Issues

On Friday, April 14, 2023, the Northwestern Pritzker School of Law community, family, close friends, and colleagues gathered in the Thorne auditorium to celebrate the legacy of Joyce A. Hughes, trailblazer and longtime professor of law. Professor Hughes retired at the end of the 2021–2022 academic year.

As part of this celebration, the Northwestern University Law Review presents this special Issue in honor of Professor Hughes and her contributions to legal scholarship and the legal profession.

More information about Professor Hughes’s legacy can be found here and here.

Northwestern Law Professor and Seigle Immigration Clinic for Immigrant Youth and Families Director Uzoamaka Emeka Nzelibe presents the trailblazing history and legacy of Professor Joyce A. Hughes. Born in the segregated South, Professor Hughes overcame numerous barriers on her way to accomplishing many historic firsts. Among these firsts, Professor Hughes was the first Black woman to receive tenure in any department in the history of Northwestern University.

In her tribute, Professor Nzelibe recounts the ways in which Professor Hughes paved the way for Black women in law and legal academia—including Professor Nzelibe herself, who took over Professor Hughes’s seminar on refugee and asylum law.

Professor Joyce A. Hughes was honored in August, 2021, with the ABA’s Margaret Brent Women Lawyers of Achievement Award. This award recognizes outstanding women lawyers who have paved the way to success for other women in the legal profession.

As part of receiving this award, Professor Hughes wrote the following essay. The Northwestern University Law Review is honored to reprint this essay here. For more information about Professor Hughes, click here. For more about Professor Hughes receiving the Margaret Brent award, please click here.

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women and people of color, ineffective enforcement by administrative agencies disproportionately harms these groups.

Retaliatory conduct by employers is an impediment to the enforcement of workplace laws that administrative agencies are charged with enforcing. Antiretaliation provisions in workplace statutes are crucial enforcement tools for these agencies, but—where these laws were once broadly construed— their construction is narrowing. Restrictive interpretations of workplace laws can make obtaining redress more difficult for victims of retaliation and can deter other employees from reporting employer misconduct. Moreover, Black workers and female workers experience retaliation in the workplace at a much higher rate than other workers. Consequently, retaliatory conduct by employers is not only an impediment to effective enforcement of workplace laws, but the conduct itself can implicate racial discrimination, exploitation, and subordination.

These agencies find themselves facing a dilemma with respect to the other branches of government. The judiciary is issuing restrictive interpretations of antiretaliation laws and affording no deference to agency interpretation. Congress is slow in legislatively correcting the courts’ limiting interpretations. Because retaliation protections are so vital to the regulatory scheme Congress developed, narrow interpretation by the courts causes underenforcement and stifles the ability of administrative agencies charged with enforcing workplace laws to fulfill their missions.

This Article examines the challenges administrative agencies face in providing robust protections against retaliation, given the current postures of the legislative and judicial branches of government. The Article proposes a shift in administrative agencies’ predominant enforcement model—from an individual-complaint-based model to a compliance-audit-based model—and data collection that will incentivize employers to comply with nonretaliation mandates, leading to stronger antiretaliation safeguards.

As a community, Black people consistently face barriers to full participation in traditional financial markets. The decentralized nature of the cryptocurrency market is attractive to a community that has been historically and systematically excluded from the traditional financial markets by both private and public actors. As new entrants to any type of financial market, Black people have increasingly embraced blockchain technology and cryptocurrency as a path towards the wealth-building opportunities and financial freedom they have been denied in traditional markets. This Article analyzes whether the technology’s decentralized system will lead to financial inclusion or increased financial exclusion. Without reconciling the racially discriminatory history or effects of the current central financial system, the innovative decentralized appeal to Black people will do little to overcome economic inequity. It may be possible that some cryptocurrencies can be tools for financial inclusion by improving economic outcomes and building wealth outside of traditional financial institutions, but without an intervention, a decentralized system will not necessarily lead to decentralized wealth.

The rise of cryptocurrency presents an opportunity to think about how to create a fairer, more inclusive financial system. Taken together with the financial exclusions of the past, cryptocurrency can be a vehicle through which we think about true financial inclusion. However, asking traditionally marginalized groups to participate in an extremely risky cryptocurrency market in pursuit of racial equity is an unrealistic solution given the legacy and reality of financial exclusion. A decentralized system cannot fix the systemic racial inequality that has been embedded in our financial systems. This Article proposes using an Afrofuturist framework in the shaping of policy toward cryptocurrency. An Afrofuturist paradigm pushes for systemic problems to be solved through wholesale systems change rather than tinkering at the margins. Moving forward using an Afrofuturist lens would facilitate a rethinking of our financial systems and the role of cryptocurrency as a portal for racial equity.

