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Paper Talks & Workshops

Session 1:
“Comparative and Global Critical Race Theory”

Session 2:
“Women of Color and the Contraceptive Coverage Benefit: A Gain They Can Celebrate?”

Session 3:
"Shifting the Lens: U.S. Settler Colonialism and Why Race Still Matters”

Session 4:
"Something of Race Remains: Race and Identity in American Public Education” and “Undoing Race? Reconciling Multiracial Identity with the Pursuit of Racial Equality”

Session 5:
"The Impact of Slavery on Private Family Law” and “The Legal Manufacture of Hardworking Bastards: Marriage, Bastardy, Apprenticeship Laws, and the Policing of Race and Labor in North Carolina, 1741-1870”

Session 6:
"Interest Convergence and the Right to Counsel” and “Immigrants and the Contemporary White Racial Frame: Evidence from Letters to the Editor of a Southern Daily Newspaper”[m]

Session 1: “Comparative and Global Critical Race Theory”

This workshop will explore the added value of comparative critical race theory and what it means when CRT’s analyses travel from the domestic to the international/global level.

In an open debate, the three workshop conveners will discuss issues such as what it means to do comparative critical race theory, whether and how foreign experiences, models and cases of colourblindness, postracialism and/or intersectionality can help elucidating domestic perspectives and, vice versa, what CRT can bring to the table at an international level and to global discussions about post-colonial history and theory, theories of migration and ethnicity, and race theory.

This roundtable will also provide the occasion to discuss the work that has already been published or that is being published in the domain and by introducing the existing networks, such as CRT Europe. Ultimately, the idea of this roundtable is to understand how such a new approach is not only useful but also necessary in an increasingly globalized and post-racial world.

Mathias Möschel is a post-doctoral researcher at Université Paris Ouest Nanterre La Défense (France). He researches and teaches on Critical Race Theory, Feminist Legal Theory, International Human Rights and Comparative Anti-discrimination Law. He received his law degree from University of Milan (Italy), an LL.M. from U.C. Berkeley School of Law and a PhD from the European University Institute of Florence (Italy). The book “Law, Lawyers and Race: Critical Race Theory from the United States to Europe” is forthcoming with Routledge in 2014.

Tanya K. Hernandez is a Professor of Law at Fordham University School of Law, where she teaches Comparative Employment Discrimination, Critical Race Theory, The Science of Implicit Bias and the Law: New Pathways to Social Justice, and Trusts & Estates. She received her A.B. from Brown University, and her J.D. from Yale Law School, where she served as Note Topics Editor of the Yale Law Journal. Her most recent publication is the book “Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response,” (Cambridge Univ. Press 2013).

Angela P. Harris is a Professor of Law at UC Davis Law School, where she teaches Critical Race Theory, Feminist Jurisprudence, Law and Cultural Studies, Race Relations, Women's Rights, and Law and Society. She received her bachelor’s degree from the University of Michigan and a master’s degree in social science (with a specialization in the sociology of culture) from the University of Chicago, where she also received her J.D. Her most recent publication is the book Race and Equality Law (Ashgate, 2013).

Session 2: “Women of Color and the Contraceptive Coverage Benefit: A Gain They Can Celebrate?” and “Feminist Contestation: Violence Against Women and the War on Terror”

“Women of Color and the Contraceptive Benefit: A Gain They Can Celebrate?”

One of the key obstacles to the health of minority women and children is a lack of access to quality reproductive health care. The contraceptive coverage benefit of the Affordable Care Act promised to remove this severe barrier and make quality reproductive health care more accessible and affordable for minority women than ever before. However, on the other hand opponents have filed over a hundred 100 lawsuits to deny access to the full benefit under the guise of religious freedom.

