Archive for the ‘Race’ Category
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post One Comment
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post No Comments
posted by UCLA Law Review
Volume 59, Issue 6 (August 2012)
|From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control||Kimberlé W. Crenshaw||1418|
|Prison, Foster Care, and the Systemic Punishment of Black Mothers||Dorothy E. Roberts||1474|
|Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System||Jyoti Nanda||1502|
|The New Racially Restrictive Covenant: Race, Welfare, and the Policing of Black Women in Subsidized Housing||Priscilla A. Ocen||1540|
|Justice for Girls: Are We Making Progress?||Francine T. Sherman||1584|
|Engendering Rape||Kim Shayo Buchanan||1630|
|Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody||Brenda V. Smith||1690|
|“In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights||George Lipsitz||1746|
|Unlocking the Gates of Desolation Row||Sara Taylor||1810|
posted by Leora Eisenstadt
In a recent case out of the Sixth Circuit, the court addressed the concept of “racial balance,” finding that an effort to achieve racial balance in disciplinary measures constitutes direct evidence of discrimination. While this is by no means the first case to deal with “racial balance” and discrimination, I am wondering: are all “racial balance” cases created equal?
In Ondricko v. MGM Grand, the plaintiff, a white woman, claimed reverse race discrimination (and sex discrimination) after she was fired from her job as a floor supervisor in the casino. Ondricko was ostensibly fired for participating in a “bad shuffle” at a blackjack table that she supervised. This type of incident is apparently not uncommon, and the court had at least six other similar incidents to compare involving white and black men and women who had engaged in similar conduct and whose discipline varied from several-day suspensions to terminations.
The “smoking gun” in this case is the interesting part. Four months before Ondricko’s incident, a black woman was terminated for her involvement in a similar incident involving unshuffled cards put into play. Around the time that supervisors were discussing the appropriate discipline for plaintiff, two managers had a conversation in which one noted that the black woman’s lawyers had called and wanted to know how the casino was going to handle Ondricko’s case (presumably because they viewed her as a similarly situated comparator). The other manager responded by saying, “do you think I wanted to fire [Ondricko], I didn’t want to fire [her], how could I keep the white girl?” The Sixth Circuit determined, based on this statement, that a reasonable jury could conclude that race was a motivating factor in the decision to terminate. “[I]t is certainly reasonable to conclude . . . that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.” In support of this proposition, the court cited another Sixth Circuit case involving a school board’s attempt to be racially balanced in the hiring of school employees. And that was essentially the end of the court’s analysis.
But Ondricko was not an affirmative action case nor was it a case about achieving racial balance in hiring. Instead, the case was about insuring racial balance in the employer’s discipline of its employees. The Sixth Circuit did not see a distinction between these two types of “racial balance” cases, but I think that is a flawed view. This case may not be the best example because the desire to mete out the same discipline across races was expressed in response to a call from a lawyer but what if that had not been the case? Although race is technically a motivating factor when an employer attempts to be “racially balanced” in its approach to disciplining employees, is that the type of case Title VII is intended to cover? Shouldn’t we, on some level, be encouraging employers to be mindful about race when meting out discipline and to insure that they are treating employees of all races the same? If they don’t, they risk disparate treatment claims for treating employees differently based on race. To call race a “motivating factor” in this type of case and not discuss the potentially legitimate reason for consideration of race seems to be a flawed or, at least, an incomplete analysis.
I think there is an analogy here to Ricci v. DeStefano, in which the Supreme Court recently concluded that an employer’s fear of disparate impact litigation is only a legitimate basis for intentional discrimination when the employer possesses a “strong basis in evidence” for believing that a valid disparate impact claim can be asserted. The Court in Ricci may have made my argument about Ondricko and racially balanced discipline more problematic, but I would be interested to hear others’ views on this issue.
posted by UCLA Law Review
Volume 59, Discourse
|The New Ambiguity of “Open Government”||Harlan Yu & David G. Robinson||178|
|Defusing Implicit Bias||Jonathan Feingold & Karen Lorang||210|
|Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?||John D. Castiglione||230|
posted by Leora Eisenstadt
As I mentioned in my prior post, I am thinking a lot right now about the intersection between identity and linguistic meaning as it impacts employment discrimination. In my last post, I wrote about the Seventh Circuit’s view of the word “bitch” and its failure to mention the relevance of the gender identity of the speaker of that word when considering its contextual meaning. I recently posted a draft of my article on this topic, “The N-Word at Work: Contextualizing Language in the Workplace,” on SSRN. The article primarily deals with the “n-word” but makes the broader point that linguistic meaning is a product of numerous contextual factors including the racial, gender, religious, etc. identity of the speaker and listeners.
