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Excerpted From: Peter H. Huang, Resistance Is Not Futile: Challenging AAPI Hate, 28 William and Mary Journal of Race, Gender, and Social Justice 261 (Winter, 2022) (480 Footnotes) (Full Document)


PeterHHuangThe United States is facing three fundamental race and ethnicity-related crossroads: first, the mainstreaming into American consciousness during the summer of 2020 of the Black Lives Matter (BLM) political and social movement after the May 25, 2020, murder of African-American George Perry Floyd Jr. by a Minneapolis police department officer; second, a southwestern border immigration crisis and the “surge in undocumented migrant children arriving at the U.S.-Mexico border”; and third, and the focus of this Article, the resurgence of AAPI hate, explicit bias, explicit racism, and violence during the COVID-19 pandemic.

This Article analyzes: AAPI hate, that this Article defines as explicit negative bias in racial beliefs; and explicit racism, that this Article defines as racism based on hate. This Article advocates these three ways to resist AAPI hate and explicit racism: positive racial education and mindfulness, positive racial conversations and communications, and positive associations, cultures, and norms.

This Article stands in solidarity with the fictional United Federation of Planets (henceforth the Federation) in opposition to a well-known phrase from the Star Trek: The Next Generation television series, “Resistance is futile.” This phrase is “part of the standard message” the Borg broadcast upon coming into contact with others the Borg “intend to assimilate into their collective.” The complete message the Borg broadcast is: “We are the Borg. Lower your shields and surrender your ships. We will add your biological and technological distinctiveness to our own. Your culture will adapt to service us. Resistance is futile.” The Borg are recurring adversaries of the Federation in the fictional Star Trek universe, appearing in twenty-one episodes of the Star Trek franchise, including Star Trek: Enterprise and Star Trek: Voyager, in addition to the movie Star Trek: First Contact and the new streaming only series, Star Trek: Picard. The Borg, partly artificial and partly organic beings, believe they have the right to and should assimilate all other life forms.

The rest of this introduction offers an overview of this Article and also recounts the personal and intellectual genesis of this Article. Part I analyzes racial beliefs, biases, and AAPI hate. Part II analyzes how and why explicit racism is wrong. Part III analyzes novel economic theories of subjective beliefs, including belief-based utility, deliberate ignorance, and hate. Part IV analyzes the law and economics of hate crime laws and quasi-markets for explicit racism. Part V advocates three ways to resist AAPI hate.

The genesis of this Article was in the summer of 2020, in the midst of the very large public protests over George Floyd's killing, my partner asked this, perhaps rhetorical, question: why don't you research and then write a law review article about whether and how law can solve racism? Although she may have been joking, I took her literally and very seriously. I had this immediate response to her prescient question: Martin Luther King, Jr. famously said,

Now the other myth that gets around is the idea that legislation cannot really solve the problem and that it has no great role to play in this period of social change because you've got to change the heart and you can't change the heart through legislation. You can't legislate morals. The job must be done through education and religion. Well, there's half-truth involved here. Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also .... So there is a need for executive orders. There is a need for judicial decrees. There is a need for civil rights legislation on the local scale within states and on the national scale from the federal government.

My partner pressed me for details on how laws address racism. Her persistence led me to think about whether and in what precise sense racism is like a mathematics problem that can be solved or can be proven to be impossible to solve. These thoughts led to a trilogy of law review articles, of which this is the one which finally answers her simple to ask and complex to answer question.

My conceptual breakthrough is to think about hate in terms of negatively biased, not noisy enough, subjective probability beliefs. Racism and racist are contentious words, probability beliefs not so much. A mathematical mindset suggests changing probability beliefs. Such a transformation can be represented by a belief learning function mapping a simplex into itself. For those who are familiar with mathematical economics, in particular game theory and general economic equilibrium theory, the simplex is a familiar set because it also is the domain of Nash equilibrium mixed strategies and related to a unit simplex of canonical Arrow-Debreu competitive market equilibrium normalized price vectors.

This Article approaches hate from the perspective of an AAPI seeing the recent resurgence in AAPI hate. This Article also is based on the seminal work of my Ph.D. thesis' principal advisor, polymath economic theorist, and 1972 economics Nobel laureate, Kenneth J. Arrow, about information economics, organization economics, mathematical economic models of racial discrimination, and “the scope and limits of ordinary economic analysis for understanding racial discrimination even in markets.”

Intellectually, this Article applies concepts, frameworks, and ideas from economics, law, cognitive and social psychology, cognitive and social neuroscience, mindfulness, and statistical decision theory to reframe, rethink, and resolve a central and thorny problem in human history: namely, that of racial hate. This Article introduces a mathematical and precise language to address, discuss, and think about pragmatic and transformative approaches to challenge hate by changing people's racial beliefs.