In its upcoming term the Supreme Court will hear the consolidated cases of Conestoga Wood Specialties, cabinet makers, and Hobby Lobby, a nationwide craft supply chain, and be asked to determine (among many things) whether a for-profit corporation should be considered a legal person with a constitutional right to religious exercise and under the Religious Freedom and Restoration Act, whether that right is substantially burdened by providing healthcare benefits the corporation opposes. Essentially the corporations are asking the courts to move personal healthcare decisions from their hands of female employees and defendants into their bosses’ hands by allowing employers to deny provision of the federal healthcare benefit at their discretion.

In the conversation around this pivotal decision too little attention has been paid to the importance of the contraceptive coverage benefit to women of color and the socio-economic dimensions shaping this need. Minority women who work year-round are paid less than their underpaid peers, white non-Hispanic women and minority men, and significantly less than white non-Hispanic men. Despite earning 36% to 45% less than white non-Hispanic men because of this disparity, they often bear the responsibility for supporting their household. Their limited disposable income presents an obstacle to using long-acting but expensive forms of contraception or consistently purchasing short-term forms of contraception. These economic barriers in tandem with a lack of primary health care providers, cultural and language barriers, discrimination and other impediments frustrate minority women’s consistent and effective contraceptive use, and in term result in disproportionately higher rates of unintended pregnancy.

Unintended pregnancies in turn exacerbate the medical and socioeconomic conditions that trouble minority women and children. Unplanned pregnancies limit minority women’s opportunity to assess and manage the pregnancy-related medical risks that disproportionately affect them. These pregnancies also reinforce socioeconomic barriers, including barriers to educational, professional and economic attainment. Conversely, women seeking to control their reproduction credit birth control with allowing them to pursue financial, educational and professional goals as well as better care for themselves and their families. While minority women continue to encounter substantial barriers to advancement, access to effective contraception enhances their autonomy and undercuts key obstacles. The Supreme Court’s decision will bear serious consequences for women of color; their concerns must be part of the conversation as we explore the case’s potential import.

Shari Inniss-Grant was a Georgetown Women’s Rights and Public Policy Fellow for Reproductive Rights at the National Women’s Law Center. She focused on researching and tracking litigation opposing the Affordable Care Act’s contraceptive coverage benefit, organizing the Reproductive Law & Policy 101 summer training, and advancing reproductive health care. While she grew up in St. Thomas, Barbados, she moved to Washington, DC to study English Literature at Howard University before attending law school. During her time at Yale Law School, Shari explored the politics of intersectionality through the Rebellious Lawyering Conference; worked with the LGBT Litigation Project; served as director for the Temporary Restraining Order Project, a domestic violence initiative; helped a client apply for legal relief through VAWA as an intern at New Haven Legal Assistance; and participated in the Lowenstein Human Right Clinic, where her small team worked with the American Civil Liberties Union to investigate the trafficking of Third Country Nationals (TCNs) on American bases by US government contractors and publish “Victims of Complacency: The Ongoing Trafficking and Abuse of Third Country Nationals by U.S. Government Contractors.”

Candace Gibson comes to the National Latina Institute for Reproductive Health as a Law Students for Reproductive Justice (LSRJ) Fellow. She assists the Policy Department by providing legal and legislative analysis and research to our three program areas. Candace received her J.D. from the University of Utah S.J. Quinney College of Law in May 2012. Candace is not new to the Institute. While in law school, she completed an internship with the Institute where she conducted research and analysis on various immigration law issues. Prior to law school, she worked at Comunidades Unidas, a nonprofit organization in Utah committed to eliminating health disparities in ethnic and refugee communities, facilitating the work of the Multicultural Health Network and the Democracy Schools Program. Candace is the first in her family to graduate from college and is proud of her bi-ethnic, bi-cultural, Salvadoran background. Candace graduated from Smith College in 2007 with a B.A. in Government and in Spanish.

“Feminist Contestation: Violence Against Women and the War on Terror”

The current dominant approach to violence against women as it manifests in global institutions is punitive. As the mantra goes: “prevent, prosecute, punish.” However, approaches to violence against women are a contested terrain for feminists. This contestation emerges when punitive mainstream feminist approaches to VAW meet strands of feminism emerging from critical race theory and third world approaches to international law.