“The N-Word at Work” argues that there is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general. For example, in American culture, it is a virtually universally accepted reality that a word, like the “n-word,” can have horrific or endearing meanings depending on the identity of the speaker and other contextual factors. There is a striking difference between a white man using the word with his colleagues and a black man using it among his friends. But given Title VII’s prohibition of different treatment on the basis of race, the white man’s use of the term raises difficult questions about whether he can claim protection from discipline under Title VII’s reverse race discrimination jurisprudence.
Nonetheless, both the legal literature and judicial system have largely ignored this problem of language in discrimination cases. Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases. Despite this, the problem persists among appellate and district courts alike.
My article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed. The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit. Finally, the article suggests solutions to this seemingly intractable problem, including the need to (1) recall the purposes of anti-discrimination law and the permissible non-literal applications of that law, and (2) permit and encourage the use of extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Any comments on the topic in general and the solutions I offer would be helpful as I am currently revising the article and am working on my next project, which deals with the changing nature of identity and the “protected class” paradigm in discrimination law.
posted by Danielle Citron
My colleague (and guest blogger) Sherrilyn Ifill has an insightful post on Anne-Marie Slaughter’s attention-grabbing Atlantic piece and future book on the silly notion of “having it all.” As Professor Ifill’s post makes clear, Slaughter’s lament captures a microscopic part of the problem–most working women, especially minorities, cannot remotely have any part of the illusory promise. Professor Ifill calls upon professional women, the 1%, to help the plight of the other 99% of working women with kids, because they can and because they should. Professor Ifill’s post on the relevance of legal scholarship rightly captured lots of attention, and this post should too.
posted by Vanderbilt Law Review
Vanderbilt Law Review En Banc is pleased to present the first round of our current Roundtable, which looks at Fisher v. University of Texas at Austin. Fisher will be argued in the October 2012 Supreme Court Term and the Court will consider whether the University of Texas’s use of race in its undergraduate admissions process is lawful under the Equal Protection Clause of the Fourteenth Amendment.
Professors Vikram Amar, James Blumstein, Tomiko Brown-Nagin, Girardeau Spann, and Gerald Torres consider the issues and offer their views on how the Court might—or should—approach this case in their “First Take” articles. In approximately eight weeks, these same scholars will offer responses to each other’s essays. We look forward to a spirited debate on these interesting and often contentious issues.
Roundtable: First Takes
Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Vikram David Amar · 65 Vand. L. Rev. En Banc 77 (2012)
Grutter and Fisher: A Reassessment and a Preview
James F. Blumstein · 65 Vand. L. Rev. En Banc 57 (2012)
The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Tomiko Brown-Nagin · 65 Vand. L. Rev. En Banc 113 (2012)
Fisher v. Grutter
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 45 (2012)
Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Gerald Torres · 65 Vand. L. Rev. En Banc 97 (2012)
posted by Angela Harris
I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.
These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.
Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.
What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left). Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.
This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.
Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.
In his book A Secular Age, Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.
posted by Janai S. Nelson
I am delighted to join the blogging community of Concurring Opinions for the month of April. Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.
Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story. Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena. Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas. In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.
Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony. Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation? Elimination of certain criminal laws? I can fathom many other lawful motivations for voting. However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.
I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box. Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote. Not so for citizens with felony convictions. This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read the rest of this post »
April 3, 2012 at 9:37 am Tags: Constitutional Law, Election law, equal protection, felon disfranchisement, First Amendment, prisoner's rights, right to vote, voting qualifications, voting rights Posted in: Administrative Law, Civil Rights, Constitutional Law, Courts, Culture, Current Events, Election Law, Law and Humanities, Race, Uncategorized Print This Post 14 Comments
posted by Angela Harris
“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”
As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.
Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.
But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”
Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.
As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.
Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.
Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”
The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.
And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.
Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.
But perhaps an awkward commitment to justice is better than no commitment at all.
P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.
P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.
posted by Amanda Pustilnik
Media outlets around the world reported yesterday that a pill can make people less racist.
Is this for real?
The answer is less racy – and less raced – but actually more interesting than the headlines suggest.
