Creating Racial Identity In Early New Orleans

Kenneth R. Aslakson, Associate Professor of History at Union College, has published Making Race in the Courtroom: The Legal Construction of Three Races In Early New Orleans (NYU Press). Here is a description of the book's contents from the publisher's website.

No American city’s history better illustrates both the possibilities for alternative racial models and the role of the law in shaping racial identity than New Orleans, Louisiana, which prior to the Civil War was home to America’s most privileged community of people of African descent. In the eyes of the law, New Orleans’s free people of color did not belong to the same race as enslaved Africans and African-Americans. While slaves were “negroes,” free people of color were gens de couleur libre, creoles of color, or simply creoles. New Orleans’s creoles of color remained legally and culturally distinct from “negroes” throughout most of the nineteenth century until state mandated segregation lumped together descendants of slaves with descendants of free people of color.

 

Much of the recent scholarship on New Orleans examines what race relations in the antebellum period looked as well as why antebellum Louisiana’s gens de couleur enjoyed rights and privileges denied to free blacks throughout most of the United States. This book, however, is less concerned with the what and why questions than with how people of color, acting within institutions of power, shaped those institutions in ways beyond their control. As its title suggests, Making Race in the Courtroom argues that race is best understood not as a category, but as a process. It seeks to demonstrate the role of free people of African-descent, interacting within the courts, in this process.

Looking At Asian American Culture and Racial Classification

Jennifer Ann Ho (University of North Carolina, Chapel Hill) has published Racial Ambiguity in Asian American Culture (Rutgers University Press, May 2015). Here is a description of the contents from the publisher's website.

The sheer diversity of the Asian American populace makes them an ambiguous racial category. Indeed, the 2010 U.S. Census lists twenty-four Asian-ethnic groups, lumping together under one heading people with dramatically different historical backgrounds and cultures. In Racial Ambiguity in Asian American Culture, Jennifer Ann Ho shines a light on the hybrid and indeterminate aspects of race, revealing ambiguity to be paramount to a more nuanced understanding both of race and of what it means to be Asian American. 

Exploring a variety of subjects and cultural artifacts, Ho reveals how Asian American subjects evince a deep racial ambiguity that unmoors the concept of race from any fixed or finite understanding. For example, the book examines the racial ambiguity of Japanese American nisei Yoshiko Nakamura deLeon, who during World War II underwent an abrupt transition from being an enemy alien to an assimilating American, via the Mixed Marriage Policy of 1942. It looks at the blogs of Korean, Taiwanese, and Vietnamese Americans who were adopted as children by white American families and have conflicted feelings about their “honorary white” status. And it discusses Tiger Woods, the most famous mixed-race Asian American, whose description of himself as “Cablinasian”—reflecting his background as Black, Asian, Caucasian, and Native American—perfectly captures the ambiguity of racial classifications.   

Race is an abstraction that we treat as concrete, a construct that reflects only our desires, fears, and anxieties. Jennifer Ho demonstrates in Racial Ambiguity in Asian American Culture that seeing race as ambiguous puts us one step closer to a potential antidote to racism. 

The Meaning of "Uncle Tomism"

Brando Simeo Starkey has published Uncle Tom & Social Norms: Improving Legal Interests and Affecting Public Policy: Introduction. Here is the abstract.

My thesis is that the management of “constructive” social norms to police racial loyalty, by helping forge solidarity, can aid blacks in promoting their legal interests and ability to affect public policy. This is observable by following the life of Uncle Tom. A person, in other words, is called an Uncle Tom when he or she violates a racial loyalty norm that actually exists or that the speaker wants to exist. This signals to the rest of the black community to conform or else. That is, the real power of Uncle Tom as a sanctioning device is the deterrent effect it has on the broader group. Shadowing Uncle Tom through black history helps us to understand where and how these norms were constructed, disseminated, applied, and enforced. From there, we can assess the propriety of these norms.

