Connecting Critical Race Theory with Second Generation Legal Consciousness Work in Obasogie's Blinded by Sight

Sociologist and legal scholar Osagie Obasogie's study of how blind people “see” race reveals the usually invisible, taken‐for‐granted mechanisms that reproduce racism. In Blinded by Sight, he distinguishes racial consciousness from legal consciousness, though he notes their common emphases on studying how cumulative social practices and interactions produce commonsense understandings. I argue that there is much to be gained from connecting these two fields, one emanating primarily out of critical race theory and the other out of law and society scholarship. Legal consciousness offers an important avenue for bridging macro studies of race making with micro studies such as Obasogie's, which focus on individuals’ experiences and practices of constructing race and learning racism.     

Toward a New Legal History of Capitalism and Unfree Labor: Law,Slavery, and Emancipation in the American Marketplace

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.     

The politics of race and juvenile justice: The “due process revolution” and the conservative reaction

Through the prism of race, this article analyzes the social structural and political context of juvenile justice law reforms over the past half century. Throughout the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on recalcitrant southern states that still adhered to a segregated Jim Crow legal regime, and these norms provided the impetus for the Supreme Court's juvenile court “due process” decisions in the 1960s. The article then analyzes sociological, criminological, racial factors, media coverage, and political dynamics of the 1970s and 1980s that contributed to the “get tough” legislative reformulation of juvenile justice policies in the 1990s. During this period, conservative Republican politicians pursued a “southern strategy,” used crime as a code word for race for electoral advantage, and advocated “get tough” policies, which led to punitive changes in juvenile justice laws and practices and have had a disproportionate impact on racial minorities.     

Race and place: The ecology of racial profiling African American motorists

We propose an ecological dimension to racial profiling by comparing the distribution of drivers on the roadways with officers' proactive surveillance and stop behavior in a predominantly white suburban community bordering a predominantly African American community. African Americans are subject to significant racial profiling, as reflected in disproportionate surveillance and stopping by the police when driving through whiter areas. Officers' behavior is not explained by African Americans' criminality because the “hit rates” for African American drivers are lower in white areas. Profiling is sensitive to race and place and manifests itself organizationally, reflecting community patterns of residential segregation.     

Reflections on a Funhouse Mirror—Racist Violence,the Protection of Privilege,and the Limits of Tolerance

Jeannine Bell's Hate Thy Neighbor: Move In Violence and the Persistence of Racial Segregation in American Housing provides an account of racist violence as a tool for maintaining housing segregation that challenges perceptions of rising tolerance and demonstrates the importance of understanding racism as a structural feature of social organization. Bell shows how some perpetrators of move in violence deploy claims about “property values” as a defense against charges of racism. The use of such claims starkly illustrates how colorblind racism allows assertions of racial privilege to resonate as neutral articulations of rational self‐interest. The desire to defend racial privileges persists as a significant practical barrier to racial equality even when tolerance increases.     

Legal History and the Problem of the Long Civil Rights Movement

This essay offers a critical examination of use of the term “long civil rights movement” as a framework for understanding the legal history of the battle against racial inequality in twentieth‐century America. Proponents of the long movement argue that expanding the chronological boundaries of the movement beyond the 1950s and 1960s allows scholars to better capture the diverse social mobilization efforts and ideas that fueled the black freedom struggle. While not questioning the long framework's usefulness for studying the social movement dynamics of racial justice activism, I suggest that the long framework is of more limited value for those who seek to understand the development of civil rights, as a legal claim, particularly in the first half of the twentieth century. The tendency of long movement scholars to treat civil rights as a pliable category into which they can put any and all racial justice claims is in tension with historical understandings of the term. Susan Carle's Defining the Struggle: National Organizing for Racial Justice, 1880–1915 suggests an alternative approach. Her detailed and nuanced account of a period in American history when racial justice activists understood civil rights as a relatively narrow subset of legal remedies within a much broader struggle for racial equality indicates the need for an alternate history of civil rights—one that places the evolving, contested, and historically particularized concept of civil rights at the center of inquiry.     

Playing the race card: Making race salient in defence opening and closing statements

Purpose. Researchers have reported that making a Black defendant's race salient reduces White jurors' tendency to find Black defendants guilty ( Sommers & Ellsworth, 2000 ). We examined whether making race salient by including racially salient statements in the defence attorney's opening and closing statements (i.e., ‘playing the race card’) reduced White jurors' racial bias against a Black defendant. Method. We obtained scores on racial attitudes for 151 White college students who participated in an experiment where defendant race (Black, White) and race salience (not salient, salient) were manipulated in a between‐subjects design. Participants read one of four trial stimuli and completed dependent measures. Results. ‘Playing the race card’ reduced White juror racial bias as White jurors' ratings of guilt for Black defendants were significantly lower when the defence attorney's statements included racially salient statements. White juror ratings of guilt for White defendants and Black defendants were not significantly different when race was not made salient. This effect was separate from jurors' level of prejudice (as measured by racial attitudes) as high prejudice participants were more likely than low prejudice participants to find the Black defendant guilty, independent of the race salience manipulation. Conclusion. Our study indicated that an explicit attempt by a defence attorney to ‘play the race card’ was a beneficial trial strategy a defence attorney could use to reduce White jurors' bias towards Black defendants. However, the beneficial effect of such a strategy may not reduce White jurors' bias towards Black defendants for all White jurors.     

Calavita's Law & Society: (En)racing Law and Society

One of the sharpest critiques of law and society scholarship in recent years has come from scholars who maintain that law and society scholarship fails to address the issue of race appropriately. This essay considers several critiques of law and society scholars' engagement with issues of race and uses them to evaluate Kitty Calavita's exploration of race in Invitation to Law & Society: An Introduction to the Study of Real Law (2010). The essay advocates the use of “race as process” as a mode of analysis that will allow for greater explanatory power to law and society scholarship when it touches on racial issues.     

