abstract. This Review examines the significance of Henry Louis Gates, Jr.’s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation’s legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Road—the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy—to the practice of law inside civil-rights and criminal-justice systems and, more generally, to critical theories of race, the persistence of racism, and race-conscious legal representation. To that end, this Review interrogates and reimagines how race should be situated in the legal representation of clients of color. Building upon Gates’s discussion of the images and counternarratives created by Blacks as forms of resistance, it examines how those tools can be a means for galvanizing struggles against antiblack racism in the United States in the past and today.

Read from the intersection of theory and practice, Gates’s Stony the Road offers several instructive lessons on race and legal representation germane to lawyers, judges, and academics. The first lesson is that the white-supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race, effectively shaping the roles, mediating the relationships, and organizing the methods of the lawyering process in civil-rights, poverty-law, and criminal cases. The second lesson is that the trials of these cases provide a forum for lawyers, judges, jurors, and even witnesses to race-code the identity of accused and convicted offenders, impoverished clients, and victims of discrimination in ways that reify those tropes and diminish the agency of individuals, groups, and communities of color. The third lesson is that the trial of such cases also affords lawyers and clients meaningful, collaborative opportunities to reframe race-coded identity and provide new visions of self, namings, and identities. Such reframing can recover the presence of black agency, enhance the exercise of black power, and contextualize the impact of systemic racism on individuals, groups, and communities as a whole.

author. Angela Onwuachi-Willig is Dean and Ryan Roth Gallo and Ernest J. Gallo Professor of Law, Boston University School of Law. Thanks very much to Provost Jean Morrison for her research support. I give special thanks to my husband, Jacob Willig-Onwuachi, and our children, Elijah, Bethany, and Solomon for their constant love and support. Anthony V. Alfieri is Dean’s Distinguished Scholar, Professor of Law, and Director, Center for Ethics and Public Service, University of Miami School of Law. Many thanks to Ellen Grant, Amelia and Adrian Grant-Alfieri, Eric Prileson, and the University of Miami School of Law librarians for their everlasting support. We thank David Abraham, Scott Cummings, Andrew Elmore, Walter Goncalves, Pat Gudridge, Alexis Hoag, Peter Margulies, Talia Peleg, Jenny Roberts, and Jeffrey Selbin for their helpful comments, and we are grateful to Kshithij Shrinath and the Yale Law Journal team for superb editing and amazing patience.

Introduction

The community at St. Paul’s J.J. Hill Montessori School in St. Paul, Minnesota—students, parents, and employees alike—loved Philando Castile, a black cafeteria supervisor who made their days brighter with his warm and welcoming smile, who consistently encouraged the students he nourished every day with lunch to eat their “veggies,” and who affectionately became known to all as “Mr. Phil.”1 Following Castile’s premature and tragic death at the hands of Officer Jeronimo Yanez, J.J. Hill community members remembered the thirty-two-year-old son of Valerie Castile, boyfriend of Diamond Reynolds, and father figure to Dae’Anna, Reynolds’s then-four-year-old daughter, with an abundance of memories and praises. They described Castile as nice, caring, smart, patient, quiet, generous, gentle, funny, soft-spoken, kind, respectful, cheerful, and even overqualified for his position as a cafeteria supervisor.2 Indeed, a headline from Time magazine communicated that Castile “was a role model to hundreds of kids.”3Castile’s former colleague at J.J. Hill, Joan Edman, a then-sixty-two-year-old retired paraprofessional, told a Time reporter that Castile was a hard worker who closely followed the rules. Edman explained that she had “never seen anybody take that kind of role so seriously. . . . He followed directions carefully.”4 From all accounts, everyone who had the great fortune of knowing Castile regarded him as an “exceedingly gentle and unfailingly kind man who did everything right.”5

