Historic Injustice, Group Membership and Harm to Individuals: Defending Claims for Historic Justice from the Non-Identity Problem

Oct 29, 2010 by Journal

By Ori J. Herstein

Some claim “slavery did not harm the descendants of slaves” since, without slavery, its descendants would never have been born and a life worth living, even one including the subsequent harms of past slavery, is preferable to never having been born at all. This creates a classic puzzle known as the “non-identity argument,” applied to reject the validity of claims for historic justice based on harms to descendants of victims of historic wrongs: since descendants are never harmed by historic wrongs, they have no right to rectification. This conclusion is unintuitive.

This article explains the nature of harm involved in historic injustice, overcoming the hurdle the non-identity argument poses to historic justice claims. Historic injustice and the harms it generates are best understood as group harms. Claims for historic justice can be grounded in harms that currently living individuals suffer as a function of the harms their group or community presently suffers as a consequence of historic wrongs. One form of harm, “constitutive harm,” differs from the aggregative account of harm assumed by the non-identity argument and is immune to it. It is the type of harm people suffer as members of certain historically wronged groups and communities. Therefore, the constitutive harm people suffer in cases of historic injustice may serve as a basis for justifying claims for historic justice.

Racist

Oct 29, 2010 by Journal

By Robert Steinbuch

Racist has become a largely meaningless term of political invective-like . . . Liberal, Neocon[servative], name your favorite term of political invective. In the opinionation business, being called a racist isn’t so much an insult as an occupational hazard. As often as it’s thrown around, the term Racist has come to mean anybody you really, really dislike. Or just really, really disagree with.

So said the newspaper of record in Little Rock, Arkansas—the Democrat-Gazette—the city in which I live and teach law. Disturbingly, I have heard the same sentiment from others—some of whom are quite learned. I am troubled by this idea, not only because I think that it is wrong but because I think that it is wrongheaded. I have never been called a racist.

Had I been, however, I would have been deeply offended and hurt, because the label of “racist” constitutes a demonstrably negative epithet. The label of “racist” disparages its recipient precisely because it properly conveys the evil of hatred towards mankind. As a practicing Jew, I can personally attest to this evil—having experienced discrimination throughout my academic and professional life in forms varying from insensitivity and intolerance, to outright verbal and physical hostility. I would do my family an injustice, however, if I did not make clear that my experiences pale in comparison to the discrimination that many of my relatives suffered. My father, for example, lived under both Nazi occupation and Stalinist rule during World War II. His ordeal could fill a book, but the highlights—if I can use this word to describe such difficulties—include traveling for two months in a freight train to spend a year in a barbed-wire encircled prison camp in Siberia. He and his fellow prisoners lived in unheated huts without plumbing or electricity, under the constant watchful eye of the Soviet military. My father was a child, but the adults were taken daily by armed guard to perform manual labor. During the Siberian winter, the old and weak died, while the young and strong fought over the limited food available. My father’s experiences, though dreadful, were nonetheless preferable to those of my numerous relatives who were directly tortured and murdered by the Nazis. Thus, I feel that I am particularly aware of the horrors of racial discrimination. I am equally sensitive to the accusation of racism, as well as the particular dangers of the wrongful accusation of such, i.e., race-baiting. Racebaiting constitutes the specific genre of name-calling that “impl[ies] that there is an underlying race based motive in the actions of others towards the group baited, where none in fact exists.” Race-baiting etymologically and historically relates to red-baiting, the act of “accusing someone . . . of being communist. . . . The term [has been] used mainly with the intention of discrediting the individual’s or organization’s political views.” Indeed, red-baiting has a particularly pernicious and shameful past. During two historic periods in the United States, the 1920s and the 1950s, the mere assertion of an association with communism bore dramatically negative consequences, including suicides, destroyed careers, and devastated families. Several industries, including the film industry, “banned those named and a whole lot of others for decades.”9 Race-baiting equally devastates its subjects.