Modeled after Angela Harris’ groundbreaking 1990 article Race and Essentialism in Feminist Legal Theory my article explores how the dominant punitive perspective in global feminist activism distorts feminist contestation on approaches to violence against women (VAW). I seek to understand how, despite this feminist contestation on approaches to violence, the carceral mode of feminist analytics emerged as the dominant logic of feminist intervention to address violence against women. I interrogate the highly carceral movement on violence against women through an exploration of its connections with law, development, and the war on terror. I argue that the rise of carceral feminism globally is partly due to the emergence of indicators – transforming women’s rights, and the issue of violence against women in particular, into data points. An examination of indicators allows us to imagine how we might reframe technocratic aspects of law and development as it pertains to women’s rights in order to actualize a new set of ideas. Most importantly, rethinking the carcerality of law and development draws our attention to situations of shared vulnerability and an examination of the institutional (state and non-state), social, and cultural arrangements that perpetuate violence in its various forms.

Aziza Ahmed is an expert in health law, human rights, property law, international law, and development. Her interdisciplinary scholarship focuses on issues of both domestic and international law. She teaches Property Law, Reproductive and Sexual Health and Rights, and International Health Law: Governance, Development, and Rights. In addition to this work, Professor Ahmed also examines challenges facing Muslim minority communities post 9/11. Professor Ahmed holds a J.D. from the University of California Berkeley, an MS in Population and International Health from the Harvard School of Public Health, and a BA from Emory University. Prior to joining the Northeastern faculty, Professor Ahmed was a research associate at the Harvard School of Public Health Program on International Health and Human Rights. She came to that position after a Women's Law and Public Policy Fellowship with the International Community of Women Living with HIV/AIDS (ICW). At ICW Professor Ahmed engaged in numerous human rights projects pertaining to law and health. Professor Ahmed has worked on legal issues in a variety of country contexts including South Africa, Namibia, India, the United States and the Caribbean, and has worked with various United Nations agencies and international and domestic non-governmental organizations.

Professor Ahmed served as an expert member of the Technical Advisory Group on HIV and the Law convened by the United Nations Development Programme (UNDP) and as an expert for the American Bar Association. She is on the board of the Center for Health and Gender Equity (CHANGE) and the Sexuality Information and Education Council of the United States (SIECUS). Professor Ahmed has been a peer referee for numerous publications including the Lancet, the Bulletin of the World Health Organization, Global Public Health, the Journal of the International AIDS Society, American Journal of Public Health, and the Signs Journal of Women in Culture and Society. She has also served as a grants referee for several funding institutions. Professor Ahmed has received grants from the Ford Foundation and the Northeastern University School of Law Health Law and Policy Seed Grant Initiative.

Session 3: “Shifting the Lens: U.S. Settler Colonialism and Why Race Still Matters”

Struggles for civil and human rights in the U.S. were energized by the independence and decolonization movements sweeping Africa and Asia during the 1960s and '70s. For some, this translated, at least rhetorically, into analyses describing peoples of color within the United States as internally colonized. However, this perspective was not rigorously theorized, in part because of significant differences between "classic" colonialism and conditions within the U.S.

Since then, settler colonial studies has emerged, providing unique insights into racial dynamics in contemporary America, and opening up a range of remedial options. The implications of settler colonial theory are hotly contested and under-theorized, particularly with respect to non-Indigenous Others—peoples brought to this country as enslaved labor, incorporated by territorial annexation, or induced to migrate without the option of becoming part of the settler class.

An overview of settler colonial theory and how it can reshape discussions of race in the U.S. will be provided by Natsu Taylor Saito. Genocide, slavery, and the ongoing relationship between global and domestic colonialism will be discussed by Anthony Paul Farley. Excerpts from Richard Delgado's work on the applicability of colonial theory to Latinas/os in the United States will also be presented.

