Critical Race Theory
Mapping a Post-Shelby County Contingency Strategy
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 stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights.
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
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 state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.
The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks
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-building opportunity was not shared with African-Americans. This Note reveals a pervasive, previously ignored regulatory system at both the state and federal level that gave the section 203(b) program a monopoly in offering the kinds of loans that first-time homebuyers needed. These statutes meant that even nongovernmental entities could not offer most African-Americans the opportunity to become homeowners.
Affirmative Action's Affirmative Actions: A Reply to Sander
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 at hand and his openness to progress on these issues. Fortunately, progress is possible, because, as I show here, the impressive-sounding points in Sander's Response violate basic methodological principles and are incorrect. Sander points to certain descriptive facts that my Comment does not dispute. Black students appear to fail the bar at higher rates than white students. It also appears that "blacks and whites with similar law school grades (when controlling for school and entering credentials) have virtually identical graduation and bar outcomes." However, these descriptive observations are irrelevant to the causal question of whether going to a higher-tier law school causes black students to fail the bar. As my Comment and this Reply demonstrate, black law students who are similarly qualified when applying to law school perform equally well on the bar irrespective of what tier school they attend. There is no evidence that affirmative action reduces the bar performance of the students it is designed to help. The descriptive facts Sander presents may account for some of the reasons for affirmative action, but they do not address the consequences of affirmative action. Here, I respond to each of Sander's points in turn. DATA SET (Other)
Mismeasuring the Mismatch: A Response to Ho
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 analytical framework of my article, is vague in his claims of bias, and offers an alternative approach that violates the very methodological precepts he lays out.
Why Affirmative Action Does Not Cause Black Students To Fail the Bar
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 misapplies basic principles of causal inference, which enjoy virtually universal acceptance in the scientific community. As a result, the study draws internally inconsistent and empirically invalid conclusions about the effects of affirmative action. Correcting the assumptions and testing the hypothesis directly shows that for similarly qualified black students, attending a higher-tier law school has no detectable effect on bar passage rates. Part I clarifies the assumptions implicit in Sander's study and explains the inconsistent and indefensible premises on which it rests. Part II presents results from a reanalysis of the data, using alternative methods that correct and reduce the role of these unjustifiable assumptions. The reanalysis suggests that Sander's conclusions are untenable on their own terms. Part III concludes.
To Insure Prejudice: Racial Disparities in Taxicab Tipping
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 host of other variables, they find two potential racial disparities in tipping: (1) African-American cab drivers were tipped approximately one-third less than white cab drivers, and (2) drivers who are "rational" statistical discriminators would expect African Americans to tip 56.5% less than white passengers (African-American passengers are also 3.7 times more likely than white passengers to leave no tip). Both black and white passengers participated in the discrimination against black drivers. These findings suggest that government-mandated tipping (via a "Tip Included" decal) might reduce two different types of disparate treatment. First, mandated tipping would directly reduce the passenger discrimination against black drivers documented in this Essay. Second, mandated tipping might indirectly reduce the widely documented tendency of drivers to refuse to pick up black passengers.
Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)
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 education policy debates. Instead, our conversations frame the causes of and remedies for educational inequality in terms of racially neutral private choices. Describing this phenomenon as the "privatization of concern" for our children, this article critiques a narrow view of parental responsibility and care that justifies segregation by invoking the liberty of familial privacy. Employing narratives from his experience as a D.C. school board member and parent, Charles Lawrence calls for an expanded understanding of John Hart Ely's process-defect theory that recognizes the continuing influence of racism on school choice. He argues that our silence on the subject of race undermines the democratic process, and he suggests that breaking the taboo against candid conversation about race and racism is a prerequisite to the creation of the community of care envisioned by Brown v. Board of Education.
Gideon in White/Gideon in Black: Race and Identity in Lawyering
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 judicial review, reflected in his early contribution to Gideon v. Wainwright and his service as a public defender, resonate deeply with the practice of lawyering for the poor and the disenfranchised. Indeed, Ely saw the good lawyer as mindful of racially motivated inequality and unequal access in both law and politics. Nonetheless, situated within the advocacy traditions of liberal legalism, his vision of lawyering defined race consciousness and racial equality narrowly, eschewing the notion of race-contingent identity and community as dignity-based process values linked to cultural, social, and political standing. Although constrained by legal process considerations of lawyer role, institutional function, and political legitimacy, Ely's defense of minority equality rights and political access norms can be read to extend the reach of liberal lawyering by supporting antisubordination axioms of democratic empowerment and minority collaboration. Ely's fusion of democracy and equality in legal process bridges constitutional theory and clinical practice to offer an enriching vision of progressive lawyering in impoverished, crime-ridden communities.
John Hart Ely and the Problem of Gerrymandering: The Lion in Winter
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 of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's "Reapportionment Revolution" as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work--a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly--reveals an implicit tension within his approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as objects of judicial solicitude, rather than as efficacious political actors in their own right.
