Building a Race Law Canon

Rachel F. Moran, University of California, Berkeley, School of Law; University of California, Irvine, Law School, and Devon W. Carbado, University of California, Los Angeles, Law School, have published Introduction: The Story of Law and American Racial Consciousness--Building a Canon One Case at a Time, in Race Law Stories (2008).

Here is the abstract.

This introduction explains the difficulties of consolidating a race law canon due to our nation’s general ambivalence about the significance of race. There is a tendency to treat racial injustice as an aberration or an accident in an otherwise democratic system. Transgressions are relegated to the past and sharply contrasted with the contemporary practice of rendering race a biological irrelevancy. These ideological commitments make it hard to conceive of race law in anything but an ephemeral way. That is, once upon a time, there was an anti-canon of race comprised of deplorable decisions like Dred Scott v. Sandford and Plessy v. Ferguson, then there were canonical cases like Brown v. Board of Education and Loving v. Virginia that countered these injustices, but now corrective justice has been done and these concerns are largely the stuff of history.

As the introduction makes clear, Race Law Cases rejects these assumptions and invites a dialogue about how to build a race law canon one case at a time. The process begins by recognizing that the collective narrative of law and American racial consciousness is decidedly multiracial, plays itself out across a number of doctrinal contexts, and reflects moments of both inequality and equality. This narrative is inextricably linked to the nation-building process as well as to the lives of individuals, many of whom were pushing back against racial injustices in particular historical moments. To understand these dynamics in the richly textured way necessary to build a canon, context is critical, the kind of context that comes from telling the stories behind both famous cases and hidden gems. The hope is that these stories will help in rethinking assumptions about the role of race in public and private conversations about equality, liberty, and national identity. At the same time, the accounts will pay homage to the contributions of individuals, whether lionized or little-known, who brought these issues to life by daring to question the conventional wisdom about America’s commitment to its most fundamental democratic values.

Download the chapter from SSRN here.