Despite the realities of who Castile was as a person, on July 6, 2016, when Officer Jeronimo Yanez pulled Castile over in a traffic stop (for what would be around Castile’s fiftieth police stop in a little over a decade),6 Yanez simply could not see Castile as anything more than a racial stereotype. For Yanez, Castile was, as Henry Louis Gates, Jr. would say, “an already read text.”7 Although the officer had purportedly stopped Castile only because of a broken tail light,8 which by itself should not make any driver suspicious, the officer began his interactions with Castile with deep suspicion of the black man he saw before him. Whether Yanez’s racial biases were conscious or nonconscious, he began to feel apprehensive of Castile and read him as dangerous almost from the beginning. When Yanez first described his initial encounter with Castile, Castile’s girlfriend Reynolds, and her daughter in the backseat, he explained:

I told them the reason for the traffic stop and then I wasn’t going to say anything about the marijuana yet because I didn’t want to scare him or have him react in a defensive manner. Um, he didn’t make direct eye contact with me and it was very hard to hear him, Uh he was almost mumbling when he was talking to me. And he was directing his voice away from me as he was speaking and as I was asking questions. Uh he kept his, hands in view and then I uh I believe I asked for, his license and insurance. And then I believe they told me, they asked for the reason for my traffic stop. And I told ‘em the reason was the only, I think I told ‘em the only rea, the reason I pulled you over is because the only active brake light working was the rear passenger side brake light.9

A close reading of Yanez’s words illustrates how racial stereotyping must have shaped his perceptions of Castile, making him unable to see Castile—a dark-skinned black man with locs10 and, as Yanez would later describe, “a wide-set nose”11—as anything other than dangerous and criminal.12 For instance, the quiet and soft-spoken voice that J.J. Hill community members found to be one of Castile’s endearing qualities was heard by Yanez as the incoherent mumblings of a man with something to hide. Additionally, rather than viewing the actions that Castile—a black man who had been subject to police traffic stops on around fifty different occasions—was clearly engaging in to appear nonthreatening and thus be safe from any police violence as innocuous, Yanez viewed Castile’s conduct with grave distrust and fear. It did not matter that Castile’s actions read like a veritable script of “The Talk,” an intergenerational script of advice and warnings by black parents and nonblack parents of black children that is designed to prepare black kids for surviving the police stops they will encounter in our racist society.13 As Yanez explained in the quote above, Castile kept his “hands in view,”14 and Castile did not stare at him or make “direct eye contact” with him.15 Castile even politely warned the officer about the legally registered gun that he had in his possession,16 not as a means of alarming the officer (which it did), but instead as a means of relieving Yanez and assuring him that he was not in danger. After all, what person intending to do harm to an officer by shooting him actually warns the officer, who is armed himself, that he has a gun on him, thereby eliminating the element of surprise and any advantage he could have had in a shootout with the officer?

Still, racism and bias won out over common sense and logic during the approximately fiftieth stop for Castile, pushing Yanez to shoot Castile as Castile sought to comply with Yanez’s instruction to provide him with his license and registration. Yanez, however, did not see an effort to comply. Instead, he saw in Castile an image he had deeply internalized of the dangerous, criminal, out-of-control, rule-defying-and-breaking black man.17 Like so many implicit bias studies have shown, Yanez imagined a gun in the hands of a black man in circumstances where he would not have imagined one in the hands of a white man.18 As Yanez asserted about Castile,

I, believe I continued to tell him don’t do it or don’t reach for it and he still continued to move. And, it appeared to me that [h]e had no regard to what I was saying. He didn’t care what I was saying. He still reached down. . . . And, at that point I, was scared and I was, in fear for my life and my partner’s life. . . . I was telling something as his hand went down I think. And, he put his hand around something. And his hand made like a C shape type um type shape and it appeared to me that he was wrapping something around his fingers and almost like if I were to put my uh hand around my gun like putting my hand up to the butt of the gun.

. . . .

. . . [He] appeared defensive to me . . . . 