The observation that hate stems from certain racial probability beliefs does not imply change is easy or simple. Think of people who hold beliefs that COVID-19 is fake, or COVID-19 vaccines are part of a government conspiracy. Changing beliefs is difficult and complicated if people do not desire to change their beliefs. There is a relevant riddle: how many therapists does it take to change a light bulb? Just one, and only if the light bulb wants to change.

Practically, this Article draws on firsthand experiences with, recollections of family members about, stories of friends involving, and the documented, long history and recent resurgence of AAPI hate. Personally, this Article is the product of my earnest desire and wish to do something helpful and positive about resisting AAPI hate. Before the age of COVID-19 fueled AAPI hate, I downplayed AAPI hate. Tragic recent events have rendered such a position as naïve, unrealistic, and untenable.

Other AAPIs have been moved to take other actions, including encouraging the next generation of AAPIs to be politically active, organized, supportive of businesses owned by AAPIs and other People of Color, and a voter. Some influential and wealthy AAPI business leaders have pledged and raised $250 million to create a new Asian American foundation to challenge anti-AAPI discrimination, collect data to inform policymakers, and redesign school curricula to accurately convey the role of AAPIs in U.S. history.

This Article does not follow the current, fashionable trend of emphasizing and focusing on current institutional, structural, and systemic racism due to a long history of implicit bias and implicit racism that still are present in the United States. Instead, this Article analyzes the roots, consequences, and responses to AAPI hate that still are present in today's United States. Explicit racial hate has caused way too much damage, harm, injury, pain, suffering, and violence for far too long in the history of humanity and the United States. The analysis in this Article should also be applicable to challenge and resist explicit sexism, anti-LGBTQ+-ism, audism, ableism, ageism, weightism, classism, and human or even carbon-based speciesism.

[. . .]

This Article analyzes how to challenge AAPI hate by reducing anxiety, fear, greed, and perhaps deliberate ignorance. In the spirit of much current research in behavioral economics and other behavioral sciences, this Article focuses on how to help individuals change their racial beliefs by overcoming possible resistance to such change. This Article focuses on changing individuals' explicit racial beliefs.

This Article is premised on an evidence-based, optimistic, underlying belief, namely that because of adult human neuroplasticity, individuals who have learned to possess hateful, negatively biased racial beliefs can also unlearn such explicit bias and explicit racism and can learn instead compassionate, empathetic racial beliefs. This Article advocates these strategies to resist AAPI hate: positive racial education and mindfulness, positive racial conversations and communications, and positive associations, cultures, and norms. All of these interventions aim to change people's racial beliefs from hateful, negatively biased ones to compassionate and empathetic ones. Law has many possible roles to play in resisting AAPI hate. Frank Wu cogently observed: legal change is necessary, not sufficient. Law can foster, encourage, and incentivize the above positive racial interventions to help change people's racial beliefs, and in doing so, change people's hearts and minds about race.

Humans all too easily form tribes of in-groups and out-groups or haves and have nots. Division of people based on skin color, eye color, class, socio-economic status, age, weight, sexual orientation, education and anything else is very easy to do. In lieu of the currently fashionable and typical focus on strengthening federal and state hate crime legislation, this Article advocates legal policies to encourage and foster positive racial education and mindfulness, positive racial conversation and communications, and positive racial associations, cultures, and norms.

This Article is written in the spirit of hope and under the good, old-fashioned American belief that a nation of people united can accomplish such amazing achievements as landing people on the moon and bringing them back safely. The U.S. moon landing is often hailed as proof that Americans can do anything if we put our minds to it. That technological feat obviously required the shared belief of many individuals that something never done before could be accomplished, and in a decade no less. The Apple TV+ streaming service's science fiction television series, For All Mankind, dramatically imagines an alternate reality of world history in which the Soviet Union had landed men on the moon before the United States. In our current version of world history, the United States won the space race because of greater funding levels and better organization. Perhaps, the current U.S. people and their elected leadership can and should proclaim a national goal to engage in the next decade the issues of racial hate. What if we commit sufficient resources to fund policies to encourage and foster positive racial education and mindfulness, positive racial conversations and communications, positive racial associations, cultures, and norms? It is my sincere hope that we make it so and leave a less polarized and more united country for the next generation of Americans.

Professor and Laurence W. DeMuth Chair of Business Law, University of Colorado Law School, JD, Stanford Law School; PhD, Harvard University; AB, Princeton University.

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