Building on these diverse perspectives and those of the participants, this workshop will provide a lively and engaged forum for a discussion of ways in which a structural analysis reflective of ongoing colonial relations can help us understand how and why race matters today.

Natsu Taylor Saito (J.D. Yale Law School, 1987) is a Professor of Law at Georgia State University in Atlanta, where she has taught International Human Rights, Race and the Law, International Law and Indigenous Peoples, Immigration, and related courses since 1994. In addition to some two dozen law review articles, Natsu is the author of two books, Meeting the Enemy: American Exceptionalism and International Law (NYU Press, 2010) and From Chinese Exclusion to Guantánamo Bay: Plenary Power and the Prerogative State (Univ. of Colorado Press, 2006). A third book, Settler Colonialism and Race in America?, is under contract with NYU Press. A former community organizer, Natsu has been active in efforts to support indigenous rights, academic freedom, political prisoners, and homeless persons. She is a co-director, with Kathleen Cleaver, of the Human Rights Research Fund, and a member of the Board of Governors of the Society of American Law Teachers.

Anthony Paul Farley is the James Campbell Mathews Distinguished Professor of Jurisprudence at Albany Law School. Farley was a tenured professor of law at Boston College Law School, where he taught for sixteen years prior to Albany. Farley was the 11th holder of the Haywood Burns Chair in Civil Rights at CUNY School of Law. Farley's work on Critical Race Theory has appeared in After the Storm: Black Intellectuals Explore the Meaning of Hurricane Katrina (Troutt ed., The New Press: 2006); Cultural Analysis, Cultural Studies & the Law (Sarat & Simon eds., Duke University Press: 2003); Crossroads, Directions & A New Critical Race Theory (Valdes et. al. eds., Temple University Press: 2002); Black Men on Race, Gender & Sexuality (Carbado ed., NYU Press: 1999); and Urgent Times: Policing and Rights in Inner City Communities (Meares & Kahan eds., Beacon: 1999). His work has also appeared in numerous academic journals, including the Yale Journal of Law & Humanities, the NYU Review of Law & Social Change, the Southern California Interdisciplinary Law Journal, the Michigan Journal of Race & Law, the Cardozo Law Review, Law & Literature, the Berkeley La Raza Law Journal, and the Columbia Journal of Race & Law. Prior to entering academia, Farley served as an Assistant United States Attorney in the District of Columbia and practiced law as a Corporate/Securities Associate with Shearman & Sterling in New York City.

Session 4: “Something of Race Remains: Race and Identity in American Public Education” and “Undoing Race? Reconciling Multiracial Identity with Equal Protection”

Something of Race Remains: Race and Identity in American Public Education

The Supreme Court’s 2008 Parents Involved decision severely curtailed the benign consideration of race in school assignments, thus eliminating a tool used by K-12 school districts to maintain racial integration and minimize racial isolation. In the wake of the decision, school districts have turned to socioeconomic integration, using class in an attempt to cultivate more (racially) diverse primary and secondary schools. In higher education, colleges and universities, wary of Supreme Court precedent that limits the use of race in admissions policies, have also increasingly turned to “race-neutral” policies that consider class.

Class, however, is not only ineffective at cultivating genuine racial and ethnic diversity in public schools, but also affords students limited equal protection given the inferior legal status afforded class in Fourteenth Amendment jurisprudence. Moreover, considerations of class have balkanized vulnerable groups that might have otherwise coordinated efforts to guarantee equal treatment from the state. Such is the case in the Ascension Parish School District, where an African-American parent brought suit against the school district for increasing the number of poor children in his majority-minority neighborhood school. Class has similarly created conflict in higher education, where debates rage about who the proper beneficiaries of affirmative action policies should be, and whether consideration of class, instead of race, would better promote diversity.