Researchers at the Oxford University Centre for Practical Ethics, led by Sylvia Terbeck, administered a common blood-pressure lowering drug, called propranolol, to half of a group of white subjects and a placebo to the other half. (Read the study’s press release here and the research paper here) The subjects then took a test that measures “implicit associations” – the rapid, automatic good/bad, scary/safe judgments we all make in a fraction of a second when we look at words and pictures. The subjects who took the drug showed less of an automatic fear response to images of black people’s faces and were less likely to associate pictures of black people with negative words than the subjects who did not take the drug. Based on the study’s design, it is likely that results would be the same in trials involving racism by and against other racial and ethnic groups.
This looks like the pill treated racism in the research subjects. But this isn’t so.
Researchers have long known that propranolol has a range of effects that include lethargy, sedation, and reductions in several kinds of brain activity. In high-flown medical parlance, this drug makes people really chilled out. I know: I’ve been on propranolol myself (unsuccessfully) for migraine prevention. When I was on the drug, my biggest fear was falling asleep at work – and even that didn’t stress me as much as it should have.
Because propranolol muffles fear generally, it reduces automatic negative responses to just about anything. Propranolol has been used to treat everything from “uncontrolled rage” to performance anxiety and is being explored for treating PTSD. Very recent research shows that it generally reduces activity in the brain region called the amygdala (more on that, below).
But the study remains interesting and important for a few reasons. This is the first study to show that inhibiting activity in the amygdala, which is crucially involved in fear learning, directly reduces one measure of race bias. This validates extensive research that has correlated race bias with heightened activity in that brain region. (Although some contrary research also challenges the association.) So this study helps support the idea of a causal relationship between automatic or pre-conscious race bias and conditioned fear learning.
The cure for racism born of conditioned fear learning is not to chemically dampen the brain’s response to fear generally – because fear is often useful – but to attack the causes of the conditioned associations that lead to bias in the first place.
The rest of this post will show how the fear response, claims about race, and the way the drug works all come together to point to the social nature of even “neurological” race bias – and to its economic and legal repercussions.
The fear response
When we see something that frightens or startles us, several regions of the brain become active – particularly the amygdala. The amygdala has many functions, so a neuroimage showing activity in the amygdala does not necessarily mean that a person is experiencing fear. But if a person has a frightening experience (loud noise!) or sees something she’s afraid of (snakes!), activity in the amygdala spikes. This activity is pre-conscious and totally outside our control: We startle first and then maybe stop to think about it.
The automaticity of fear serves us well in the face of real threats – but poorly in much of daily life. Fear learning is overly easy: A single negative experience can create a lasting, automatic fear association. Repeated, weak negative experiences can also form a strong fear association. And, we can “catch” fear socially: If my friend tells me that she had a negative experience, I may form an automatic fear association as if I had been frightened or harmed myself. Finally, fear lasts. I can consciously tell myself not to be afraid of a particular thing but my automatic fear response is likely to persist.
Race bias and the fear response
In neuroimaging studies using functional magnetic resonance imaging (fMRI) on white and black Americans, research subjects on average have a greater amygdalar response to images of black faces than to images of white faces. Researchers have interpreted this as a pre-conscious fear response. Indeed, the more that activity in a person’s amydala increases in response to the images of black faces, the more strongly he or she makes negative associations with images of black faces and with typically African-American names (see paper here).
These automatic fear responses matter because they literally shape our perceptions of reality. For example, a subject might be asked to rate the facial expressions on a set of white and black faces. The facial expressions range from happy to neutral to angry. A subject who has a strong amygdalar response to images of black faces is much more likely to misinterpret neutral or even moderately happy expressions on a black facial image as being hostile or angry. This shows how fear changes our perceptions, which in turn changes how we react to and treat other people. It also shows how fear alters perception to create a self-reinforcing loop.
This kind of pre-conscious or automatic racism matters economically and legally: A majority of white people who have taken these implicit association tests demonstrate some automatic bias against black faces both associationally and neurologically. White people numerically and proportionally hold more positions as decision-makers about employment – like hiring and promotion – and about legal process and consequences – like whether to charge a suspect with a crime, the severity of the crime with which to charge him or her, and whether to offer a generous or harsh plea bargain. A study of two hundred judges serving in jurisdictions across the United States has shown that judges, too, more readily make these automatic, negative associations about black people than they do about white people. The implication is that automatic racial bias could play a role in pervasively tilting the scales against black people in every phase of economic life and in every phase of the legal process.