Download the paper from SSRN at the link. 

Was Thomas Jefferson the Father of Sally Hemings' Children?

It's back. The "it" is the debate over Thomas Jefferson's relationship with Sally Hemings and whether he fathered her children. At the Chronicle of Higher Education's blog Innovations, Peter Wood discusses a new publication, The Jefferson-Hemings Controversy: Report of the Scholars Commission, and its conclusions. The thirteen scholars involved have scoured the evidence, and, after one year of study, twelve conclude that "honorable people can and do disagree" about whether Mr. Jefferson fathered Ms. Hemings' children. "The allegation is by no means proven." The twelve scholarly jurors deliver their verdict: from skepticsm about Mr. Jefferson's paternity to "almost certainly" that he was not the father.

One scholar contributed a minority report. His assessment? "More likely than not."

The Jefferson-Hemings Controversy is available from Carolina Academic Press. Here from CAP's website is the abstract describing the book.

In 2000, the newly formed Thomas Jefferson Heritage Society asked a group of more than a dozen senior scholars from across the country to carefully examine all of the evidence for and against the allegations that Thomas Jefferson fathered one or more children by Sally Hemings, one of his slaves, and to issue a public report. In April 2001, after a year of study, the Scholars Commission issued the most detailed report to date on the issue.

With but a single mild dissent, the views of the distinguished panel ranged from "serious skepticism" to a conviction that the allegation was "almost certainly false." This volume, edited by Scholars Commission Chairman Robert F. Turner, includes the "Final Report"—essentially a summary of arguments and conclusions—as it was released to the press on April 12, 2001. However, several of the statements of individual views—which collectively total several hundred carefully footnoted pages and constitute the bulk of the book—have been updated and expanded to reflect new insights or evidence since the report was initially released.

(Full disclosure: I have published several titles with CAP as a contributor and/or editor).

More about Thomas Jefferson and Sally Hemings at these sites:

Thomas Jefferson: Monticello

Jefferson's Blood (PBS) 

France, the United States, and Coming to Terms With Slavery

Ariela J. Gross, University of Southern California Law School, has published All Born to Freedom? Comparing the Law and Politics of Race and the Memory of Slavery in the U.S. and France Today as USC Legal Studies Research Paper No. 11-18. Here is the abstract.

Both the United States and France have seen a burgeoning of memorialization of slavery and abolition in recent years, and France has even passed a memorial law declaring slavery a crime against humanity. This Essay compares law, racial politics, and the memory of slavery in two nations trying to come to terms with their slave pasts. Despite important differences in their histories and civil rights regimes, I argue that in both France and the U.S., movements that oppose race-conscious law portray slavery as part of the deep past, and a generalized past detached from race, whereas those seeking some form of recognition or reparation emphasize that slavery is “not even past.” In both countries, the originary revolutionary moment – in France, associated with the Declaration of the Rights of Man, and in the U.S. with the 1787 Constitution – is invoked to create a sense of the timeless continuity of the principle of colorblindness, with slavery (and race-conscious legal remedies today) temporary deviations.

Download the paper from SSRN at the link.

Language and Evidence of Race Discrimination

Dawn D. Bennett-Alexander, University of Georgia, has published The Use of the Term 'Boy' as Evidence of Race Discrimination: Apparently the 11th Circuit Didn't Get the Memo? Here is the abstract.

In an unusual and interesting case, the 11th Circuit decision was appealed to the U.S. Supreme Court, the Supreme Court rendered a decision remanding the case with guidance, and upon remand, the 11th Circuit virtually ignored the Court's guidance and went its own way. The Supreme Court determined that the term "boy," when used in referring to an adult African American male, can, under certain circumstances, be evidence of race discrimination. Despite the evidence, the 11th Circuit on remand did not find such circumstances to be present in this case. The decision is not only peculiar in its decision to give only lip service to the Supreme Court's guidance, but also in its staunch refusal to recognize the vestiges of the stark historical realities of the three southern states within the circuit.

