Determining the (In)Determinable: Race in Brazil and the United States
D. Wendy Greene
In recent years, the Brazilian states of Rio de Janeiro, São Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is “Black” has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one’s physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent—the presence of one African ancestor defines an individual as Black—determines an individual’s “Blackness” in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one’s physical appearance is determinative.
Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one’s physical appearance is the primary determinant of Blackness in both American nations. Indeed, one’s ancestry is necessarily implicated in determining race based on “physical appearance,” as this method of classifying race is grounded in socially mediated presumptions concerning how an individual’s physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.
In doing so, Professor Greene first examines African slavery in Brazil and the United States, which is crucial to the understanding of race, racial ideology, and racial hierarchy in the two nations. Part I explores the differences and similarities between the conception of race, specifically focusing on the construction of Black, white, and multi-racial classifications. Part II also discusses the influence of slavery and settlement patterns on the contrasting racial ideologies in both American nations—“racial democracy” in Brazil and “racial purity” in the United States. Additionally, in this section Professor Greene argues that a mutual racial hierarchy and attendant racial physiognomy developed and endure despite the divergent racial ideologies, settlement patterns and slavery law in Brazil and the United States.
In Part II Professor Greene provides a comprehensive analysis of historical and contemporary racial determination cases decided by American courts and the various methods these courts appropriated to determine an individual’s race. Significantly, Professor Greene’s examination of racial determination cases debunks the widely propagated notion that the rule of hypodescent is actually applied when determining an individual’s “Blackness”. These racial determination cases also illuminate the salience of physical appearance in determining race as well as the paradoxical nature of race—specifically Blackness and whiteness—in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography.
Eatin’ Good? Not in This Neighborhood
A Legal Analysis of Disparities in Food Availability at Chain Supermarkets in Poverty-Stricken Areas
Nareissa Smith
Many Americans—especially the poor—face severe hurdles in their attempts to secure the most basic of human needs—food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain—but located in a wealthier neighborhood—she would find a wide selection of healthy foods and fresh produce. What are the poor people who live in the inner cities—who are disproportionately African American and Latino—to do? How can they obtain healthy food against these odds?
This Article argues that the actions of the supermarkets are unconscionable, and therefore proposes a federal law that will prevent chain grocery stores from engaging in such practices. The Article first examines the scope of the problem created by these supermarket practices. The Article then explains why current laws are inadequate to address this issue. Finally, the Article proposes that Congress use its authority under the Commerce Clause to enact legislation that would require supermarket chains to carry the same selection and quality of goods at all stores in the same chain.
Permitting Under the Clean Air Act:
How Current Standards Impose Obstacles to Achieving Environmental Justice
Annise Katherine Maguire
Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems—the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals.
The Unconstitutionality, Ineffectiveness,
and Alternatives of Gang Injunctions
Thomas A. Myers
Gang violence across America puts in jeopardy the peace and tranquility of neighborhoods. Cities are challenged to keep their communities safe from gang violence. One common way in which cities attempt to combat violent gang activity is by using gang injunctions. Gang injunctions are court orders that prohibit gang members from conducting already-illegal activities such as vandalism, loitering, and use or possession of illegal drugs or weapons within a defined area. These injunctions, however, also prohibit otherwise legal activity such as associating with others within the restricted area of the injunction, using words or hand gestures, and wearing certain clothing.
The increased use of gang injunctions to combat violent gang activity is a controversial tactic. The use of gang injunctions raises many constitutional concerns, including violations of the 1st, 4th, 5th, 9th, and 14th amendments. Even if interpreted as constitutional, gang injunctions have been proven ineffective in preventing and deterring gang members from engaging in violent gang activity. Critics believe that gang injunctions create gang cohesiveness, animosity towards the police, and relocate the violent crime created by gang members by pushing gang members into adjacent neighborhoods just outside the injunction’s target area. Finally, there are several proven-effective alternatives to gang injunctions.
This Note explores the unconstitutionality of gang injunctions, reveals the ineffectiveness of gang injunctions, and investigates more effective and efficient alternatives.
