The Yale Law Journal

Critical Race Theory


“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation

M. Broderick Johnson


The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest conve…


The Critical Racialization of Parents’ Rights

LaToya Baldwin Clark

The anti-CRT movement is intertwined with the trend toward parents’ rights, which complains that official educational policies usurp fundamental parental rights. This Feature shows how these “twin” movements against CRT and for parents’ rights center White parents’ rights and the protection of White…


Dismantling the Master’s House: Reparations on the American Plantation

Jordan Brewington

In southeastern Louisiana, plantations still line the Mississippi River, surrounded by Black communities who experience these estates as sites of racialized harm. This Note explores the use of eminent domain to achieve land-based reparations for these descendants and draws lessons for reparations at…


Reckoning with Race and Disability

Jasmine E. Harris

Intersectionality surfaces the experiences of disabled people of color, but it tells us less about the malleability of this type of discrimination. This Essay contends that aesthetic theories of structural subordination can supplement emerging discussions on intersectionality by underscoring the vis…


Black Progressivism and the Progressive Court

James W. Fox Jr.

This essay discusses Black progressive texts – Thomas Fortune’s Black and White, Ida Wells’s The Reason Why, and two statements of the Niagara Movement – and explores how the themes they developed contain a critique of the underlying rationales of the Supreme Court’s jurisprudence of the same period…


Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination

Lisset M. Pino

This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community…


An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

Devon W. Carbado & Kimberlé W. Crenshaw

Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection …


Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience

James Davis III

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity desp…


Ending the Incarceration of Women and Girls

Andrea James

Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.


Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony

Valeria M. Pelet del Toro

In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of ri…


Who Locked Us Up? Examining the Social Meaning of Black Punitiveness

Darren Lenard Hutchinson

In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America, Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritaria…


What About #UsToo?: The Invisibility of Race in the #MeToo Movement

Angela Onwuachi-Willig

The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.


Pregnancy, Poverty, and the State

Michele Goodwin & Erwin Chemerinsky

In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend …


Police Reform and the Dismantling of Legal Estrangement

Monica C. Bell

In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with t…


Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

L. Song Richardson

Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…


Reading Michigan v. Bryant, “Reading” Justice Sotomayor

I. Bennett Capers

What are we to make of Justice Sotomayor’s criminal procedure jurisprudence? In this Essay, Professor I. Bennett Capers attempts to answer that question by offering three readings of her Confrontation Clause decision in Michigan v. Bryant. All three close readings, coupled with details from her memo…


Race and the Disappointing Right to Counsel

Gabriel J. Chin

122 Yale L.J. 2236 (2013).

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 hop…


Mapping a Post-Shelby County Contingency Strategy

Guy-Uriel E. Charles & Luis Fuentes-Rohwer


Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various str…


Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument

Lawrence G. Sager

My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of …


Oops! Racism as Mistake: Lessons from Corporate Law

Richard Delgado

In Minorities, Shareholder and Otherwise, Anupam Chander points out that the law treats discrimination by corporate insiders against minority shareholders with suspicion. Yet discrimination against ordinary minorities, in buying or selling a house or applying for a job, for example, receives increas…


The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks

Adam Gordon

115 Yale L.J. 186 (2005)

The Federal Government, in creating the section 203(b) mortgage insurance program during the New Deal, transformed homeownership in America into the main way that middle-class households build wealth. In the first three decades of the program's existence, however, this wealth…


Affirmative Action's Affirmative Actions: A Reply to Sander

Daniel E. Ho

114 Yale L.J. 2011 (2005)

I am grateful to Professor Sander for his interest in my work and his willingness to pursue a valid answer to the critical question of the effects of law school tier on bar performance. Sander's readiness to respond to my Comment demonstrates the importance of the questions…


Why Affirmative Action Does Not Cause Black Students To Fail the Bar

Daniel E. Ho

114 Yale L.J. 1997 (2005)

In a widely discussed empirical study, Richard Sander concludes that affirmative action at U.S. law schools causes blacks to fail the bar. If correct, this conclusion would turn the jurisprudence, policy, and law of affirmative action on its head. But the article misapplie…


Mismeasuring the Mismatch: A Response to Ho

Richard H. Sander

114 Yale L.J. 2005 (2005)

Daniel Ho claims that if one tugs at a single strand of my analysis of affirmative action, A Systemic Analysis of Affirmative Action in American Law Schools, the entire structure collapses. As I explain briefly in this Response, Ho is wrong. Ho seems to miss the central an…


To Insure Prejudice: Racial Disparities in Taxicab Tipping

Ian Ayres, Fredrick E. Vars, & Nasser Zakariya

114 Yale L.J. 1613 (2005)

Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race.

The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …


Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)

Charles R. Lawrence III

114 Yale L.J. 1353 (2005)

More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary edu…


John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Pamela S. Karlan

114 Yale L.J. 1329 (2005)

In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications…


Gideon in White/Gideon in Black: Race and Identity in Lawyering

Anthony V. Alfieri

114 Yale L.J. 1459 (2005)

Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on j…


The Law and Economics of Critical Race Theory

Devon W. Carbado & Mitu Gulati

112 Yale L.J. 1757 (2003)

Our story is about the production and consumption of racial prototypes. The regulatory thrust of homogeneity creates both a demand for, and a supply of, specific racial prototypes--outsiders who can fit within predominantly white workplace cultures without "disturb[ing] the …