Tuesday, September 26, 2017

Gregory S. Parks and Shayne E. Jones

Abstracted from: Gregory S. Parks and Shayne E. Jones, "Nigger": a Critical Race Realist Analysis of the N-word Within Hate Crimes Law, 98 Journal of Criminal Law and Criminology 1305-1347, 1306-1310, 1344-1345 (2008) (290 footnotes omitted)



A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. -- Oliver Wendell Holmes

Although the slang epithet "nigger" may once have been in common usage . . . [it] has become particularly abusive and insulting . . . as it pertains to the American Negro. -- Louis H. Burke

[C]rimes motivated by bigotry usually arise not out of the pathological rantings and ravings of a few deviant types in organized hate groups, but out of the very mainstream of society. -- Jack Levin and Jack McDevitt

Critical Race Realism is neither a novel term nor a novel concept. As early as 1992 and as recently as 2005, legal scholars Derrick Bell and Emily Houh, respectively, propounded this idea. According to Bell, "Black people need reform of our civil rights strategies as badly as those in the law needed a new way to consider American jurisprudence prior to the advent of the Legal Realists . . . . Racial Realism . . . is a legal and social mechanism on which [B]lacks can rely to have their voice and outrage heard." For Houh, "critical race realism encompasses not only the goals and methodologies of the broader critical race . . . projects, but also some of the shared goals and methodologies of legal realism . . . ."

From our vantage point, Critical Race Realism is an amalgamation of Critical Race Theory and Legal Realism. As Critical Race Theory is the jurisprudential grandchild of Legal Realism, both share similarities, but are yet quite different. Critical Race Theory was founded as "a race-based, systematic critique of legal reasoning and legal institutions." Critical Race Theory was born out of the Critical Legal Studies movement. Not only did it take part of its name from the adherents of Critical Legal Studies (crits), it took part of its ideology from the crits as well. For one, critical race theorists are "critical," quite like crits, in that they engage in a version of "trashing"--a hallmark of the crits. In this approach, they (1) take legal arguments seriously in their own terms, (2) discover that the arguments are "foolish," and (3) look for some order in the "internally contradictory, incoherent chaos [they have] exposed." Critical Race Theorists do not endorse rights-trashing, like the crits. Nonetheless, both sets of scholars engage in a "full frontal assault" on modern jurisprudence. Earlier, the realists employed a similar technique called debunking. This entailed subjecting questionable judicial opinions to logical analysis in order to expose their inconsistencies, unsubstantiated premises, and tendency to "pass off contingent judgments as inexorable." Debunking flowed from two methods of attack: rule and fact skepticism. Rule skeptics argued that case decisions do not necessarily flow from general legal propositions--that logic did not govern judicial thought processes. Other features were argued to have factored into the equation, such as policy considerations. Fact skeptics either argued that the facts found by the judge or jury are inconsistent with the actual facts or that the reactions of judges and juries to facts are unpredictable.

Despite these similarities, Critical Race Theorists are arguably distinguished from the realists in that the latter, and not the former, made the synthesis of law and social science a hallmark of their agenda. The empirical exploits of Realists such as Charles E. Clark and William O. Douglas at Yale, Underhill Moore at Yale, and Walter Wheeler Cook and colleagues at Johns Hopkins are well-documented. Many of the Critical Race Theory founders were formerly active in the law and society movement, which had its roots with the realists. The crits, however, ultimately disagreed with their law and society colleagues on key issues. One issue that cleaved the crits from the law and society movement was the debate about the utility of empirical social science. In a 1977 article in the Law and Society Review, crit theorist David Trubek assailed empirical social science. First, Trubek suggested that empirical research legitimates the status quo in that it implies that facts researched were objectively "'there"' and "part of the permanent 'reality' of American culture." Second, he argued that a scholar could not separate ideology from methodology in any type of research, including empirical research. Ultimately, according to G. Edward White, Trubek argued that "to be politically reformist and methodologically neutral was a contradiction in terms."

