This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British Empire selectively transplanted English law to the colonies it acquired during the eighteenth century. The extent to which each colony received English law depended on a political decision about what kind of colony policymakers wanted to create. Eighteenth-century observers agreed that English law could turn any territory into an anglicized, commercial colony on the model of Britain’s North American settlements. Preserving preexisting laws, in contrast, would produce colonial economies that enriched the empire as a whole but kept local subjects poor and politically disadvantaged. By controlling how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. This historical account revises not only our understanding of how the common law spread but also prevailing ideas about law’s place in development policy today.
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White Privilege and White Disadvantage
We hear the term “poor people and people of color” regularly. For example, the term frequently pops up in discussions of the criminal justice system. As a case in point, a recent report by The Sentencing Project describes racial disparities in sentencing and criticizes the United States for effectively operating “two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.” The term also appears in analyses of the ubiquitous presence that the state has in the lives of disempowered populations. In a report published by The Century Foundation, the authors assert that “[w]e do not need a unified theory of privacy to show that . . . marginal communities enjoy far less of it in practice. In some contexts, poor people and people of color have legal rights to privacy, but no means to exercise them.” Variations of the term are also common. For example, a Center for American Progress article, which condemns the Hyde Amendment for making abortion inaccessible to women who cannot afford to pay for the procedure, is titled “How the Hyde Amendment Discriminates Against Poor Women and Women of Color.”
However, the phrase “poor people and people of color,” as well as its variants, should give us pause. These phrases appear to suggest that, in the contexts in which the term is being used, all poor people—including poor white people—are similarly situated to all people of color. They imply that poor white people are as vulnerable to the criminal justice system as are all people of color, that the state surveils and regulates poor white people as vigorously as it surveils and regulates all people of color, and that the Hyde Amendment puts abortion as far out of the reach of poor white women as all women of color.
Simply stated, “poor people and people of color,” as well as its variants, imply that being poor is like being non-white. Now, if being poor is, in fact, like being non-white, then poor white people are like people of color. Significantly, if poor white people are like people of color, then the concept of white privilege becomes a bit misleading, if not altogether inaccurate. As Part II explains, white privilege refers to advantages that white people are supposed to receive by virtue of the fact that they are white. The concept presupposes that all white people—even the poor ones—have privileges on account of their race. However, if being poor is like being non-white, and if poor white people are like people of color, then it may not make sense to conceptualize poor white people as being privileged relative to people of color. If poor white people’s class disadvantage puts them in a social position that is similar to that occupied by people of color, then white privilege may not be something that they enjoy. Further, if white privilege is not enjoyed by poor white people, then it may make little sense to call it white privilege—inasmuch as white privilege implies that the privilege flows from being a member of the white race. It may make more sense to admit the error involved in the concept of white privilege and come up with a different concept altogether—something like affluent white people’s privilege or white class privilege.
For those who believe that white privilege remains a useful concept, it may be important for them to identify the benefits that even the most disenfranchised, disempowered white people possess on account of their race. The task of defending and rehabilitating the concept of white privilege by identifying poor white people’s race-based advantages is the goal of this paper. Carrie Buck—the plaintiff at the center of the Supreme Court’s 1927 decision Buck v. Bell—provides the foundation for the inquiry. Part I gives a history of the litigation that culminated in Bell, paying particular attention to the marginalization and disempowerment that Carrie Buck experienced throughout the course of her life. Part II describes various formulations of white privilege, identifying weaknesses with the most influential iterations of the concept. Part III analyzes the eugenics movement’s relationship to whiteness, describing its overarching interest in purifying and improving the white race. Part IV engages in the task of identifying the content of Carrie Buck’s white privilege, arguing that her racial privilege actually made her vulnerable to the state-sanctioned violence that she experienced. The Article concludes with some reflections on white privilege and outlines the work that those who are interested in racial justice must do in light of the complexity of the concept.
Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment
The national conversation concerning the resurgence of White supremacy and anti-Semitism after the 2017 Unite the Right rally in Charlottesville emerged in the context of other anti-racist social movements—most notably, efforts to draw attention to police violence and excessive force used against communities of color. Yet, despite the visibility created by this social movement, the frequency of fatal force has hardly changed. Moreover, excessive use of force remains extremely racialized, with African Americans accounting for forty percent of people shot and killed by police while only constituting fifteen percent of the population. Blacks are five times more likely to be shot by police than a White person.
Too many times the justice system has failed to hold police accountable—a reality tied to the discriminatory roots of policing in America. Mainstream legal thought suggests that the Fourth Amendment and judicial interpretations of “what counts” as unconstitutional use of force can serve as legal mechanisms that can protect minorities from police brutality. This widespread belief stems from the idea that federal courts serve as an interpretive body that is exogenous or external to police departments and dictates to them, in a top-down manner, which practices are permissible and when lines have been crossed. However, in a separate article, we engaged in an empirical assessment of the use of force policies from the seventy-five largest cities in the United States and then examined how these policies were used in constitutional litigation regarding excessive force. Rather than defining the meaning and scope of unconstitutional excessive force, we found that federal courts often referenced, relied upon, or deferred to the meaning of excessive force created by police departments in their use of force documents. Such deference explains, in part, why courts fail to hold police officers accountable when they abuse citizens. By ceding to police understandings of excessive force in defining the scope of Fourth Amendment protections, federal courts essentially allow police to make constitutional rules for themselves—what we call the endogenous Fourth Amendment.
While this may partially explain the lack of accountability, it also creates an opportunity. If courts are going to defer to police in defining the constitutional meaning of excessive force, then grassroots efforts to change police behavior can not only positively impact individual communities, but perhaps “filter up” to have a more synergistic effect in reshaping the constitutional rule. In this Article, we will discuss how grassroots efforts at remaking Fourth Amendment excessive force jurisprudence might work. Drawing upon the empirical research giving rise to the reform theory of procedural justice, we will discuss how efforts to work with police to use principles of safety and human dignity to rethink and redefine their use of force with communities might, in the context of existing doctrinal rules and at a large enough scale, create new standards that federal courts can rely on, refer to, or defer to and thereby remake constitutional meanings of excessive force in a way that consistently holds police accountable. In Part II, we further describe legal endogeneity and the ways in which it provides an alternative understanding of how the meaning of excessive force is produced. Part III then examines the literature on procedural justice and its response to the problem of police accountability. Part IV explores how the endogenous nature of Fourth Amendment excessive force jurisprudence in combination with efforts of procedural justice at the local level might, at a large enough scale, give federal courts a different baseline from which to reference in conceptualizing what constitutes excessive force. We then briefly conclude in Part V.