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Interpretive Entrepreneurs

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Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

Introduction

Uber is a “disruptor.”1 1.Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see alsoAndré Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019),https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”).Show More While the term generally refers to disruption of a business model, Uber’s disruption extends to the law.2 2.SeeElizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan).Show More Rather than submit to the restrictive rules of the taxicab industry, Uber read itself out of them, relying on its own aggressive legal interpretations to justify its plans.3 3.Id.Show More It then launched its business, entrenched itself in popular culture, gathered political power, and became “too big to ban.”4 4.Id. at 401–02.Show More Uber’s success in defining itself out of taxicab regulations is a high profile example of a phenomenon I call “interpretive entrepreneurship.”5 5.While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation.Show More

Interpretive entrepreneurship is the act of developing the law by interpreting it. Interpretive entrepreneurs might exploit legal uncertainty to pursue business plans, as Uber did, and change the regulatory environment along the way.6 6.Seediscussion infraSubsection II.A.1.Show More Or they may shop around favorable interpretations to regulators, or publicize reputation-friendly interpretations to investors and the public.7 7.Seediscussion infraSubsection II.A.2.Show More Through each mode, interpretive entrepreneurs seek to influence legal development.8 8.Seediscussion infra Section II.C.Show More A more familiar way to think about private sector influence over legal development is through the lobbying that surrounds new lawmaking efforts.9 9.See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals).Show More Interpretive entrepreneurship is the ex post companion to these ex ante lobbying efforts. While legal scholarship has focused on the ex ante lobbying,10 10.See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear).Show More the ex post interpretative role is underappreciated. As this Article shows, both activities deserve attention.

To sharpen the account and clarify the stakes, the Article makes two framing choices. First, while many actors can participate in legal interpretation, the Article focuses on interpretive entrepreneurship by business actors. This choice directs attention to the fact that some of the same actors may participate in both lobbying and interpretation as separate portions of a unified influence campaign to advance business agendas.11 11.See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance).Show More Second, the Article focuses its account on interpretation of international legal norms. While interpretive entrepreneurship may take place at any level of legal ordering, from the municipal to the international, interpretive entrepreneurship is particularly significant as a transnational phenomenon.12 12.Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice).Show More This is due to the growing importance of transnational commerce combined with the lack of courts with general jurisdiction and a system of precedent on the international level.13 13.Cohen, Theorizing Precedent, supranote 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points).Show More

Conventional accounts of international legal interpretation focus on interpretive doctrine rather than on the process of interpretation and the multiplicity of actors involved.14 14.Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword toInterpretation in International Law, supranote 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”).Show More But related literatures show that interpretive participants and processes matter. For example, debates in the United States concern which questions are too “political” for the judiciary to resolve, and which branch of government is best suited to decide matters of foreign affairs.15 15.SeeJesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supranote 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation).Show More They rest on the assumption that the interpreter and the forum can affect the outcome.

The Article directs attention to processes of international legal interpretation, and particularly to private sector influences in that process. It relies on the socio-legal method of grounding theoretical insights in descriptive analysis.16 16.The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012).Show More Its analysis suggests that business entities are involved in a potentially vast amount of international interpretive activity which helps shape the development of international legal norms.

The Article makes three principal contributions. First, it describes and analyzes the interpretive entrepreneurship phenomenon through a collection of case studies relating to diverse areas of public and private international law.17 17.SeeinfraSections II.A & B.Show More The case studies are based on both original research and a cross-disciplinary literature review. They cast a wide net, ranging from aircraft financing18 18.Seeinfra Subsection II.A.1.Show More to the meaning of “modern slavery”19 19.Seeinfra Subsection II.A.4.Show More for the purpose of supply chain due diligence. They address private sector interpretations in trade and investment law20 20.Seeinfra Subsection II.A.3 & Section II.B.Show More as well as the Outer Space Treaty’s application to commercial mining.21 21.SeeinfraSubsection II.A.2.Show More

The case studies show how, why, and by whom interpretive entrepreneurship unfolds.22 22.For all the points in this paragraph, see thediscussion in Section II.C.Show More The methods of interpretation are both formal and informal; they are sometimes facilitated by the apparatus of the state, and sometimes take place in purely private fora. Targets of persuasive campaigns, the “audiences” for these private sector interpretations, can be state parties to a treaty, domestic courts or international tribunals, subnational regulators, shareholders, or the public. The case studies show that private actors can engage in interpretive entrepreneurship for a variety of purposes, including to entrench commerce-friendly interpretations, forestall regulation, secure reputational benefits, or demonstrate compliance.