As I was giving him direction about what to give me . . . I felt that he had no regard to what I was saying. He didn’t care what I was saying. He didn’t want to follow what I was saying so he just wanted to do what he wanted to do.19

In the end, Yanez saw what society had taught him to see in black people and, in this instance, black men: danger. Yanez saw defiance and a disregard for the rules from a man known for his careful attention to instruction and directions. And, in turn, Yanez felt what society had shown him to feel in response: trepidation and fear. At no time during the encounter did Yanez come to see the real Castile, nor did he try to do so. Had Yanez seen Castile as he truly was and as so many around him knew him to be, Yanez might have noticed what Castile’s girlfriend Reynolds proclaimed to be true on that fated day of July 6, 2016, that “[n]othing within [Castile’s] body language said shoot me.”20

Confused by the unnecessary killing of their beloved Mr. Phil, the two children of Kirkja Janson, a white mother who made a point of openly speaking with her white children about the racial stereotypes that she believes motivated Yanez’s decision to shoot Castile, posed an important question to their mom. They innocently asked, “How could anyone think Mr. Phil was dangerous?”21

In his important new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, Henry Louis Gates, Jr.22 answers this innocent question by presenting the images, stereotypes, and narratives that White23 constructed of Blacks to deepen and ensure the life and legacy of white supremacy during the Reconstruction, Redemption, Jim Crow, and Harlem Renaissance eras, plus today. In many ways, Gates’s response in Stony the Road mirrors the actual response given by mother Kirkja Janson to her children. Janson replied to her kids: “[T]here are stereotypes out there that black people aren’t going to follow the rules and that black men, especially, are more dangerous than other men.”24 She continued, “It’s not based on the individual’s behavior. It’s based on stereotypes that go back a long time.”25

In Stony the Road, Gates reveals how this practice of constructing black people as an other to be feared,26 the helpless and childlike fool to be controlled and directed,27 the shiftless buffoon to be pushed to work,28 and the vicious and sex-crazed brute to be tamed29 continues to thrive in society today.In so doing, he introduces readers to the “Old Negro”—to the “stereotyped and debased” images of black people that were first defined during slavery and that have been reimagined throughout our nation’s history in order to justify the dehumanizing treatment that Blacks have long faced in the United States.30 As Gates declares early on, the “Old Negro” was “rural, Southern, impoverished, illiterate, premodern, ‘uncivilized,’ [and] even ‘unwashed.’”31 At the same time, Gates relays the emergence of the images and counternarratives that were created by Blacks as forms of resistance and as a means of galvanizing struggles against antiblack racism in the United States in the past and today.32 These images and counterstories center on what Gates refers to as the “New Negro.” In depicting the “New Negro,” Gates also critiques the manner in which presentations of the “New Negro” were entrenched in the “politics of respectability” and reified troubling assumptions about class differences among Blacks, including the need for the most “Talented Tenth” of the race to guide the masses.33

Although widely acclaimed in the media,34 Stony the Road has received scant attention in the legal realm. Indeed, neither academics, nor practitioners, nor judges have addressed its significance for the study of racism and its evolution in our nation’s legal system or for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. The purpose of this Review is to explore the relevance of the racial narratives distilled by Gates in Stony the Road to the practice of law inside this nation’s civil- and criminal-justice systems and, more generally, to critical theories of race, the persistence of racism, and race-conscious legal representation. To that end, this Review fuses a growing body of work on race and the lawyering process in the fields of civil rights,35 criminal justice,36 and poverty law,37 at times culling from the literature of legal ethics38 and legal education.39 The goal of this synthesis is to interrogate and reimagine how race should be situated in the legal representation of individual, group, and community clients of color.40