Download the paper from SSRN at the link.

The Face of Murder

The flap over showrunner Brian True-May's remarks concerning the whiteness of the hit show Midsomer Murders shows no sign of abating; indeed, it has spilled over to comments from stars of other shows concerning whether a TV drama ought to reflect reality.

What did Mr. True-May say about the lack of non-white faces on Midsomer Murders? In part, "We just don't have ethnic minorities involved. Because it wouldn't be the English village with them." What he seems to have meant is the the "perfect English village" at least in imagination is completely white--no minorities exist at all. Broadcaster ITV was so taken aback that it suspended Mr. True-May, effective immediately. Criticism poured in, aimed not just at Mr. True-May's lack of sensitivity to the realities of contemporary British society, but at the fact that while he does not allow four-letter words or the actual depiction of violence in his scripts, he does allow viewers to imagine violence, and all sorts of horrific crimes actually do go in the quiet imaginary English village of Causton and the other villages around it. Incest, murders of all kinds using every kind of implement or manner, sexual deviance of nearly every kind pops up on Midsomer Murders. While Mr. True-May and the other creators of the show certainly have a right to express themselves, and everyone agrees that the show is fiction, not reality, the critics argue, to suggest that only white people live in it is to propound a fiction so divorced from reality as to be unimaginable, especially when the crimes that go on in the show are actually usually very imaginable. (Unfortunately).

Reporters have been checking out the actual area in which the show films, and note that minorities actually do live in the area. Apparently the show doesn't hire them as extras, perhaps on the theory that the actual area doesn't represent Causton or its fictional county. Well, it's true: Causton is imaginary, like Agatha Christie's St. Mary Mead. But Mrs. Christie wrote decades ago, but she actually included ethnic minorities in her work--quite a lot of them. One might not like her portrayals, or her allusions--the original British title of And Then There Were None was actually something quite different. But one can find them in her work. Again, if one supports the notion that Mr. True-May can create whatever imaginary venue he wants, and that venue has only Caucausians in it, then of course Midsomer County could exist and Mr. True-May's vision is as "true" as any other.

Mr. True-May may have specific reasons for not hiring ethnic minorities for the show, including the ones he gives. If he really doesn't cast ethnic minorities because he thinks the viewing audience won't accept them, then that's a shame. But is it so clear that the Midsomer Murders viewing audience would wander away if ethnic minorities turned up among the cast? I'd suggest lack of ethnic minorities isn't necessarily the reason for the show's success. Granted, I don't live in the UK, but I watch the show regularly, and I'd suggest these reasons as some of those for its popularity. One is predictability. In every episode the show provides a murder. It's titillating, it's more or less gruesome, it's puzzling. It provides interesting characters. Another is safety. Whatever the murder(s) is/are they are "safe," because Causton and their surroundings are imaginary, and the whole thing will be wrapped up by reliable officers who are smart, likeable, and trustworthy. A third is comfort, or one might say "reliability." The bad people get caught. Justice is served and the officers serve that justice while staying within the bounds of the law. What could be sweeter, or more comforting? At the end of the day, after the world's problems overwhelm us, what could be more satisfying than to settle into the knowledge that we can return to a well known realm in which we can have complete faith in the honesty, intelligence and reliability of cops who will carry out both the spirit and the letter of the law and who will catch the bad people? Yes, we know it's all fiction, but it's comforting fiction. Most viewers tend to like the popular culture depiction of law when it coincides with justice. But do they really require that it be a particular color of justice?

Whether recurring characters are ethnic or not, when they are intelligent, likeable and sure to get their man or woman, the writing is smart,  and the events not too graphic, an audience will ask for more of the same. To that extent, the success of Midsomer Murders isn't that much of a mystery. If Mr. True-May adds some non-white faces to the cast, for example a couple of recurring characters with whom the audience can fall in love,  he might be surprised at the outcome.

