Bad Characters and Desperados: Latinxs and Causal Explanations for Legal System Bias


Although there is a long history of prejudice and discrimination against Latinxs within
the U.S. legal system, there is a dearth of research seeking to understand the causal underpinnings of the biased decisionmaking that works against them. While this Article discusses the experience of those who identify as Latinx broadly, in several areas it pays special attention to the experience of Mexican Americans. First, this Article reviews the history of prejudice against Latinxs, the nature of that prejudice, and the importance of studying such prejudice within a legal context. Next, the Article reports on a series of studies conducted by the author over two decades that were designed to identify a theoretical model that might account for biased decisionmaking against Mexican Americans in legal decisions.

The Supremacy Clause is the U.S. Constitution’s primary mechanism for resolving inevitable
conflicts of law between two sovereigns operating in the same territory; it was not designed for the triangulated clashes between states and private actors performing federal work by contract. Current doctrine, however, flattens the structural difference. In scattered and undertheorized precedents, the U.S. Supreme Court has held that federal contracts can displace state law, and that the federal government’s constitutional immunity from state law extends to contactors. This Article shines critical light on these Supremacy Clause spinoffs and argues to overrule them on constitutional and normative grounds. Across the regulatory spectrum, contractors routinely stand in for federal actors. But their contracts need not, and should not, stand in for federal law.

About the Author

Cynthia Willis-Esqueda, Ph.D., is a faculty member in the Department of Psychology and the Institute of Ethnic Studies at University of Nebraska–Lincoln. She is in the Psychology and Law and the Social–Cognitive Psychology Programs, as well as Latino Studies and Native American Studies. She is also chair of the Minority Affairs Committee for the American Psychology-Law Society.