Read from the intersection of theory and practice, Gates’s Stony the Road offers several instructive lessons on race and legal representation germane to lawyers, judges, and academics. The first lesson is that the white-supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race. Much like white supremacist tropes, narratives, and images framed how then-Officer Yanez saw and understood Philando Castile during his approximately fiftieth police stop on July 6, 2016, they also shape the roles, mediate the relationships, and organize the methods of the lawyering process in civil-rights, poverty-law, and criminal cases. The second lesson is that the trials of these cases provide a forum for lawyers, judges, jurors, and even witnesses to race-code the identity of accused and convicted offenders, impoverished clients, and victims of discrimination in ways that reify white-supremacist tropes and diminish the agency of individuals, groups, and communities of color. Yanez’s defense testimony did this to Castile, defining Castile as someone he was not while Castile, in death, had no power to tell his own story and marking Reynolds as somehow less trustworthy because she had smoked marijuana that morning.41 The third lesson is that the trial of such cases also affords lawyers and clients meaningful, collaborative opportunities to reframe race-coded identity and provide new visions of self, namings, and identities. Such reframing can recover the presence of black agency, enhance the exercise of black power, and contextualize the impact of systemic racism on individuals, groups, and communities as a whole.

The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white-supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. This dual analysis recounts the institutionalization of white supremacy in the United States and the articulation of an opposing narrative of black agency, a narrative of civic community and cultural self-defense that is resonant today. By sketching the forms of Jim Crow imagery, and searching for the “Old Negro” and the “New Negro” dichotomies within the discourse of black people, Gates erects a critical backdrop for lawyers to understand the stereotypical beliefs that pervade white-supremacist ideology. In so doing, Gates illuminates how Jim Crow narratives infected (and continue to infect) law and why those narratives are still with us in proceedings ranging from high-profile race discrimination cases to lesser-known criminal trials.

Part II examines the lawyering process as a rhetorical site where racialized narratives and racially subordinating visions that trace their origins back to antebellum images of the “Old Negro” are adapted and deployed for use, interpretation, and rulings by lay witnesses, lawyers, experts, jurors, and judges during litigation. For example, Part II explores how lawyers have utilized stock race narratives42 linked to “Old Negro” stereotypes by using terms that have generally, and negatively, been associated with racial groups that have been debased in our society, instead of evidence and evidence-based terms of individual actions and contexts, to prove the purported dangerousness of defendants to jurors, who in turn rely on the harmful associations in the narratives they are told to read individual defendants and judge them in ways that comport with stereotype. Similarly, Part II analyzes how this same set of courtroom characters have employed racially subordinating visions that find their roots in the visual rhetoric of postbellum-Jim Crow laws and practices, as recorded by Gates in Stony the Road,tocast individuals, groups, and entire communities in terms of demeaning racial caricatures.

Part III evaluates the omnipresence, and the almost inescapability, of racialized narratives and racially subordinating visions under dominant legal regimes, namely under the race-neutral lawyering-process traditions and legal-ethics conventions that are integral to the profession. In many ways, racialized and racially subordinating visuals and narratives have become so deeply embedded and entrenched in our society that one need not speak or acknowledge race to racially frame and race-code any particular individuals or have the listeners or readers of those stories understand those individuals as linked to a particular race—in these cases, Blacks. A wide span of lawyers—criminal prosecutors and public defenders as well as civil-rights and poverty lawyers—routinely craft seemingly race-neutral, but very much racialized narratives and images in their work and thus implicitly justify these narratives as either natural or necessary to the legal process.43The logic of these racist tropes can be traced to the science, literature, and symbolism of Jim Crow segregation as excavated by Gates in Stony the Road. Such naturalistic rationales appeal to an immutable social order of race-based hierarchy, one that assumes the natural superiority of whiteness, the natural inferiority of blackness, and the accuracy of the racialized narratives and racially subordinating visions as a result. Further, necessitarian rationales invoke the adversary-system-derived duty of aggressive advocacy and the paternalistic obligation of means-oriented intervention to justify the use of race-infected narratives and visions.

Part IV puts forward an alternative set of race-conscious advocacy practices and ethics precepts infused with antisubordination norms of racial dignity and equality. It garners these norms from the early black-resistance movements documented by Gates and adapts them for use in contemporary legal cases attacking systems of structural inequality. Although the search for such alternative race-conscious practices and precepts reveals the continuities linking past resistance movements, such as the New Negro Renaissance, to the present Black Lives Matter movement, it also exposes the common tensions dividing those movements, especially intraracial class conflict and the politics of respectability.