Given the seeming limitations of identity-based policies centered on race or class to either encourage coalition-building or effectively promote social justice, critics of identity-based frameworks might instead prefer these policies to be guided by post-identity frameworks like vulnerability or universal human rights. And, yet, more universal frameworks may fail to account for the unique experiences of particular groups in the American education system, and the extent to which discrimination and uneven distribution of goods in the system have been driven by identity. Primary and secondary African-American students, for example, continue to be classified as educationally mentally retarded—a classification understood to be heavily correlated with class—at higher rates than Latino students, despite similar rates of poverty in both groups.

Accordingly, the education context provides an opportunity to further consider the continuing viability of identity frameworks as vehicles to achieving diversity and promoting social justice in American public education. Using education law and policy in K-12 and higher education to frame the inquiry, this paper considers the extent to which identity-based legal frameworks are still needed, even as they inadequately provide equal protection for vulnerable groups, promote marginalization and subordination within vulnerable groups, and ignore intersectionality that might be leveraged to promote substantive justice. Finally, the paper considers the implications of such an inquiry outside of education law and policy, where calls for post-identity legal approaches to equity increase.

Osamudia James received a B.A cum laude from the University of Pennsylvania in 2001, a J.D. cum laude from the Georgetown University Law Center in 2004, and an LL.M. from the University of Wisconsin Law School, where she was also a William H. Hastie Fellow from 2006 to 2008. She writes and teaches in the areas of Education Law, Race and the Law, Administrative Law, and Torts. Some of her more recent work includes "White Like Me: The Diversity Rationale's Negative Impact on White Identity Formation," which will be published in the New York University Law Review, and "Opt-Out Education: School Choice as Racial Subordination," to be published in the Iowa Law Review. Professor James was a 2014 co-recipient of the Derrick A. Bell Award, a national award presented by the AALS Minority Groups Section to a junior faculty member who, through activism, mentoring, teaching and scholarship, has made an extraordinary contribution to legal education, the legal system, or social justice.

Undoing Race? Reconciling Multiracial Identity with Equal Protection

Read a draft of this piece online here.

The number of multiracial individuals in America—many of whom define their racial identity in different ways—has grown dramatically in recent years and continues to increase. From this demographic shift has emerged a movement seeking unique racial status for multiracial individuals. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Article, I explore the potential impact of multiracialism—and multiracial identity in particular—on the future of racial classifications under equal protection doctrine.

As a framework for its analysis, the Article invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the traditional normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may support policies of racial self-identification and the recognition of a unique multiracial identity. There is a danger, however, that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race will use multiracialism to “undo race”—i.e., to undermine the use of racial classifications altogether.

In response to that fear, this Article argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in countering broader societal racial subordination. Where possible, the law should allow for multiracial individuals to define their own racial identity, but as long as it remains more aspirational than realistic, the individual’s perception of race should not be used or manipulated to override the necessary use of traditional race-based classifications.

Lauren Sudeall Lucas is an assistant professor at the Georgia State University College of Law. Her scholarly work to date has touched on the intersection of constitutional law and criminal procedure, with a focus on structural indigent defense reform, and the relationship between rights and identity. Other research interests include the constitutional treatment of multiracial and economically and politically marginalized populations. Her recent scholarship has appeared or will appear in the California Law Review, Minnesota Law Review, and the Federal Sentencing Reporter, among other publications.

Before joining the academy, Professor Lucas served as a law clerk to Judge Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit and to Justice John Paul Stevens on the Supreme Court of the United States. She then worked at the Southern Center for Human Rights in Atlanta, first as a Soros Justice Fellow and later as a staff attorney. At the Center, she represented indigent capital clients in Georgia and Alabama and litigated civil claims regarding constitutional violations within the criminal justice system, based primarily on the right to counsel. She currently serves on the Center's board of directors and on the Indigent Defense Committee of the State Bar of Georgia.

Professor Lucas graduated magna cum laude from Harvard Law School, where she served as treasurer of the Harvard Law Review. She received her B.A. with distinction from Yale University.

