True Reparations

George Washington Law Review

Volumn 68, Issue 5-6, 2000, Pages 1021-1034

  Carter, W Burlette ^a  

^a NONE

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EID: 0034563381     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (67)

1. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
2. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
3. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
4. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
5. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
6. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
7. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
8. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
9. See, e.g., The Case for Reparations: Why, How Much, When?, EBONY, Aug. 2000, at 72 (including essays by Rep. Conyers and Randall Robinson). In every Congress since 1989 Representative Conyers has sponsored a bill, H.R. 40, calling for Congressional inquiry into the viability of reparations. See H.R. 40, 107th Cong. (2001); see also RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000). Legal scholars have also addressed the question of reparations for African Americans. See, e.g., Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BRIEF 3 (2000); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear it: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations? 40 B.C. L. REV. 429 (1998). For a broader discussion of reparations in this and other contexts see, e.g., Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999) (arguing that reparations paid shortly after misconduct occurs should alter laws so as to lower the likelihood of payment of future reparations; in contrast, compensation paid long after the wrongdoing has ended - as was the case for Japanese American internee reparations - is largely a political matter unlikely to encourage anticipatory behavior and best analyzed in terms of interest group power); Mari J. Matsuda, Looking to the Bottom; Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV. 471 (1998) (discussing federally approved reparations for unjustly incarcerated Japanese Americans and comparing their reparations struggle to that of African Americans).
10. See Cook, supra, text accompanying notes 9-10.
11. See id.
12. See W. Burlette Carter, Reconstructing Langdell, 32 GA. L. REV. 1, 133 (1997).
13. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
14. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
15. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
16. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
17. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
18. See Derrick A. Bell, Property Rights in Whiteness - Their Legacy, Their Economic Costs, in CRITICAL RACE THEORY, THE CUTTING EDGE at 75-83 (1995); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710-11 (1997) (expanding upon Bell's description). White writers have also written on the related topic of whiteness as privilege. See BARBARA J. FLAGG, WAS BLIND BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).
19. Cook notes that reconciliation can only come through an act of public atonement that entails a process of confession and restitution.
20. See, e.g., James Bennet, Clinton in Africa: The Overview; In Uganda, Clinton Expresses Regret On Slavery in U.S., N.Y. TIMES, Mar. 25, 1998, at A1.
21. See, e.g., Jeannine Lee, Southern Baptists Offer an Apology, U.S.A. TODAY, June 21, 1995, at 5A.
22. See Cook, supra, text accompanying notes 56-63.
23. See id.
24. FLAGG, supra note 5, at 1-2. Flagg's book is based upon her article, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 969 (1993).
25. See id.
26. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE 29-47 (1954) (discussing the formation of in-groups).
27. See id. at 17-19.
28. See id. at 19 (noting that separation into groups may lead to genuine conflicts of interest, not merely imaginary ones).
29. Compare Richard Delgado's comments on the dominant narrative, infra note 22.
30. Allport notes that one can be prejudiced in favor of something as well as prejudiced against something. See ALLPORT, supra note 13, at 6.
31. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
32. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
33. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
34. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
35. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
36. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
37. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
38. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
39. A seminal article that helped to jumpstart the critical race theory ("CRT") movement is Richard Delgado's The Imperial Scholar, in which Delgado accused white writers of ignoring minority perspectives and essentially perpetuating a civil rights agenda that excluded minority viewpoints. See Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561, 566-73 (1984). Since the movement's beginnings, critical race theorists have complained that their writing is not as well-received in the academy as mainstream writing because CRT does not embrace traditional ways of thinking acceptable to white America. When Randall Kennedy (an African-American whose work on race is closer to the mainstream reflected in civil rights scholarship by whites) argued in Racial Critiques of Legal Academics, 102 HARV. L. REV. 1745 (1989), that critical race theory was not gaining acceptance among whites because it was not thorough or scientific, his comments touched off a public firestorm reflecting discontents that had been festering in the academy for some time. Many law review articles deal purely with the question of critical race theory's legitimacy. See, e.g., Colloquy: Responses to Randall Kennedy's Racial Critiques of Legal Academia, 103 HARV. L. REV. 1844 (1990). See also Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1 (1991), which in addition to rejecting the pleas for a common ground approach, provides a useful history of the debate over critical race theory. Among white writers, the more recent vocal critics of CRT have included Judge Richard A. Posner and Professors Daniel Farber and Suzanna Sherry. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); RICHARD POSNER, OVERCOMING LAW (1995) (discussing in Chapter 18 "Nuance, Narrative, and Empathy in Critical Race Theory"). For one of numerous responses to such attacks, see Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637 (1999) (addressing Farber and Sherry's critiques, as they overlap with others' critiques). Similarly, critical race theorists have claimed that, as did Delgado in The Imperial Scholar in 1984, contemporary black writers who are willing to take on CRT and accept traditional approaches agreeable to whites have been celebrated in white scholarship, while black writers who argue for alternative views are far less frequently cited and certainly not celebrated. See, e.g., Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992). The debate over the legitimacy of critical race theory is but one example of a larger disconnect between black and white perspectives. (It is also important to note that not all African American writers, even those swimming against the mainstream tide, would label themselves members of the CRT movement.)