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns—criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted in a public health exception to this general rule. Over the past twenty years, scholars have asserted that deference in this context, including denying due process and suspending judicial review, can lead courts to sustain gross violations of civil rights in emergencies. These scholars’ arguments gained traction amongst libertarians and the courts during the COVID-19 pandemic. But scholars and courts alike have failed to sufficiently center race as they update the law of quarantine, despite a four-hundred-year history of racialized quarantines.

This Article seeks to render race visible in our understanding of the nature and scope of quarantines during public health emergencies. The Article makes the claim that COVID-19 pandemic orders and their enforcement schemes are genealogically related to a larger American project of racializing neighborhood borders and constricting Black movement. And it proposes the abolition of carceral responses to public health crises in Black communities, including quarantines, and the reconstruction of liberty to bring Black communities within the sphere of the state’s protection in future emergencies.

This Article draws from several theoretical frameworks such as critical race theory, law and economics, and rule of law conceptions to argue that the Financial Stability Oversight Council (FSOC) should formally recognize racism as a threat to financial stability due to its interconnectedness with recent and projected systemic disruptions. This Article begins by first introducing a novel model created by the author through which to dissect this claim. This “Systemic Disruption Model” provides a theoretical depiction of how racism drives every phase along the life-cycle continuum of a systemic disruption.

First, with respect to the Model’s “Introduction” phase, this Article contends that racist practices and policies incentivize systemic disruptions. These practices and policies transform Black communities (and other vulnerable areas) into ideal dumping grounds for negative externalities produced by the private sector. For example, redlining and restrictive racial covenants made Black communities ideal targets for subprime mortgages during the initial stages of the financial crisis of 2007–2009. Racism then leads to “blind spots” where market participants magnify the economic benefits flowing from such negative externalities while underestimating its resulting costs.

Second, during its “Growth” phase, these blind spots cause the systemic disruption to expand exponentially since market participants create additional avenues for exclusive commodification. During the financial crisis of 2007–2009, for instance, subprime mortgages were repackaged into financial instruments and sold to elite counterparties across the globe. Relying on the quintessential free market to resolve these harms has therefore proven inadequate.

Third, when the systemic disruption reaches its “Maturity” phase, the disparate harms experienced by Black people and other vulnerable communities spill over into the masses. The excessive leverage pumped into the market during the financial crisis led to the cascading failures and losses that spread to every corner of the market.

Based on this novel Systemic Disruption Model, this Article therefore argues that Professor Derrick Bell’s interest-convergence theory firmly takes root within this Maturity phase since this spillover effect is a necessary condition for meaningful regulatory intervention. Racism, however, can extend the depth and duration of this Maturity phase given the tendency of lawmakers to grant selective relief for elite classes. As the systemic disruption goes into its fourth and last phase of “Decline,” racism causes lawmakers to underestimate the long-term costs accruing to vulnerable communities, which creates a fertile breeding ground for future systemic disruptions. This Article applies this same analytical framework in assessing how the systemic disruption generated by climate change is similarly connected to racism.

A formal recognition by FSOC that recognizes racism as a threat to financial stability could significantly disrupt this deeply troubling cycle. Such a designation would first concede the limitations of preexisting protections that arise under federal and state law, as well as privately ordered responses, which could increase the likelihood for more inclusive rulemaking going forward. It could further serve as a framework for formalizing data collection mechanisms, coordination across regulatory agencies, and expertise building within every corner of the financial markets. Finally, an FSOC designation could spur investors, asset managers, stakeholders, and nongovernmental organizations to advocate for meaningful reform, while stimulating integral rulemaking from applicable regulatory agencies. For example, this could be a vital step in prompting the U.S. Securities and Exchange Commission (SEC) to promulgate rules within the context of its ongoing commitment to streamline the environmental, social, and governance (ESG) metrics utilized by its registrants. Mandatory racial-equity disclosures implemented by the SEC could assist in weeding out systemically racist practices that compromise investor protection, while increasing competition and accountability.