Session 5: “The Impact of Slavery on Private Family Law” and “The Legal Manufacture of Hardworking Bastards: Marriage, Bastardy, Apprenticeship Laws, and the Policing of Race and Labor in North Carolina, 1741-1870”

The Impact of Slavery on Private Family Law

Read an excerpt of this piece online here.

The presentation and coverage of family law in legal course books, legal history books, and family law courses primarily focuses on private family law. Private family law doctrine is defined by individual and family liberties carved out of the Bill of Rights and the Fourteenth Amendment. In most American law schools, family law is taught using one particular prototype of family – a white, middle-class, heterosexual married couple with children. This prototype is the foundation for private family law doctrine, which is typically practiced in domestic relations or family law courts, and centers on divorce, child custody, alimony, and child support. A separate set of courts, usually referred to as the ‘public’ family law courts, deal with issues arising from non-marital unions. These issues include paternity establishment and child support, child abuse and neglect, domestic violence, and juvenile justice. The litigants in public family courts tend to be poor and disproportionately African-American. The private-public separation within the family court system is a reflection of how race and class issues are marginalized within the family law canon. This article explores the source of this separation, and it is the first article to note the ways in which slavery has impacted private family law doctrine. How black family groups and individuals influenced private family law is under-theorized in legal literature. This article highlights legal cases that illustrate the ways in which slavery affected the dissolution of marriage, property division, alimony and child support, and inheritance for both white and black families.

Jessica Dixon Weaver received her B.A. from the University of Pennsylvania in 1992 and her J.D. from the University of Virginia School in 1995. While at the University of Virginia School of Law, Professor Weaver served as notes development editor of the Virginia Law Review. She was the first director of the W.W. Caruth, Jr. Child Advocacy Clinic at SMU Dedman School of Law in 2002, where she developed and taught an interdisciplinary course and supervised law students who served as guardians and attorneys ad Litem for abused and neglected children. Professor Weaver was promoted from lecturer to senior lecturer before joining the tenure track faculty at the law school in 2009. She was honored in 2009 as an Extraordinary Minority in Texas Law by the Texas Lawyer for her work with the child advocacy clinic. Professor Weaver was the 2012 Chair of the Children and the Law Section of the American Association of Law Schools (“AALS”). She has written several articles, including The African-American Child Welfare Act: A Legal Redress for African-American Disproportionality in Child Protection Cases, The Texas Mis-Step: Why the Largest Child Removal in Modern U.S. History Failed, The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children, and Grandma in the White House: Legal Support for Intergenerational Caregiving. She has presented her research and articles at Washington and Lee School of Law, Emory University School of Law, Washington University School of Law, the University of Iowa, and Fordham University School of Law. She is currently working on several articles, including Overstepping Ethical Boundaries? Limitations on State Efforts to Provide Access to Justice in Family Courts (forthcoming, Fordham Law Review 2014), The Impact of Slavery on Private Family Law, and Of Babes and Elders: A Unified Approach to Intergenerational Caregiving. Professor Weaver teaches Family Law, Children and the Law, and Professional Responsibility.

The Legal Manufacture of Hardworking Bastards: Marriage, Bastardy, Apprenticeship Laws, and the Policing of Race and Labor in North Carolina, 1741-1870 (Paper Talk)

This article-in-progress, based on archival research in North Carolina, examines the history and interplay of marriage, bastardy, and apprenticeship laws from the state’s Colonial Era to Reconstruction. Restrictive marriage laws and expensive fees to marry made it almost impossible for free African Americans and poor whites to marry. As a result, many children were born outside of marriage and became legal “bastards” who were subject to the control of the local courts. Parents who could not post surety bonds to ensure that their non-marital children would not become burdens to the county relief rolls could be, and were, indentured. In addition, bastard and orphaned children were required to be apprenticed from a young age until adulthood, providing unpaid labor to landowners in a form of involuntary servitude that is often ignored by historians who give narrow focus to slavery. Bastardy statutes in North Carolina, which were treated as criminal statutes, were critical to the policing of persons, property, racial boundaries, and labor in the South before, during, and after the Civil War. This study reveals, first, that repressive laws were used to maintain social and economic control over the lives of free people of color and to police their interactions with both slaves and whites. At the same time, this study reveals that free blacks of color resisted the repressive power of law—sometimes with the help of powerful white elites. The analysis highlights the delicate legal balance involved in maintaining a social order rooted in inequality while also maintaining the legitimacy of the law. This research also makes clear that North Carolina laws were designed to prevent the formation of black families and to keep young African American men, who Whites considered a threat to public security, under the control of county officials. Legacies of these laws, I argue, live on in current laws and policies.