Yet, current anti-discrimination law only prohibits explicit racial bias. An employer may not advertise a position as “whites only” nor fire nor refuse to promote a worker because the employer does not want to retain or advance a black person. Systematic racial bias that creates unlawful “disparate impact” also rests on explicit racism: plaintiffs who claim that they are proportionally under-represented in, say, hiring and promotion by a particular employer must show that the disparate impact results from an intentional discriminatory purpose.
Automatic race bias, by contrast, takes a different form – a form not barred by law. Automatic discrimination expresses itself when the white supervisor (or police officer, or prosecutor, or judge, or parole board member) just somehow feels that his or her black counterpart has the proverbial “bad attitude,” or doesn’t “fit” with the culture of the organization, or poses a greater risk to the public than an equivalent white offender and so should not be offered bail or a plea deal or be paroled after serving some part of his sentence.
Tying it all together
If current anti-discrimination law does not touch automatic bias, and automatic bias is pervasive, then does this point to a role for drugs?
On propranlol, an implicitly biased interviewer or boss might perceive a black candidate more fairly, unfiltered by automatic negative responses. (She might, of course, still harbor conscious but unstated forms of bias; propranolol certainly would not touch race-biased beliefs about professionalism, competence, and the like.) But it also would generally dampen the decision-maker’s automatic fear responses. An overall reduction in automatic negative responses would not necessarily be a good thing: while it might free decision-makers from some false negative judgments based on race, it also would likely impair them from picking up on real negative signals from other sources.
And the take-away …
That a fear-dampening drug reduces racial bias in subjects helps confirm that much racial bias is based in automatic negative responses, which result from conditioned fear learning. Although this finding is hardly surprising, it is interesting and important. Any person reading this study should ask him- or herself: How does automatic fear affect my decisions about other people? How does it affect the judgments of important economic and legal decision-makers? How can we make it less likely that the average white person sees the average black person through distorting fear goggles in the first place?
The problem with this study and the headlines hyping it is that they perpetuate the idea that racism is the individual racist’s problem (It’s in his brain! And we can fix it!). A close reading of the study points to the importance of socially conditioned fear-learning about race – which then becomes neurologically represented in each of us. Despite the headlines, racism is not a neurological problem but a cultural one, which means that the solutions are a lot more complex than popping a pill.
posted by UCLA Law Review
Volume 59, Discourse
|Putting Down: Expressive Subordination and Equal Protection||Jeffrey S. Helmreich||112|
|Tinkering With the Machinery of Life||Ben Trachtenberg||128|
|Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act||Christina E. Wells||136|
The Problem with Affirmative Action After Grutter: Some Reflections on Fisher v. University of Texas
posted by Khiara M. Bridges
It’s official: the Supreme Court will hear Fisher v. University of Texas at Austin this term. The Court will determine the constitutionality of the university’s use of race in its undergraduate admissions decisions. Because Justice Kagan has recused herself, supporters of affirmative action must hope (pray!) for a 4-4 split – with Justices Breyer, Ginsburg, Sotomayor, and Kennedy on one side and Justices Alito, Roberts, Scalia, and Thomas on the other.
But, what’s the likelihood that Justice Kennedy will swing to the left? After all, he dissented in Grutter. Part of his discontent in 2003 concerned Michigan Law’s notion of a “critical mass.” Michigan Law argued, and the majority accepted, that a “critical mass” of minority students would promote “cross-racial understanding,” undermine racial stereotypes, prepare students for the “multicultural workforce” that exists outside the law school’s doors, and prevent minority students from having to be “spokespersons for their race.” Essentially, admitting less than a “critical mass” of minority students would be an exercise in futility; however, admitting a “critical mass” of them would further the compelling state interest in securing the educational benefits of having a diverse student body. But, Kennedy protested that he was not fooled by the concept of “critical mass.” To him, “critical mass” walked like a quota and quacked like a quota. “Aha!,” Kennedy exclaimed in dissent. “It’s a quota!” And quotas are, of course, constitutionally repugnant.
So, it may be a bit ominous for those who want to see the University of Texas’ affirmative action program survive review that the university specifically and explicitly argues that it uses race in its admissions decisions in order to ensure that its student body contains a “critical mass” of racial minorities. As Justice Blackmun said in another context: “The signs are evident and ominous, and a chill wind blows.”
Notably, Justice Kennedy did not have a problem with the Grutter majority’s holding that student body diversity was a compelling governmental interest. He noted in his dissent that he found “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”; his disquietude was solely with the way that Michigan Law pursued this interest. Thus, if Texas’ program is struck down this term, it will not be because a majority has found that achieving student body diversity is no longer a compelling governmental interest.