The Article’s second contribution is to show how the interpretive entrepreneurship phenomenon contributes to and re-frames existing debates on international legal interpretation. Many debates focus on interpretive rules found in the Vienna Convention on the Law of Treaties (“VCLT” or Vienna Convention),23 23.Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supranote 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”).Show More and on the best methods to apply those rules.24 24.As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. Seediscussion infraSubsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. SeeHollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”).Show More A “retrievalist” view suggests that applying the rules correctly will produce a correct interpretation.25 25.Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”).Show More But the Vienna Convention rules themselves require interpretation,26 26.SeeHollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see alsoJohn Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach,35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see alsoH.L.A. Hart, The Concept of Law 204(2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”).Show More and critical theorists reject the formalist project as blinkered, observing that legal interpretation is infused with ideology and reflects and embeds power.27 27.See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law, supranote 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see alsoNote,’Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship,95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infraSubsection I.B.2 (developing these points).Show More A third, “constructivist,” approach proposes that interpretation is necessarily a creative process, as interpreters use various tools to try to persuade others within interpretive communities.28 28.Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law, supranote 12, at147, 149.Show More Interpretation is a contest, a game, or a staging ground for bargaining.29 29.SeeWaibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law, supra note12,at34, 34 (calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”).Show More This Article re-focuses these debates, showing how, for each of the dominant theoretical approaches to international legal interpretation, the process of interpretation has real stakes. It also gives credence to critical and constructivist understandings that the identity of the interpreter matters to the interpretation.

Third, the Article frames these interpretive processes as a form of post hoc lawmaking,30 30.Seeinfra Part III.Show More which develop the meaning of laws over time. The phenomenon is worth studying alongside activities like lobbying and agency capture that exert pressure on lawmaking ex ante.31 31.SeeEyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g.,Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games).Show More The project therefore contributes to literatures that investigate how multinational entities wield their power to shape international law.32 32.These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography).Show More It is also in conversation with a literature that explores the role of “regulatory intermediaries” in developing international law,33 33.Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015).Show More and a literature that conceives of international law as the product of “norm cascades” produced in part by norm entrepreneurs.34 34.Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”).Show More Understanding interpretive entrepreneurship as one way private actors influence the law clarifies the practice of international legal interpretation, helps evaluate its effects on the legitimacy and effectiveness of international law, and develops a foundation for potential reforms.

The practical context is important. Despite existential global threats like climate change, the risk of pandemic, and regional conflicts, the early twenty-first century is not an era of multilateral lawmaking. Rather, the tools at hand are principally the laws on the books. As the Article shows, because interpretation can develop those laws over time,35 35.Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances).Show More they attract contests for meaning by those who would develop or erode them. Interpretive entrepreneurship can drive legal change.

Part I develops the argument that a process-based account of international legal interpretation has both theoretical and practical salience. Part II describes the interpretive entrepreneurship phenomenon through a series of case studies and organizes and analyzes this activity. Part III characterizes interpretive entrepreneurship as post hoc lawmaking and identifies its implications.

  1. * Allen Post Professor of Law, University of Georgia. Thanks to Erez Aloni, Julian Arato, Martin Bjorkland, Christopher Borgen, Nathan Chapman, Harlan Grant Cohen, Tim Dorlach, James Gathii, Catherine Hardee, David Hughes, Brian Israel, John Linarelli, Margaret McGuinness, Jide Nzelibe, Lori Ringhand, Usha Rodriguez, Peter B. Rutledge, Alvaro Santos, Galit Sarfaty, Yahli Shereshevsky, Richard Steinberg, and participants at workshops at the ASIL Biennial International Economic Law Workshop, the American Society of International Law Research Forum, the UGA-Emory works-in-progress workshop, and the St. John’s University School of Law International Law Colloquium. Special thanks to Andrew Hedin, Matheus Teixeira, and the UGA Law Library for research assistance. ↑
  2. Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see also André Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019), https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”). ↑
  3. See Elizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan). ↑
  4. Id. ↑
  5. Id. at 401–02. ↑
  6. While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation. ↑
  7. See discussion infra Subsection II.A.1. ↑
  8. See discussion infra Subsection II.A.2. ↑
  9. See discussion infra Section II.C. ↑
  10. See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals). ↑
  11. See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear). ↑
  12. See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance). ↑
  13. Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law 268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].

    In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice). ↑

  14. Cohen, Theorizing Precedent, supra note 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points). ↑
  15. Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword to Interpretation in International Law, supra note 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”). ↑
  16. See Jesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supra note 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation). ↑
  17. The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012). ↑
  18. See infra Sections II.A & B. ↑
  19. See infra Subsection II.A.1. ↑
  20. See infra Subsection II.A.4. ↑
  21. See infra Subsection II.A.3 & Section II.B. ↑
  22. See infra Subsection II.A.2. ↑
  23. For all the points in this paragraph, see the discussion in Section II.C. ↑
  24. Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supra note 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”). ↑
  25. As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. See discussion infra Subsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. See Hollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”). ↑
  26. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”). ↑
  27. See Hollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see also John Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).

    Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see also H.L.A. Hart, The Concept of Law

    204

    (2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”). ↑

  28. See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law
    ,

    supra

    note 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see also Note, ‘Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infra Subsection I.B.2 (developing these points). ↑

  29. Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law
    ,

    supra note 12, at

    147, 149.

