Wednesday, January 05, 2022
A Current Kerfuffle
Within the legal academy, there is a striking controversy over an article penned by an elderly faculty member at the University of San Diego's Law School named Larry Alexander. He had been invited to write an article for the Law Review at Emory, but his submitted piece was rejected by the editors. Conservatives are upset, seeing it as a breach to reverse the invitation simply because the content of the piece is unpalatable to many.
In short, the article recites many familiar and well-worn responses to assertions of systemic racism in the United States: that really the problem is black culture and liberal policies, that the slaveowners are dead, etc. etc. You can read the whole piece here. And, if you don't have time for that, here is an excerpt:
Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S.,the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off.
People might be better off today had there been no slavery, but none of us, blacks included,
would be. So, the premise on which reparation for slavery is modeled is flawed. Reparations to victims’ descendants make sense only if those descendants existed at the time the wrong
was committed, such as the reparations paid by Germany after World War II.
would be. So, the premise on which reparation for slavery is modeled is flawed. Reparations to victims’ descendants make sense only if those descendants existed at the time the wrong
was committed, such as the reparations paid by Germany after World War II.
As readers here know, I disagree with all of this. I also am for publishing bad yet popular ideas, so they can be properly disparaged. (Note that I am not for publishing ALL bad takes, but just those ones that reflect a popular view and need rebuttal).
For people who deny that there is systemic racism in criminal law, I have a very simple response. It rests on three simple facts:
1) Some people in the United States carry within them implicit and explicit racism. Maybe it is just a small number-- say 10% (though I think it is much more than that).
2) The system of criminal justice leaves great and non-transparent discretion in the hands of police officers and prosecutors.
3) Because police officers and prosecutors are drawn from the larger society, some of them bring their implicit or explicit racism with them when they act within those areas of discretion. It is inherent within the system. Of a million people in criminal law, if 10% bear implicit or explicit racism, that is 100,000 actors making bad decisions.