Yet, this holding is, for me, the most disturbing part of Grutter. I get it: we have to argue in the language of “diversity” in order to justify affirmative action programs because the jurisprudence will not allow us to argue successfully in the language of “remedying past societal discrimination.” But, while the end is the same (more racial minorities gain access to schools that otherwise would be inaccessible), the means to the end are troubling. Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”? The answer may be that those who are imagined to benefit from programs designed to “remedy past societal discrimination” are only the minority groups that were victims of discrimination; however, those who are imagined to benefit from programs designed to increase diversity include nonminorities. To be clear: the programs are the same. But, when “diversity” is the justification for the program, it allows us to imagine that even White people benefit. Nonwhite people and White people acquire cross-racial understanding. Nonwhite people and White people are disabused of racial stereotypes. Nonwhite people and White people are prepared to enter a multicultural workforce. There are no losers with diversity! It’s a win-win!
And I’m pretty sure that individuals of all racial ascriptions and identifications benefit from racially diverse environments. However, my issue is that when the interest was framed in terms that focused only on the benefit that minorities would receive from affirmative action – when it was articulated in the language of “remedying past societal discrimination” – a majority of the Court refused to find that this interest was compelling. Rectifying the enduring effects of the mistreatment, the disenfranchisement, the denial of citizenship, the abuse… That’s definitely legitimate. It may even be important. But, it’s not compelling. Diversity, on the other hand? That’s the stuff that the Fourteenth Amendment can sink its teeth into!
At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion. There’s something unsettling about that. There’s also something unsettling about the work that the acceptance of the diversity argument, coupled with the rejection of the remediation argument, does to deny that the effects of past societal discrimination even exist. Diversity screams, “Racism is dead!” But, could it be that the premature celebration of racism’s demise is the very sign that demonstrates that racism is alive and well? That is: nonwhite people – Black people, specifically – are poorer, sicker, more frequently incarcerated, die earlier, more likely to die violent deaths, etc., than their White counterparts. If these disparities are not the effects of past societal discrimination – if these disparities are not the effects of institutional mechanisms – then what explains them? The focus shifts to individuals and their pathological choices, behaviors, lifestyles, cultures, instincts, etc. And racism is just a stone’s throw away.
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0 Print This Post 3 Comments
posted by Danielle Citron
Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published. My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year. And rightly so: the book is insightful, important, and engrossing. Before I reproduce below my interview with Professor Allen, let me introduce her to you. She is a true renaissance person, just see her Wikipedia page. Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School. She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program. In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow. Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals. She also writes for the Daily Beast and other popular media.
Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed?
I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011). My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families. In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die. Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.
To use a cliché, it’s a brave new world. Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy. Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.
The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.
Question: Your book coins the phrase “unpopular privacy.” In what way is privacy unpopular?
First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure. For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.
I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to. My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control. (I call such people the beneficiaries and targets of privacy laws.) “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members. My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.
Question: If people don’t want privacy or don’t care about it, why should we care?
We should care because privacy is important. I urge that we think of it as a “foundational” good like freedom and equality. Privacy is not a purely optional good like cookies and sports cars. Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions. I agree with moral, legal and political theorists who have argued that privacy is a right.
I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self. I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.
If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms. Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read the rest of this post »
posted by Kaimipono D. Wenger
It’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.
The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”
This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race. Read the rest of this post »
posted by Olivier Sylvain
Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.
Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”
Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.
In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness. Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
Read the rest of this post »
September 5, 2011 at 11:52 pm Posted in: Constitutional Law, Culture, Current Events, First Amendment, Media Law, Philosophy of Social Science, Politics, Race, Social Network Websites, Sociology of Law, Technology, Web 2.0 Print This Post 8 Comments
Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone
posted by June Carbone and Naomi Cahn
Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).
A half century ago, high rates of marriage were close to universal. The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising. Today, marriage has emerged as a marker of class for the country as a whole. For the first time ever, fewer than half of all households consist of married couples. Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair. According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education. Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else. In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent. As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans. While the white non-marital birth rate for college graduates has stayed at 2%; for African-American college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report. National Marriage Project, fig. S.2, p. 56.
Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue. In Is Marriage for White People? How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass. While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women. Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book. Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men. So, too, is his solution. He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.
While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues. He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around. He also does not question the importance of marriage. Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance. On this issue, Banks gets a pass. He does not take on the larger issue of family organization. Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.
posted by David Schraub
The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.
When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).