Hollywood and Ethnicity on Film

Tung Yin, Lewis & Clark Law School, has published Through a Screen Darkly: Hollywood as a Measure of Discrimination Against Arabs and Muslims, in volume 2 of the Duke Forum for Law and Social Change (2010), which was presented at a symposium at Duke Law School on "The New Face of Discrimination: Muslim in America." Here is the abstract.

In this essay, which was prepared for the Duke Forum for Law and Social Change’s “The New Face of Discrimination: Muslim in America,” I compare Hollywood’s depiction of Arabs and Muslims in terrorism thrillers before and after the 9/11 attacks. The goal of this comparison is to see whether the increased awareness of Arab and Muslim culture since 9/11 has changed the way that Hollywood depicts Arab and Muslim characters in such television shows and movies. I chose Hollywood as the focus because popular culture both reflects and shapes public attitudes. I reach three conclusions: (1) although 9/11 led to an increase in Arab characters, Arab-American actors have not benefited, perhaps an indication of the problematic depictions of such characters; (2) Hollywood has moved toward creating Arab-American counterterrorism agents, but these characters typically play minor roles that understate the key roles played by some (of the few) real-life Arab-American agents; and (3) the new “sleeper cell” characters – seemingly normal Arab-American characters who secretly plan and execute terrorism plots – who are a post-9/11 development, for the most part overstate the nature of the Arab-Americans who have been prosecuted for terrorism-related offenses in this country.

Download the article from SSRN at the link.

Racial Representation in Film

Cynthia D. Bond, John Marshall Law School, has published Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film , at 11 Texas Review of Entertainment & Sports Law 219 (2010). Here is the abstract.

Within hours of the soul-stirring and nation-lifting election of Barack Obama as president, journalists and pundits were announcing the demise of all prior notions of race in America. Even during the campaign itself, narratives of a "post-racial" America were bandied about. But the historic nature of Obama’s ascendance does not obliterate or transcend the vast history of race and racial representation in America. The representational techniques of the construction of both law and race in popular film are deeply interdependent. Both law and film are story-telling, narrative systems. Race is also a narrative system in which visual representation is key. The significance of the visual apprehension of race is deeply relevant to the legal construction of race as well. (For example, in early citizenship cases and racial “passing” cases which persisted through the latter part of the 20th century.) Since society constructs racial categories in large part by visual identification and experience, all visual media, including film, necessarily participate in the constitution of race. Thus, films do not simply depict supposedly free-standing, objective, racial categories naturalized by the dominant discourse, but instead actually participate in the creation of race. As part of standard Hollywood practice, the mainstream film audience is constructed through identification with a norm of “whiteness.” Since that audience, when viewing a law film, is actively involved in constituting the law as part of its spectatorship, it follows that mainstream films construct law from the perspective of white privilege. The consequences and effects of this cinematic construction of law are many. This article discusses three main effects: 1) the raced construction of the lawyer-hero; 2) the denial or displacement of the law’s role in constructing race and race-based discrimination; and 3) the suppression or revision of politics and political history.

Download the article from SSRN at the link.

Hollywood and the Rhetoric of Race

Cynthia D. Bond, The John Marshall Law School, has published Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film, at 11 Texas Review of Entertainment & Sports Law 219 (2010). Here is the abstract.

