Beyond Supreme Court Anti-Discrimination: An Essay on Racial Subordinations, Racial Pleasures and Commodified Race

In recent years, the Supreme Court has narrowed its examination of racial subordinations to focus upon three doctrinal approaches: disparate treatment racial discrimination, the intent theory of racial discrimination, and suspect category strict scrutiny. Taken together, these three doctrines mutually reinforce racial discrimination as the only available legal understanding of racial subordination. Faced with the Court's ever contracting list of issues available for discussion, some scholars have chosen to investigate outside the Court's constricted understanding of race. This Essay begins by noting that racial subordinations—social subordinations premised on a schema of body types—are multiple and not limited to a single, narrow understanding. After introducing the Supreme Court's restrictive approach in Section I, I examine in Section II recent scholarship on racial subordination that has pressed beyond the doctrinal confines created by the Supreme Court. I review authors discussing Title VII, common law contract, racial tropes, implicit bias, patent law, and trademark. Section III examines Professor Anthony Farley's concept of racial pleasure—the idea that racial subordination gives pleasure to its participants. Racial pleasure is a form of racial subordination that falls outside of the Supreme Court's understanding of racial subordination as racial discrimination. Through the examination of race in computer games, I suggest two distinctions. I observe a legal distinction between racial pleasures and commodified racial pleasures, and a normative legal distinction between permitted racial pleasures and illicit racial pleasures. Section III ends with a proposed standard for constitutional review of state regulation of illicit racial pleasures. As another interpretation of racial subordination, Section IV proposes a theorization of commodified race through Marx' theory of commodity circulation

Afterword: The Race Question in LatCrit Theory and Asian American Jurisprudence

In the tradition of LatCrit Afterwords, Professors Chang and Gotanda take the liberty of raising questions that extend beyond the particular themes of this LatCrit Conference and the papers published in this Symposium. They return to two questions - ethnicity versus race and black exceptionalism - that were raised in early LatCrit Conferences but which have since been moved to the background. They ask what LatCrit Theory and Asian American Jurisprudence might teach us about minority on minority conflict and other ethno-racial fault lines. They present an analytic model to help understand commentaries on racial conflict and coalition. This model is organized around a loose historical and theoretical progression, beginning with first order binary analyses that focus on majority-minority relations; moving to second order binary analyses that focus on minority-minority relations; and then to third order multigroup analyses that examine the relationships among the majority and two or more minority groups. They then use this model to examine the comparative racialization projects in Asian American Jurisprudence. In Asian American Jurisprudence, they note that there have been explorations of both the racial and the ethnic and that in analysis of legal doctrine and legal materials, race is the dominant analytic mode. They suggest that the language of race may facilitate a comparative analysis around white supremacy that can provide a basis for coalition around a common platform of anti-racist politics. They speculate that despite the significant success LatCrit has had in fostering coalitions (within the Latina/o group and with others), LatCrit\u27s failure to address squarely those early questions and challenges may in time jeopardize this success. Also in the tradition of LatCrit Afterwords, Professors Chang and Gotanda end with more questions than answers but hope that their set of questions will provide useful guideposts during LatCrit\u27s second decade

The Race Question in LatCrit Theory and Asian American Jurisprudence

In the tradition of LatCrit Afterwords, Professors Chang and Gotanda take the liberty of raising questions that extend beyond the particular themes of this LatCrit Conference and the papers published in this Symposium. They return to two questions - ethnicity versus race and black exceptionalism - that were raised in early LatCrit Conferences but which have since been moved to the background. They ask what LatCrit Theory and Asian American Jurisprudence might teach us about minority on minority conflict and other ethno-racial fault lines. They present an analytic model to help understand commentaries on racial conflict and coalition. This model is organized around a loose historical and theoretical progression, beginning with first order binary analyses that focus on majority-minority relations; moving to second order binary analyses that focus on minority-minority relations; and then to third order multigroup analyses that examine the relationships among the majority and two or more minority groups. They then use this model to examine the comparative racialization projects in Asian American Jurisprudence. In Asian American Jurisprudence, they note that there have been explorations of both the racial and the ethnic and that in analysis of legal doctrine and legal materials, race is the dominant analytic mode. They suggest that the language of race may facilitate a comparative analysis around white supremacy that can provide a basis for coalition around a common platform of anti-racist politics. They speculate that despite the significant success LatCrit has had in fostering coalitions (within the Latina/o group and with others), LatCrit\u27s failure to address squarely those early questions and challenges may in time jeopardize this success. Also in the tradition of LatCrit Afterwords, Professors Chang and Gotanda end with more questions than answers but hope that their set of questions will provide useful guideposts during LatCrit\u27s second decade

Failure of the Color-Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of the California Civil Rights Initiate and finds ambiguous provisions which would not only eliminate affirmative action, but would prohibit ethnic and women\u27s studies programs throughout California\u27s educational system. The Article concludes by examining Justice Harlan\u27s famous dissent in Plessy v. Ferguson and observes that Harlan\u27s use of race color blindness supports continued white racial supremacy. Professor Gotanda calls for abandoning reactionary efforts to return to Harlan\u27s nineteenth century understanding and instead moving forward towards a truly just society

Critical Race Theory: The Key Writings That Formed the Movement

In the past few years, a new generation of progressive intellectuals has dramatically transformed how law, race, and racial power are understood and discussed in America. Questioning the old assumptions of both liberals and conservatives with respect to the goals and the means of traditional civil rights reform, critical race theorists have presented new paradigms for understanding racial injustice and new ways of seeing the links between race, gender, sexual orientation, and class. This reader, edited by the principal founders and leading theoreticians of the critical race theory movement, gathers together for the first time the movement\u27s most important essays.https://scholarship.law.columbia.edu/books/1100/thumbnail.jp

Critical Race Theory: The Key Writings That Formed the Movement

In the past few years, a new generation of progressive intellectuals has dramatically transformed how law, race, and racial power are understood and discussed in America. Questioning the old assumptions of both liberals and conservatives with respect to the goals and the means of traditional civil rights reform, critical race theorists have presented new paradigms for understanding racial injustice and new ways of seeing the links between race, gender, sexual orientation, and class. This reader, edited by the principal founders and leading theoreticians of the critical race theory movement, gathers together for the first time the movement\u27s most important essays.https://scholarship.law.columbia.edu/books/1100/thumbnail.jp