40. See ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992).
41. See, e.g., Clarence Page, Why not an Apology for Slavery? AUSTIN AMERICAN-STATESMAN, Apr. 2, 1998, at A15 (noting the hostile reactions to President Clinton's expression of regret for slavery while on Africa trip and, therefore, recanting his earlier view that the apology alone would not mean much).
42. Brown v. Board of Educ. ("Brown II"), 349 U.S. 294 (1955). Brown v. Board of Educ. ("Brown I"), 347 U.S. 483 (1954), determined that racial segregation in public schools was unconstitutional. Brown II addressed the question of remedy and ordered school authorities to fashion local remedies to accomplish desegregation.
43. This ability shapes what Richard Delgado has, in defense of the critical race theory narrative tradition, called the "dominant narrative," or "the body of received wisdoms that pass as truth but actually are contingent [and] power-serving." Richard Delgado, Rodrigo's Final Chronicle: Cultural Power, the Law Reviews, and the Attack on Narrative Jurisprudence, 68 S. CAL. L. REV. 545, 549 (1995).
44. See FLAGG, supra note 5.
45. See Cook, supra, text accompanying notes 50-52 .
46. See Cook, supra, Part II.
47. See Cook, supra, Part I.A.
48. Yamamoto, supra note 1, at 490.
49. See id.
50. 199 p.2d 1 (Cal. 1948).
51. See id. at 2.
52. See id.
53. See id.
54. See id. at 3-4 (holding that independent tortfeasors are jointly liable if liability between them cannot be apportioned because an innocent plaintiff lacks proof as to whose act caused the injury).
55. See id. at 5.
56. 607 P.2d 924, 938 (Cal. 1980).
57. 539 N.E.2d 1069, 1077-78 (N.Y. 1989). Similarly, statute of limitations objections raised to reparations calls are vulnerable. In the civil context, various tolling doctrines and, in some instances, revival statutes, have allowed individuals who were prevented from suing by law or circumstances to do so long after the applicable statute of limitations has expired. See, e.g., Hymowitz, 73 N.Y.2d at 507-08 (rejecting claims that an act reviving time barred products liability claims is unconstitutional). Moreover, if one considers slavery a crime against society, as well as a crime against individuals, no statute of limitations would bar remedy, for the criminal law has no such limitations. The central question would be the type of remedy that is appropriate.
58. See, e.g., CAL. PENAL CODE 496 (West 1999) (providing for up to one year imprisonment for any person who knowingly buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, or who assists in concealing, selling or withholding said property from its rightful owner). Other states similarly define the crime. See, e.g., LA. REV. STAT. ANN. § 14:69(A) (2001); MICH. COMP. LAWS § 750.535(1) (2000); N.Y. PENAL LAW § 165.50 (McKinney 1999). See also MODEL PENAL CODE § 223.6(2) (1980) (presuming person's knowledge of the stolen nature of property in certain circumstances).
59. See, e.g., MODEL PENAL CODE § 5.03 (1980). Compare MINN. STAT. § 609.229 (West Supp. 2001) (defining as a separate offense crimes "for the benefit of" a criminal gang, though the actors are not themselves gang members).
60. The theory of unjust enrichment in general has been suggested as a basis for reparations. See, e.g., Davis, supra note 1.
61. Smithberg v. Illinois Mun. Ret. Fund, 735 N.E.2d 560 (Ill. 2000) involved a husband's court-approved divorce settlement agreement to name his first wife beneficiary of a pension in exchange for her giving up rights to his other retirement benefits. Instead, after remarriage, he designated his second wife as the beneficiary. See id. at 562. After his death, the court, stating that "wrongdoing is not always a necessary element" of the constructive trust doctrine, imposed a constructive trust upon the benefits, and ruled that the second wife, although innocent, was not entitled to receive the benefits. See id. at 566. In Troy v. Hart, 697 A.2d 113 (Md. Ct. Spec. App. 1997), a Medicaid recipient who would have become ineligible for Medicaid assistance had he received his inheritance, disclaimed that inheritance and allowed his share to pass to his sisters. The court held that the sisters took as "constructive trustees," subject to Medicaid's claim for reimbursement. See id. at 119. While one sister was involved in securing her brother's disclaimer, the other was not. See id. at 115. See also Lackey v. Lackey, 691 So. 2d 990, 995 (Miss. 1997) (imposing a constructive trust on the proceeds of an insurance policy purchased with stolen trust funds); Pope v. Garrett, 211 S.W.2d 559 (Tex. 1948) (imposing a constructive trust upon heirs innocent of preventing execution of a revised will); RESTATEMENT OF RESTITUTION, § 160 ("Where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it, a constructive trust arises.") See also id. cmt. c and example therein. According to comment e, "Where property is held by one person upon a constructive trust for another, and the former transfers the property to a third person who is not a bona fide purchaser, the interest of the beneficiary is not cut off. In such a case he can maintain a suit in equity to recover the property from the third person, at least if his remedies at law are not adequate." See id. cmt. e (internal citation omitted). A few jurisdictions allow recovery even against good faith purchasers for value. See, e.g., COL. REV. STAT. § 18-4-405 (1999) (requiring that a person deprived of property by theft, robbery or burglary to be restored and to maintain an action against the wrongdoer or any possessor of the property including a good faith purchaser for value).
62. Of course, this is consistent with Derrick Bell's famous article on interest convergence. See Derrick Bell, Brown versus Board and the Interest Convergence Dilemma, 93 HARV. L. REV. 518 (1979).
63. See Cook, supra, Part I.A.
64. He concedes of course that such taxes might be passed on to consumers. This fact raises an interesting scenario in which blacks might end up paying in part for their own reparations.
65. See, e.g., Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710 (1993) (discussing how in earlier days light skinned blacks tried to pass as whites and thereby collect the economic benefits of being white). See also supra note 5.
66. Levmore, supra note 5, at 1688.
67. Compare Westley, supra note 1, at 435 (arguing that because the debate has intellectual benefit, "[r]eparations are worth fighting for even if such a campaign is unlikely to be successful").