Within hours of the soul-stirring and nation-lifting election of Barack Obama as president, journalists and pundits were announcing the demise of all prior notions of race in America. Even during the campaign itself, narratives of a "post-racial" America were bandied about. But the historic nature of Obama’s ascendance does not obliterate or transcend the vast history of race and racial representation in America. The representational techniques of the construction of both law and race in popular film are deeply interdependent. Both law and film are story-telling, narrative systems. Race is also a narrative system in which visual representation is key. The significance of the visual apprehension of race is deeply relevant to the legal construction of race as well. (For example, in early citizenship cases and racial “passing” cases which persisted through the latter part of the 20th century.) Since society constructs racial categories in large part by visual identification and experience, all visual media, including film, necessarily participate in the constitution of race. Thus, films do not simply depict supposedly free-standing, objective, racial categories naturalized by the dominant discourse, but instead actually participate in the creation of race. As part of standard Hollywood practice, the mainstream film audience is constructed through identification with a norm of “whiteness.” Since that audience, when viewing a law film, is actively involved in constituting the law as part of its spectatorship, it follows that mainstream films construct law from the perspective of white privilege. The consequences and effects of this cinematic construction of law are many. This article discusses three main effects: 1) the raced construction of the lawyer-hero; 2) the denial or displacement of the law’s role in constructing race and race-based discrimination; and 3) the suppression or revision of politics and political history.

Download the article from SSRN at the link.

Race and Legal History at the University of Texas

Thomas D. Russell, University of Denver College of Law, has published ‘Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls’: The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999, as University of Denver Legal Studies Research Paper No. 10-14. Here is the abstract.

The paper’s title is a quotation from The University of Texas registrar nine days after the decision in Brown v. Board of Education. This paper examines 20th-century techniques of racial domination at The University of Texas by crosscutting two narratives.

The first narrative that the paper presents is one of the development of bureaucratic or institutional forms of racial exclusion. The paper describes the university’s efforts to limit the application of the Brown v. Board of Education.

In the immediate years after the United States Supreme Court’s decision in Brown v. Board of Education, The University of Texas developed and instituted entrance exams that university officials knew would exclude a disproportionate number of African-American applicants. Publicly, the university presented the testing as race-neutral. The university stalled post-Brown integration until the exclusionary admissions testing was in place.

An explicit concern of the university in seeking to exclude African-American students during the 1950s was a racialized sexual concern about the university’s white women.

The second narrative is the story of William Stewart Simkins, a law professor at The University of Texas from 1899 to 1929. Professor Simkins helped to organize the Ku Klux Klan in Florida at the conclusion of the American Civil War, and he advocated his Klan past to Texas students.

Like the university registrar during the 1950s, Professor Simkins was explicitly concerned with the sexual defense of white women. Relying upon the analysis of historian Grace Elizabeth Hale, the paper links Professor Simkins’s advocacy of the Klan to the early 20th-century history of lynching and white supremacist violence.

During the 1950s, the memory and history of Professor Simkins supported the university’s resistance to integration. As the university faced pressure to admit African-American students, the university’s faculty council voted to name a dormitory after the Klansman and law professor. The dormitory carries his name to the present day. During this time period, alumni also presented the law school with a portrait of Professor Simkins. Portraits and a bust of Professor Simkins occupied prominent positions within the law school through the 1990s.

The sources for the paper are drawn largely from primary materials of the university’s archives, including the papers of the university’s Board of Regents, Chancellor, President, and faculty committees. The author completed this research during the 1990s while a member of The University of Texas School of Law faculty

.
Download the paper from SSRN at the link.

Update: Professor Russell notes coverage of the issue, and discussion of his work, in the Austin American-Statesman, here.

Adrienne Davis on Star Trek and Gran Torino

Adrienne D. Davis has published Film Review: Masculinity & Interracial Intimacy in 'Star Trek' and 'Gran Torino', as Washington University School of Law Working Paper No. 10-03-07. Here is the abstract.