There is a current effort afoot, however, which seeks to reconcile Critical Race Theory with other elements of its realist roots. As named by Bell and Houh, this movement is called Critical Race Realism. As articulated by the authors, Critical Race Realism situates itself within the growing contemporary attempts--such as empirical legal studies, the New Legal Realism Project, and Behavioral Realism--to integrate law and social science. Furthermore, its goal is to more systematically "enable and to compel law-making . . . to take more account . . . of the social facts upon which law must proceed and to which law must be applied." This Article applies Critical Race Realist methodology in an effort to analyze how the law should construe the N-word in potential hate crime cases. It does so by systematically assessing the usage of that word on the part of Whites who might justify their usage by arguing that they are immersed in certain elements of Black popular culture. In addition to this analytic technique, the Article imports empirical research on implicit social cognition into our understanding of hate crimes law. In so doing, this Article adds to the scant legal scholarship on the N-word.

Part II highlights a particular case in which a White person, who was allegedly immersed in Black culture, used the N-word during his assault of a Black man. Part III provides a general overview of U.S. hate crimes law and how racial epithets are traditionally viewed within this area of law. Part IV provides a brief historical and contemporary analysis of the N-word and how it has been and is understood. Part V makes two arguments in support of why, when the N-word is uttered in the context of a non-Black person committing a crime against a Black person, the crime should be construed as a hate crime. The first is that despite the proliferation of the N-word throughout Black popular culture, even Whites immersed in that culture generally do not use that word, especially when amongst Blacks they do not know very well. The second is that a remarkably large percentage of Whites harbor implicit and negative racial attitudes against Blacks. As such, a White person's utterance of the N-word while committing an act of violence or intimidation against a Black person may be seen as a leakage of these implicit racial biases. Part VI addresses why, despite Blacks' high rate of implicit anti-Black bias and more frequent use of the N-Word than Whites, the arguments we put forth about inter-racial hate crimes do not apply intra-racially among Blacks.

. . .

VII. Conclusion

The N-word has long been a controversial word, symbolic of White racial animus and hostility towards Blacks. A contemporary examination of the word, however, suggests a varied and complex understanding of it. Among Blacks, the word is not necessarily pejorative and may, at times, be either benign or a term of endearment. Noted Harvard Law School professor Randall Kennedy argued that, given this fact, Whites' usage of the word does not necessarily suggest racial animus within hate crimes jurisprudence. The error in this reasoning is twofold. A systematic analysis of Whites who are immersed in Black popular culture indicates that they do not routinely and publicly use the N-word. Furthermore, current research on implicit social cognition indicates that a majority of Whites harbor implicit anti-Black attitudes, and these attitudes are revealed within the context of hate crimes. Whites' usage of the N-word while committing inter-racial crimes is an example of the leakage of implicit biases against Blacks.

The distinction between a "regular" crime and a hate crime is the motivation of the perpetrator to select a victim based on their characteristics, such as race. Despite its key role in hate crimes, motivation can be difficult to prove. Moreover, because of the often implicit nature of anti-Black bias, one's motivation is not immediately apparent. Therefore, we must look to one's actions to see if there is evidence of racial animus. As we have argued throughout this Article, implicit anti-Black bias exists, and the use of the N-word among Whites is evidence of such bias. Thus, in the Minucci case, and contrary to the testimony offered in his defense, his use of the N-word while beating Glenn Moore provides evidence that Minucci's motivation was at least in part racially motivated. When the N-word is used by a White perpetrator in the context of committing a crime against a Black victim, this can, and should, be used as evidence that the crime was racially motivated.

This Article's findings fit within a growing corpus of legal scholarship that imports empirical, social, and cognitive psychological research about implicit racial bias into the law. This research demonstrates that models of "racism" predicated on overt and explicit indicia of racial animus are outdated. Many Whites either lie about, or lack adequate access to, their actual racial attitudes. Even when they are truly immersed in Black culture, such immersion, ironically, may amplify their subconscious biases, including anti-Black biases. Furthermore, despite the fact that liberals, who may be deemed to embrace Black culture more so than conservatives, have nearly twice the implicit pro-Black attitudes that conservatives do, the distinction between the two on levels of implicit anti-Black bias is negligible, with both above 60%. Thus, the work of social scientists and legal scholars in this area demonstrates that a contemporary and nuanced understanding of race bias has considerable implications for the law. And it should be such that gone are the days when a defendant's lack of explicit racial animus, or a court's ability to discern such, should dictate the outcome of a trial. Whether courts are grappling with Batson challenges, employment discrimination, affirmative action policies, or hate crimes, wherever race is implicated, research on implicit attitudes demonstrates that racial bias still exists and provides a new--and more fitting--mode of analysis.



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