Kaaryn Gustafson author is the Ellen Ash Peters Professor of Law at UConn School of Law. She earned her A.B., magna cum laude, in sociology from Harvard College, and also holds a J.D. and Ph.D. in Jurisprudence and Social Policy from the University of California at Berkeley. She is the author of Cheating Welfare: Public Assistance and the Criminalization of Poverty (NYU Press, 2011), which was the co-winner of the 2012 Herbert Jacob Book Prize awarded by the Law & Society Association for the most outstanding new book. She is currently the Secretary to the Law and Society Association, a member of the Society of American Law Teachers, (SALT) and several Sections of the American Sociological Association. She was on the planning committee for the CRT 20 conference held at the University of Iowa in 2009.

Session 6: “Interest Convergence and the Right to Counsel” and “Immigrants and the Contemporary White Racial Frame: Evidence from Letters to the Editor of a Southern Daily Newspaper”

Interest Convergence and the Right to Counsel

Throughout the 20th century, the United States Supreme Court addressed questions concerning the Sixth Amendment right to counsel. Beginning in 1963 with the watershed decision in Gideon v. Wainwright , right to counsel jurisprudence has developed and evolved into an interestingly complicated body of law. Hailed as a victory for civil rights advocates, Gideon promised a hopeful change in the administration of criminal justice, particularly in the Southern states. While the value of Gideon cannot be overstated, a closer examination of the social and political context at the time shows the external pressures the Court was forced to confront. The Civil Rights Movement, the Cold War, and the development of the War on Poverty all worked to force White America and the Federal Government to address issues of racial justice. Many times, this task fell on the U.S. Supreme Court. Like its predecessor Brown v. Board of Education , Gideon’s impact had far reaching social implications and set new rules for the legal order specifically within the framework of criminal prosecutions. The wide-ranging social and legal impact on criminal justice was not by any stretch of the imagination completely positive. However, Gideon did affirmatively and officially pronounce an indigent defendant’s right to counsel. This article argues that this declaration was primarily motivated by “interest convergence.”

“Interest convergence,” a theoretical frame developed by the late Professor Derrick Bell, contends that the interests of minority groups are only recognized when they support the values and interests of the dominant social group. This paradigm serves as a vehicle to understand U.S. Supreme Court cases that produce a shift in the way we think about the procedural application and exercise of constitutionally guaranteed rights. In this essay I argue that interest convergence explains the result in Gideon and may also be used to understand the recent extension of the right to counsel in the context of plea bargaining negotiation in Padilla v. Kentucky , Missouri v. Frye and Lafler v. Cooper. This article will demonstrate the way in which external considerations first expanded the right to counsel in Gideon, subsequently restricted the right in Strickland v. Washington and Hill v. Lockhart and slightly expanded the right to counsel again in Padilla, Frye, and Lafler.

This article will begin with a discussion of Bell’s interest convergence theory. This section will not only explain the theoretical framework; it will also review the application of this theory by other scholars in a variety of contexts. Section II examines Gideon and its progeny focusing on Strickland and Hill. This part of the article will view these cases through the lens of interest convergence. This section will demonstrate that when the values and interests of Whites converge with those of minorities as occurred in Gideon, civil rights are theoretically extended. However, when White interests diverge from those of racial minorities civil rights are limited as is supported by the decisions in Strickland and Hill. Section III will examine the current state of affairs in the criminal justice system post-Gideon concentrating primarily on mass incarceration and plea bargaining. This section discusses the recent Supreme Court decisions in Padilla, Frye and Hill within the interest convergence paradigm noting that these three cases may be explained by understanding the value of these judgments cases to Whites. Section IV concludes with a brief summary of the argument.