Race has long been a central object of political reflection. The salience of racial difference remains hotly debated, figuring in both “utopian” and “dystopian” visions of America’s political future. If race is a primary configuration of “difference” and inequality in the nation, then intimacy between the races is often construed as either a bellwether of equality and political utopia or a re-inscribing of political dominance, typically represented as sexual predation by men against women. Quite expectedly, these political fantasies and fears are often played out at the multiplex, and we can see them in stark relief in two recent films that seem to have nothing in common, Clint Eastwood’s highly acclaimed but Oscar-snubbed Gran Torino and last summer’s high-octane blockbuster, Star Trek. This film review explores how both films render conventional (white) masculinity as in crisis, threatened by alternative masculine forms. In both films this crisis of masculinity translates into a political one that threatens the values and viability of the community. In both, a carefully negotiated interracial intimacy redeems masculinity, and, in the process, the political future. While interracial intimacy is often configured as heterosexual coupling, in both films, women of color expedite interracial intimacy, but the meaningful and redemptive intimacy is homo-social, between men.

Download the paper from SSRN at the link.

Interracial Relationships

Jason Gillmer, Texas Wesleyan University School of Law, has published "Telling Stories of Love, Sex, and Race." Here is the abstract.

The history of interracial sex is often told from the perspective of either legislatures or lynch mobs. The approach has a certain appeal; it allows us to track the ideological currents of the dominant society, as they ebb and flow from passive acceptance of the practice to outright hostility. But the approach also minimizes the role of the participants, routinely casting them as unimportant players in the overall history of sex and race in this country. In this book chapter, I look at the subject of interracial intimacy from the perspective of the people involved: one story involves a white man and black woman from slavery times, and the other involves a black man and white woman from the turn of the century. The purpose is to add some depth and detail to our understanding of some of these relationships, in the process upending some of our basic assumptions about what they might have been like. Indeed, by shining a light on individual cases, we begin to appreciate both the contradictions and complexities of interracial unions, breathing life into a portion of history too often left untold.

Download the paper from SSRN here.

Race, Property, and Gambling in Mark Twain

While I was looking for something else on SSRN, I came across this interesting paper by Naomi Reed.

Naomi Reed, Columbia University, The Wagers of Whiteness, The Wagers of Blackness Gambling and Race in Pudd'nhead Wilson . Here is the abstract.

"The Wagers of Whiteness, The Wagers of Blackness" analyzes the late nineteenth-century erosion of African Americans' newly acquired citizenship rights by turning to the relationship between gambling, property, and slavery in Mark Twain's Pudd'nhead Wilson (1894). Tom Driscoll's ever-present gambling debts turn him into a thief, and his thefts not only make him unfit to inherit the Driscoll fortune, but also ultimately unmask him as, in Twain's words, "a negro and a slave." Tom's thefts come to constitute blackness as the theft of whiteness, and the novel thus renders racial difference visible through property relationships. This connection prompts a reinterpretation of Plessy v. Ferguson specifically as a property claim: Homer Plessy argued that segregation deprived him of the property of his reputation of being a white man. Juxtaposing Plessy's denied property claim to the Supreme Court's commitment at the close of the nineteenth century to the protection of property rights, this paper shows how race remained articulated in and through a language of property even as biological discourses about racial difference came to the fore.

Download the paper from SSRN here.

Mildred Jeter Loving Dies

Mildred Loving, one of the parties in the landmark case Loving v. Virginia, has passed away. NPR has this audio story. Timothy Hutton and Lela Jeter starred in a made-for-television movie that dramatized the case, which made it to the Supreme Court in 1967. The film is available on DVD.

Bob Mondello's Piece on Guess Who's Coming to Dinner and the Supreme Court Case: Loving v. Virginia

National Public Radio's Bob Mondello did a feature piece June 12th devoted to the film Guess Who's Coming to Dinner as well as several other movies that explore the theme of race relations, on the anniversary of the Supreme Court case that struck down Virginia's statute against interracial marriage. The case was Loving v. Virginia (388 U.S. 1; 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LEXIS 1082 (1967)). Remember that Star Trek: The Original Series broke ground in the episode "Plato's Stepchildren" with television's first interracial kiss (aired November 22, 1968).