Rorschach Tests,Pluralism, and Hopes for the Future: A Response to the Responses

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.     

Racially Restrictive Covenants—Were They Dignity Takings?

Racially restrictive covenants—subdivision rules or neighborhood agreements that “run with the land” to bar sales of rentals by minority members—were common and legally enforceable in the United States in the first half of the twentieth century. In spite of their demeaning character, these racial covenants took away opportunities from excluded minorities, rather than things, and thus they amounted to something less than the dramatic “dignity takings” that Bernadette Atuahene (2014) describes in her new book on dignity takings in South Africa. In this article, I explore some significant ways in which racially restrictive covenants differed from dignity takings as Atuahene defines them, as well as the shadowy similarities between racial covenants and Atuahene's dignity takings; I focus here on the dimensions of dehumanization, state involvement, and property takings. I conclude with a discussion of remedies, particularly considering measures that restore dignity through both public policies and private actions.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Failed Governance: A Comment on Baker and Griffith's Ensuring Corporate Misconduct

This essay evaluates Baker and Griffith's book, Ensuring Corporate Misconduct, as a contribution to the social science literatures on regulation and governance, risk, and insurance. Previous social science work on insurance often took an “insurance on the ground” perspective comparing how insurance actually works with the theory of insurance and scrutinizing the actions of insurers as well as the actions of their policyholders. In line with this perspective, Baker and Griffith find that directors and officers (D&O) insurers do not actually charge premiums that vary with risk or monitor the actions of the officers and directors covered by the insurance. Because insurers and governments share governance tasks (a point Baker makes elsewhere), insurers' failures in fact amount to “failed governance” of the corporate world.     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

Driving While Black

Abstract

The phenomenon of “driving while black” has ignited a heated debate: Do the police use race to target drivers? Most research on the topic compares the number of police stops and searches for a racial group to that group's distribution in the population. This approach ignores sociological theories of law, the driver's social status, the combined influence of race and sex, and whether the driver carries drugs in the car. In addition, the police are aware of being observed. To address these limitations, we surveyed undergraduates (N = 1,192) at one of the most diverse universities in the nation about their experiences with the police and their personal criminal behavior. Drawing on Black's (1976) theory of law, we examine whether a driver's race, sex, and social status influence police behavior (stop, exit, frisk, search, ticket/arrest). We also examine which drivers are most likely to have drugs in the car. The results suggest that a driver's race, sex, and social status all shape police behavior: African American men and Hispanic men experience more social control than white men; all men experience more social control than women; and low status drivers experience more social control than high status drivers. But despite the police focus on minority males, white males were the most likely to report carrying drugs in the car.     

Religion and the Practices of Popular Constitutionalism: Sarah Gordon's The Spirit of the Law

Sarah Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) details the advent, beginning in the 1940s, of a “new constitutional world” pertaining to the religion clauses. By focusing on case studies, Gordon's narrative history shows the emergence, maturation, and waning of a rich historical moment in which religiously motivated popular constitutionalists had a profound impact on how the Constitution was technically interpreted by the courts. Shifting perspectives from history to ethnography, the essay synthesizes Gordon's stories to yield an anatomy of “religious” popular constitutionalism as it appears in Gordon's book and conjectures at what it might look like if we left court records behind.     

When More than Property Is Lost: The Dignity Losses and Restoration of the Tulsa Riot of 1921

Bernadette Atuahene's We Want What's Ours focuses on deprivations that go beyond property losses. Her focus is on the dignity harms to South Africans over centuries, such as denial of citizenship, that accompanied the theft of their land. I focus here on one grotesque episode of violence, the Tulsa race riot of 1921, to gauge dignity takings in a US context. Thousands were, in the parlance of the times, run out of town in a “negro drive.” They lost property, but also their community, and they could not assert their rights after the riot. This article turns to the ways in which African Americans in Oklahoma obtained rights through the courts that should have been protected around the time of the riot. This expands our sense of the range of responses, from apologies and compensation, to additional judicial process and substantive rights, that are needed for past racial crimes.     

Interpreting “Percent Black”

Abstract

Time series analysis is employed to assess the relationship between “percent Black” and violent crime in Washington D.C. over a 40-year period. Race-disaggregated violent crime arrest data are also examined. It is concluded that while there is some indication of a positive relationship between violent crime and “percent Black” over time, that relationship is not robust when disaggregated by race and crime type and may be limited to Black robbery offending. Further, it appears that “percent Black” may be serving as a proxy for other social problems. An exploration of possible correlates of racial disparity in violent arrests suggests that they are associated with a variety of factors, including social problems and their disparities.     

An Empirical Analysis of 30 Years of U.S. Juvenile and Adult Sexual Homicide Offender Data: Race and Age Differences in the Victim–Offender Relationship

Abstract: Little is known about the racial patterns of crimes committed by sexual homicide offenders (SHOs). This study examined race and age influences on victim–offender relationship for juvenile and adult SHOs. A large sample (N = 3868) from the Supplemental Homicide Reports (1976–2005) was used. Analyses of victim–offender patterns included examining victim age effects (child, adolescent, adult, and elderly). The findings revealed several race‐ and age‐based differences. Black offenders were significantly overrepresented in the SHO population. This finding held for juveniles and adults independently. White SHOs were highly likely to kill within their race, “intra‐racially” (range 91–100%) across four victim age categories, whereas Black SHOs killed both intra‐racially (range 24–82%) and inter‐racially (18–76%), with the likelihood of their killing inter‐racially increasing as the age of the victim increased. This study underscores the importance of considering victim–offender racial patterns in sexual murder investigations, and it offers practical implications for offender profiling.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.