From the Ivory Tower to the Glass House: Access to “De- Identified” Public University Admission Records to Study Affirmative Action

Oct 29, 2010 by Journal

By Richard J. Peltz

Admissions processes at public universities are too often and too extensively shielded from public view, a policy that minimizes these schools’ accountability to the public and obstructs legitimate inquiry into government policies in politically volatile areas such as affirmative action. Although officials of “ivory tower” public institutions often invoke privacy laws to justify this shield against disclosure, such laws are mistakenly applied in this context. The specter of individual student privacy should not, and need not, prevent the sunshine of public scrutiny from filtering through the glass house of the public university admissions office. Educational institutions are entirely capable of protecting the privacy of individual students as mandated by federal law, while also complying with state freedom of information laws designed to ensure the accountability of public authorities,—by redacting personally identifying information from public educational records and disclosing only anonymous, or “de-identified,” student data. With affirmative action an especially hot-button political issue—ballot initiatives were proposed in Arizona, Colorado, Missouri, Nebraska, and Oklahoma for the November 2008 election1—voters should be permitted to access redacted public education records that will help them make informed decisions on these and other important political issues. This article explains how state and federal laws, including a newly proposed rule of the U.S. Department of Education, already harmonize needs for both privacy and access in permitting or requiring the disclosure of “de-identified” student data.

Ready, Aim, Fire? District of Columbia v. Heller and Communities of Color

Oct 29, 2010 by Journal

By Michael B. de Leeuw, Dale E. Ho, Jennifer K. Kim, and Daniel S. Kotler

The Supreme Court’s recent decision in District of Columbia v. Heller held that a municipal ban on handguns is unconstitutional under the Second Amendment, but left  open the possibility of reasonable regulations on firearms. Given the outrageous levels of firearms-related violence in many urban areas—violence that disproportionately affects communities of color—the question of what constitutes a reasonable regulation should be an issue of major concern to civil rights activists and lawyers. This article evaluates Heller in light of these issues, and argues in favor of a general presumption that local legislatures are best situated to balance the costs and benefits of firearms regulations. Moving forward, municipalities should be afforded broad discretion in enacting such regulations, consistent with the Court’s decision in Heller.

Densely populated urban municipalities typically have the nation’s most restrictive firearms laws, largely as a response to the scourge of firearms-related violence in those communities. African Americans in particular represent a grossly disproportionate percentage of the victims of gun violence: in 2004 in the District of Columbia, for instance, all but two of the 137 firearms-related homicide victims were African Americans. Heller, however, will likely herald significant litigation challenging local firearms laws. We argue that if such litigation is successful, it could unnecessarily limit the discretion of urban municipalities to regulate public health and safety, to the detriment of communities of color. The second half of our article considers a contrary view—put forth by academics like Robert Cottrol and Raymond Diamond—that firearms restrictions do not serve the interests of African Americans. Cottrol and Diamond argue that, historically, firearms restrictions have been enacted with racially discriminatory intent, and furthermore, that the vigorous enforcement of firearms restrictions has racially disproportionate penal consequences rivaling the costs of firearms-related violence itself.

Sex, Drugs, and . . . Race-to-Castrate: A Black Box Warning of Chemical Castration’s Potential Racial Side Effects

Oct 29, 2010 by Journal

By Marques P. Richeson

The social oppression and castration of black men is rooted in race and gender. Intersectional theories that explicitly or implicitly suggest that black men are privileged by gender are thus flawed. Black men, instead, are also the victims of “gendered racism.” Indeed, there is a gender analysis implicit in the notion that white supremacy “castrates” black men – castration itself is an act of gendered racism. Historically, black men have thus been targeted for certain types of treatment – including
castration – because they are both black and male. Therefore, although men constitute the dominant and privileged group within American society, black men convey a “subordinated masculinity.” Black masculinity as a subordinated form of masculinity arises because the interplay between racial and socioeconomic prejudices prevents black males, as individuals, from reaping the full benefits of male class privilege.

Science Fictions and Racial Fables: Navigating the Final Frontier of Genetic Interpretation

Oct 29, 2010 by Journal

By Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biological difference fuelled the “race science” of the eighteenth and nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be understood as a socio-political construction with no biological meaning. Modern theories thus understand race as a social grouping of persons necessary to preserve unbalanced relationships of power.

