it illegal for their citizens to purchase or use marijuana, borrowing a page from the playbook of activists opposed to reproductive choice who propose that if Roe v. Wade is overturned, individuals could be prohibited from traveling to another state for the purpose of obtaining an abortion. Although such laws would be hard to enforce, they still present important questions of state authority. The Supreme Court has recognized state jurisdiction over citizens and over state territory. If, say, Alabama prohibited gambling in its territory, or by its citizens anywhere in the world, while Nevada’s public policy was to allow gambling in its territory, a difficult conflict would be presented. However, the marijuana controversy does not present the same problem. Federal law categorically prohibits possession, use, and distribution of marijuana. In order to hold that state marijuana laws are not preempted by the federal ban, courts have found that the states do not have a public policy in favor of marijuana, they merely decline to prohibit it. As a result, the policies of the anti-marijuana states do not conflict with the interests of other states in the way that states opposed to abortion or gambling might conflict with states affirmatively allowing those activities. Although the law in this area is not particularly developed, making reliable prediction difficult, a state’s national ban on marijuana seems much more likely to pass muster than would a ban on activities affirmatively promoted by another state

Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction

In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of philosophy and criminal law. Notwithstanding the impressive intellectual efforts devoted to the task, no single scholar or viewpoint appears to be on the verge of generating practical consensus about the concepts of justification and excuse, categorization of the defenses, or categorization of difficult individual cases. This Essay suggests that none of these goals can be usefully advanced through the justification/excuse distinction

Race and the Disappointing Right to Counsel

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This Essay is doubtful that better lawyers will significantly address that problem. When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of innocence claims at trial, issuing important, pro-defense decisions in the areas of confrontation, jury factfinding, the right to present a defense, and elsewhere. The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly, attempting to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement, and in sentencing practices are essentially unchallengeable. Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions