Volume 34, Issue 2

As rapid urbanization intensifies around the world, so do contestations over how city space is utilized and for whose benefit urban revitalization is undertaken. The most prominent sites of this contestation are efforts by city residents to claim important urban goods—open squares, parks, abandoned or underutilized buildings, vacant lots, cultural institutions, streets and other urban infrastructure—as collective, or shared, resources of urban communities. The assertion of a common stake or interest in resources shared with others is a way of resisting the privatization and/or commodification of these resources. We situate these claims within an emerging “urban commons” framework embraced by progressive reformers and scholars across multiple disciplines. The urban commons framework has the potential to provide a discourse, and set of tools, for the development of revitalized and inclusive cities. Yet, scholars have failed to fully develop the concept of the “urban commons,” limiting its utility to policymakers.

Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent—a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.

It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution. This simple proposition is especially fitting in light of the broad First Amendment protection extended to the dollars spent in political campaigns to influence votes. But the current Supreme Court rarely scrutinizes voting regulations as it does other speech regulations. The Court treats spending to influence voters in elections—by candidates, political parties, individuals, corporations, labor unions, and others, including anonymous contributors who might well be international terrorists—as free speech entitled to robust First Amendment protection against state and federal limitation. Any limitations on such speech are subjected to strict scrutiny. Registering and voting, on the other hand, are given short shrift by the Court. Burdens on voter registration and voting are not analyzed under strict First Amendment standards, and therefore the Court has allowed states excessive latitude to restrict voters’ access to the ballot box.

Rather than admit defeat on disparate impact, as some scholars have suggested, I am reluctant to abandon the existing framework without first attempting to advance a proper understanding of the doctrine. Even if the practical efficacy of the doctrine remains dubious, “law’s symbolic or expressive functions are sometimes more important than its immediate practical consequences,” according to Professor Richard Primus, “and the story we tell about disparate impact doctrine still plays a significant role in shaping how we think about the nature and purposes of antidiscrimination law.” Indeed, disparate impact conveys a powerful social meaning: discrimination is less about subjective intentions and more about the objective status of historically disadvantaged populations. This “more robust” conception of disparate impact is precisely what needs to be sustained in the face of a less amenable antidiscrimination canon. Perhaps now more than ever, disparate impact’s contemplation of systemic effects is needed to ensure equality of opportunity in today’s society—a society that often overlooks enduring yet less perceptible discrimination in its desire to become post-racial.