The Law and Economics of Critical Race Theory
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 equilibrium of familiarity and sameness." This Review began by suggesting that part of the reason this dynamic is obscured in CRT is because CRT has not paid attention to the interpersonal contexts--the micromarkets (e.g., employer/employee identity transactions)--in which race is produced. This Conclusion returns to the macro to make two points. The first links the micro discussion of prototype production in the workplace to the broader societal context; the second suggests some other areas of interest where the CRT/L&E approach might shed new light. First, the problem we have described is part of a larger problem that Philomena Essed and David Goldberg refer to as "cloning cultures," which they define as the "broad social(ly manifest) dispositions to reproduce sameness." They argue that "a critical account of systems of preference for sameness--from kinship to nation, from aesthetics to production and consuming--can be revealed as contributing to the reproduction of systems of social distinction and privilege." Our aim has been to provide a concrete indication of how such a system manifests itself in the context of the workplace. But Essed and Golberg's paper suggests that there is a more problematic implication of our project: the social manufacturing of racial palatability--one body at time. Put differently, our argument suggests that racial difference is being commodified and cloned in the workplace. Articulated thus, the homogeneity incentive operates as the driving force for a kind of cloning. Outsider performances of racial palatability are the raw materials from which homogenized outsider identities are manufactured. Yet there is an important difference between the cloning problem we identify and that upon which Essed and Goldberg focus. For the most part, Essed and Goldberg are concerned with "problematiz[ing] the systemic reproduction of white, masculine homogeneity in high status positions," a reproduction that causes "exclusion along racial, ethnic, gender, sexual, class and other structural demarcations." Their analysis does not account for the "diversity constraint"--that is, the need for institutions (and, presumably, the nation) to maintain some degree of difference. With the diversity constraint in mind, the cloning issue is no longer just about reproducing insiders. One has to think about the production and cloning of outsiders as well. Our Review focuses on the incentive for employers to create a market for, and to facilitate the cloning of, racially palatable outsiders. For institutional legitimacy and antidiscrimination reasons, the cloning market cannot produce, or transact in, only white clones. Nor would employers want to do so. One reason why racial palatability is valued is that the racial bodies that produce it remain intelligible as nonwhite. To the extent that racial palatability takes the form of passing, it engenders white racial anxieties. To be valuable, the outsider prototype must be recognizable as a "copy." It must not pass for, but only approximate, the "real." The second macro implication of our thesis relates to the general critique of prototypes. Here, we suggest that analysis of the microdynamics of workplace racial discrimination might be extended to analyze other problems. In this context, one can think of a prototype as a mental shortcut to categorize unfamiliar situations. We all have images in our minds as to prototypical rape victims, sexual harassers, welfare recipients, and so on. To the extent that actors in the legal system use these prototypes to decide cases--for example, prosecutors or juries deciding whether a rape occurred by looking to see whether the victim fit the prototypical image of a rape victim, as opposed to asking whether the facts satisfied the elements of the crime--this can cause systemic errors. Consider, for example, Martha Chamallas's critique of the rape prototype. Chamallas explains that, with rape, the prototype is stranger rape, where the perpetrator is often a black male and the victim a white woman. Most rapes, however, occur between acquaintances, between people of the same race and class, and on dates. Reasoning from prototypes, therefore, presents the danger that most rapes will go unpunished because they do not fit the prototype. Further, rapes by black men of white women will be disproportionately punished, whereas rapes by black men and white men of black women will receive less punishment. Leti Volpp makes a similar point about domestic abuse--more particularly, battered woman syndrome. She argues that this syndrome is based on a "'model' battered woman," in other words, a prototype: a woman who is "passive and helpless." Volpp demonstrates the extent to which judges refuse to give a battered women's instruction in cases in which they perceive that the domestic abuse victim is not a model battered woman. She concludes that because "battered women's syndrome exemplifies a stereotype of passive married middle-class white women, it may be especially difficult for battered women of color and gay men and lesbians to fit the model." An L&E-oriented approach to prototypes could elaborate upon Chamallas's and Volpp's critique by asking two questions. (1) How do prototypes incentivize behavior? And (2) what are the costs of responding to the incentives that prototypes create? If the protection of rape laws accrues only when women behave in a particular manner (let us say, "modestly"), that means that women who want the protection of the rape laws have an incentive to present themselves in ways that fit the protected prototype. In this sense, the price of receiving legal protection is the cost of acting in a manner that fits the prototype. These costs may be higher for some than others. For example, if modesty is defined in terms of white upper-class behavior, it may be costly and difficult (even if not wholly impossible) for minority women to perform their identity in a manner that fits that prototype. Further, quite apart from shaping how women perform their identities in the real world of social interactions, the existence of prototypes shapes how women present themselves at trials. To access battered woman's syndrome, for example, there is an incentive for women to highlight their passivity and lack of agency. On the other side, from the usually ignored perpetrator's perspective, there is an incentive to attack women who do not fit the prototype. This is part of what explains black women's historical vulnerability to rape. Chamallas's and Volpp's papers are part of a larger critical literature that demonstrates the problems of prototypes. What remains to be considered is the regulatory and productive effects these legal prototypes have on the identities in question. For whether the prototype in question implicates sexual harassment, hate speech, rape, or welfare law, identity is being cloned. Heretofore, critical race theorists have not seriously engaged this productive capacity of law.
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)