Race and the Movies

N. Jeremi Duru, Temple University School of Law, has published "Friday Night "Lite": How Deracialization in the Motion Picture Friday Night Lights Disserves the Movement to Eradicate Racial Discrimination From American Sport," in volume 25 of the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

Sport has a unique power to unite. The power of sport to unite, however, has unfortunately obscured the extent to which sport is beset with the sociological ills plaguing broader society. Indeed, there exists in contemporary America a widely-held belief that sport is a utopian realm immune to the issues of race with which society in general must grapple. This article examines this idyllic picture of sport and the extent to which, through suggesting an absence of discrimination, it frustrates much needed anti-discrimination efforts in the sporting community.

Decades after the United States Supreme Court issued its 1954 desegregation mandate in Brown v. Board of Education, Odessa, Texas - home to Permian High School - continued to struggle bitterly with racial discrimination and discord, so much so that in 1982 it was placed under a federal court order to effectuate the desegregation both promised and denied nearly thirty years earlier. As this article explores, the unfortunate result was an uneasy interaction among members of different races at Permian High School and in its vaunted football program, which led to substantial racial discord and discrimination reflective of vexatious issues plaguing American sport more broadly. Although these troubling issues at the intersection of race, law, and sport dominated the 1988 Permian football team's season and inspired a Pulitzer Prize winning author's investigative chronicle, Friday Night Lights, a 2004 motion picture of the same name purporting to tell the tale of that team radically de-racializes the story. This article argues that by recasting a true but disturbing story largely about the impact of race on interscholastic athletics into a highly fictionalized and de-racialized vehicle buttressing the idyllic picture, the motion picture Friday Night Lights disserves the movement to eradicate racial discrimination from American sport.

Download the entire Article from SSRN here.

[Cross posted to The Seamless Web]

Capers on Race and Justitia, the Symbol of Justice

Professor I. Bennett Capers has posted on SSRN an article, On Jusitita, Race, Gender, and Blindness, 12 Michigan J. of Race & Law 203 (2006):

If there is one image we associate with justice, it is of Justitia herself, blindfolded, balancing a scale in one hand, brandishing an unsheathed sword in the other. The image is so ubiquitous that we are often beyond noticing it. Late for court, late for class, or simply indifferent, we walk past it, barely glancing up.

This Essay – Justitia, Race, Gender, and Blindness – is about seeing Justitia and questioning how the image functions, both aesthetically and morally. Drawing upon law, literature, art history, and cultural studies, this Essay also problematizes Justitia. After all, what does it mean, connotatively and denotatively, for Justitia to be blind in a racialized society where color is so determinative? And conversely, what does it mean to fix a black gaze upon an image of justice that has been figured as white and female? The Essay contends that answering these questions is imperative for those of us who care about making our criminal justice system fairer, both in the way justice is meted out, and in our perception of justice.

Capers on Post-Colonial and Black Literary Theory and Legal Texts

Professor I. Bennett Capers (Hofstra Law School) has posted on SSRN the article, Reading Back, Reading Black, 35 Hofstra L. Rev. 101 (2007):

This essay builds on post-colonial theory and black literary theory to pose a pair of questions. If the reading of Western literature can be enriched by examining the great canonical texts through the lens of race, can a similar enrichment obtain from using a similar reading practice to read the law? Stanley Fish has argued that we each belong to interpretive communities, and that members of these communities are guided in their readings of texts by a common "consciousness," which produces interpretive "strategies [that] exist prior to the act of reading and therefore determine the shape of what is read." If this is true, what does it mean for the study of law to have a community of black readers?

This essay engages these questions and attempts to describe a reading practice of reading black. To illustrate the reading practice, the essay examines two cases that do not appear to be engaged in "race work" at all, The Queen v. Dudley & Stephens, and Muller v. Oregon. The essay demonstrates that far from diminishing these opinions—these grand narratives, these master texts—reading black reveals other layers, other meanings, and in the process deepens and widens our understanding not only of the holdings of these opinions, but also the how and why of them.