Lahny R. Silva is an Associate Professor of Law and Dean's Fellow at the Indiana University Robert H. McKinney School of Law. She joined the faculty in the summer of 2011. She was the William H. Hastie Fellow at the University of Wisconsin Law School in Madison where she served as teaching assistant for Constitutional Law, Trial Advocacy and Civil Procedure. She also taught a Seminar on Post-Conviction Remedies while in Madison. In 2010 she was a legislative appointee for the State of Wisconsin Special Committee on Review of Records Access of Circuit Court Documents. Previously, she worked as an attorney for Greater Hartford Legal Aid and as a law clerk for the Office of the Corporation Counsel. While in law school, she worked as a legal intern in the Office of the Public Defender Serious Felony Unit. Professor Silva has received the Evidentiary Objections Award from the American Trial Lawyers College. She also received two CALI awards, one for Advanced Constitutional Law Freedom of Speech and one for Contemporary Issues in Criminal Law. She was named a Pudlin Scholar, recognizing distinction in the study and teaching of the First Amendment). The Women’s Law Student Association gave her their Award for Excellence in Community Service. She was also named a Bysiewicz Scholar at the University of Connecticut School of Law. She worked on Connecticut’s Statewide Legal Services Initiative, “Ban the Box,” and served as Chair of the Diversity Committee while at the University of Connecticut School of Law, where she was also involved in the Black Law Student Association (BLSA), the Public Interest Law Group, and Equal Justice Works.

Her areas of interest include criminal law, criminal procedure, constitutional law, and evidence.

Immigrants and the Contemporary White Racial Frame: Evidence from Letters to the Editor of a Southern Daily Newspaper

This paper first highlights a conceptual continuum running from explicit immigration policy formation, through expressed opinion and cognitive frames about immigration, to suggested foundations of cognition, briefly reviewing existing literature at each point along the way. At the foundational level, the paper juxtaposes Moral Foundations Theory (proposed by Haidt 2012) and Critical Race Theory (explained by, among others, Feagin, 2009) as differing but sometimes complimentary explanations for foundational cognitive framing and hypothesizes that evidence of both will be found in the attitudes about immigrants and immigration expressed in the public forum of letters to the editor of a southern daily newspaper. Elements of both theories are operationalized in order to perform a content analysis of the most recent 10 years of immigration-related letters and the results are reported and discussed.

The results provide anecdotal and preliminary quantitative evidence for the continued prevalence of what Feagin termed the white racial frame in public space dialog on immigration issues and show that some of the metaphors identified by previous researchers are used by writers, particularly the construction of “Us vs. Them” framings in relation to immigrants. Likewise, a high frequency of letters appear to couch arguments in line with the moral sensors articulated by Haidt and Moral Foundations Theory, especially those of Authority and Fairness. The discussion of the results makes preliminary arguments for what support this might indicate for both theories in suggesting how society frames the issue of immigration. The paper concludes with suggestions for continued research.

Grant Rissler is a second-year Ph.D. student in Public Policy and Administration at Virginia Commonwealth University and is an Associate at the Commonwealth Educational Policy Institute. He received an M.A. in International Relations from Johns Hopkins University’s School of Advanced International Studies, a graduate certificate in Conflict Transformation from Eastern Mennonite University and a Bachelors in History from Goshen (Ind.) College. Rissler currently serves as President of the Public Administration Students Association at VCU. In summer 2013 Rissler was privileged to attend and write a report on the “Healing History: Overcoming Racism, Seeking Equity, Building Community” conference organized by Initiatives of Change, USA (available at www.us.iofc.org).