Beyond Colorblindness: Neo-Racialism and the Future of Race and Law Scholarship

Oct 29, 2010 by Journal

By Ralph Richard Banks

Anniversaries are a time to reflect, to reexamine the present and look toward the future by taking account of the past. The 25th anniversary of the Harvard BlackLetter Law Journal is a momentous occasion. Generations of law students have worked, often late into the night, to produce a quality journal of race and law scholarship. Although in its early years the prospects for success may have seemed dim, BlackLetter has thrived.

The Journal’s 25th anniversary coincides with a landmark in American history: The election of Barack Obama as the 44th President of the United States of America.1 BlackLetter was founded in 1984, only a few years before Barack Obama entered Harvard Law School.

In this Essay, I consider the role of racism in American society through the lens of Obama’s victory, and, by extension, its implications for scholarship about race and law. The election of Barack Obama signifies a break with our racial past. It unsettles a longstanding cultural narrative—one oddly comforting in its familiarity—in which racism looms as the central and often unyielding impediment to black advancement. Obama’s triumph does not, as some pundits have suggested, herald a post-racial era, if by that one means a society in which race is no longer meaningful. Race remains salient and racial inequalities are too entrenched and pervasive to ignore. But one need not indulge the fantasy that we have transcended race in order to acknowledge that the role of racism in American society has shifted.

From Dred Scott to Barack Obama: The Ebb and Flow of Race Jurisprudence

Oct 29, 2010 by Journal

By Charles J. Ogletree, Jr

The Harvard Law School Blackletter Law Journal, affectionately known as BLJ, celebrates its 25th anniversary this year. The BLJ has much to celebrate. During its life span, Harvard Law School and the country as a whole have made great strides in advancing civil rights and racial equality. During this past monumental year alone, Barack Obama, a Harvard Law School graduate and the first African American President of the prestigious Harvard Law Review, became the 44th President of the
United States and the first African American to be elected to the nation’s highest office. President Obama has appointed Eric Holder as the first African American Attorney General of the United States, as well as Elena Kagan, the first woman to serve as Dean of Harvard Law School, as the first female Solicitor General of the United States. BLJ has been an important part of this national transformation.

Yet, for all of the progress achieved, I am not persuaded that, as some have argued, we have entered into a “post-racial” America. Rather, in this foreword, written in honor of BLS’s 25th anniversary, I hope to illustrate how, over the last 150 years, progress in advancing racial equality in the United States has ebbed and flowed. All too often, significant forward motion is followed by a dramatic backward lurch. This pattern is particularly evident when examining major legal decisions pertaining to race
rendered by the Supreme Court since the Dred Scott decision of 1857. Each decision, along with related developments and events that shaped our nation’s discourse and attitudes about race, provides us with a foundation upon which to develop a strategy for addressing racial diversity and jurisprudence in the future.

Editor’s Welcome to Volume 25

Oct 29, 2010 by Journal

Hello, and welcome to volume 25 of the Harvard BlackLetter Law Journal. Our anniversary edition comes on the heels of the election of the first black President of the United States, Barack Obama, during an era not unlike the Great Depression, when competence and efficiency are crucial. The joy of President Obama’s accomplishment is tempered by the recognition that the work of advocates for civil rights and equality is far from over. The election and the current affairs of status minorities in the U.S.
necessitated a review of the Journal’s role and relevance in light of such global change.

For a quarter of a century, the Journal that began as a newsletter publication of the Black Law Students Association, has promoted a conscientious and honest dialogue on issues of race, class and other status minorities in the law, through publishing articles by academics, practitioners, and students. In spite of progress made in the area of race relations, the Journal must double its efforts, while refocusing its mission as a catalyst and platform for social advocacy.

This volume confronts the issue of “post-racialism” in America, directly in the anniversary forewords by the Journal’s faculty advisors, Professors Banks and Ogletree; while the volume’s articles reflect on the growing obligations of legal professionals, academics, and others in this new era. It has been an honor to work with terrific, patient authors, editorial board members and staff this year. As the responsibilities of advocates for social change continue to grow, the Journal will conterminously serve as an
open forum for discussing how the law can be used to promote justice, fairness, and equal opportunity. The election of the first black President makes these ends seem more tangible and accessible – we should not hold back now!

Sincerely,
Jay A. Osha
Editor in Chief, BLJ Volume 25