    ↑

  30. See Waibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law
    ,

    supra note

    12

    ,

    at

    34, 34 (

    calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”). ↑

  31. See infra Part III. ↑
  32. See Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g., Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games). ↑
  33. These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography). ↑
  34. Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015). ↑
  35. Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”). ↑
  36. Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances). ↑
  37. See infra Section I.A. (reviewing this debate). ↑
  38. See Joseph J. Ellis, The Supreme Court Was Never Meant to Be Political, Wall St. J. (Sept. 14, 2018), https://www.wsj.com/articles/stop-pretending-the-supreme-court-is-above-politics-1536852330 [https://perma.cc/TU2G-95XW] (examining the importance of presidential nominations of Justices to the Supreme Court by pointing to the growth of seemingly political 5-4 decisions since 1954); see also Carl Hulse, Political Polarization Takes Hold of the Supreme Court, N.Y. Times (July 5, 2018), https://www.nytimes.com/2018/07/05/us/politics/political-polarization-supreme-court.html [https://perma.cc/P6SK-KNGR] (observing perceptions that the Supreme Court is becoming more politically polarized and less neutral). ↑
  39. E.g., Most Americans Trust the Supreme Court, but Think It Is ‘Too Mixed Up in Politics,’ Associated Press (Oct. 16, 2019), https://apnews.com/PR%20Newswire/ca162cc‌03b3261ff608ab7d8cfc31a25 [https://perma.cc/7U2X-VURA] (reporting on surveys that reflect that a growing number of the American public views the Supreme Court as partisan). ↑
  40. Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 470 (1988) (book review) (“Social context, the facts of the case, judges’ ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time. The realists felt that study of such factors could improve predictability of decisions.”); Lewellyn, supra note 26, at 1237 (arguing that one of the hallmarks of realism is “distrust . . . that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Cohen, supra note 26, at 843 (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”). ↑
  41. Bradley & Goldsmith, supra note 12, at 1203 (arguing that “Presidents have come to dominate the making, interpretation, and termination of international law for the United States”). ↑
  42. Harlan Grant Cohen, The Death of Deference and the Domestication of Treaty Law, 2015 BYU L. Rev. 1467, 1469 (2015) [hereinafter Cohen, Death of Deference]. ↑
  43. Restatement (Third) of the Foreign Relations Law of the United States § 326 (Am. L. Inst. 1986). ↑
  44. Cohen, Death of Deference, supra note 41, at 1467. ↑
  45. See, e.g., Linda D. Jellum, The Theories of Statutory Construction and Legislative Process in American Jurisprudence, in Logic in the Theory and Practice of Lawmaking

    173, 174 (Michał Araszkiewicz & Krzysztof Płeszka eds., 2015) (introducing the competing theories of statutory interpretation as applied in American jurisprudence). Debates implicate theories like originalism, textualism, and intentionalism, and include familiar questions about whether interpretation should privilege the specific intent of the drafters or render the text adaptable to new circumstances. See id. at 181–94. ↑

  46. See id.at 180 (explaining that judges use canons of construction to discern legislative meaning; some of these have at times been highly controversial, and their use has changed over time). ↑
  47. See Choper, supra note 15, at 1–2 (describing debates, perspectives, and issues). ↑
  48. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Bernard W. Bell, Marbury v. Madison and the Madisonian Vision, 72 Geo. Wash. L. Rev.

    197, 197 (2003) (“[T]hat the Court in at least some instances has the power to enforce the Constitution by invalidating the actions of all government officials, even Congress and the [P]resident acting through the legislative process—is no longer seriously contested.”). ↑

  49. See Posner, supra note 12, at 1–2 (examining potential theories for why the ICJ’s light caseload has declined over the long term relative to the number of states). ↑
  50. See Cohen, Theorizing Precedent, supra note 12, at 269 (“International law today . . . generally denies international precedents doctrinal force. . . . [J]udicial decisions construing international law are not in and of themselves law—decisions are not binding on future parties in future cases, even before the same tribunal.”). ↑
  51. Ulrich Fastenrath, Relative Normativity in International Law, 4 Eur. J. Int’l L. 305, 335 (1993). ↑
  52. See Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 Law & Contemp. Probs. 1, 1, 14 (2008) (“[T]he individual state surrenders some autonomy to international bodies . . . by authorizing them to participate in decision-making processes and to take actions that affect the state. . . . A regulatory delegation grants authority to create administrative rules to implement, fill gaps in, or interpret preexisting international obligations.”). ↑
  53. See, e.g., Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 3, WTO Doc. WT/DS58/AB/RW (adopted Nov. 21, 2001) (deciding whether the United States could prohibit the importation of certain shrimp and shrimp products under Article XX(g) of the GATT 1994). ↑
  54. Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (defining “refugee”); see also M. Akram Faizer, America First: Improving a Recalcitrant Immigration and Refugee Policy, 84 Tenn. L. Rev. 933, 953–54 (2017) (“Refugees are entitled to claim protection under the Refugee Convention while economic migrants are excludable and deportable . . . .”). ↑
  55. See David N. Cinotti, How Informed is Sovereign Consent to Investor-State Arbitration?, 30 Md. J. Int’l L. 105, 113 (2015) (discussing Philip Morris’s arbitrations against Uruguay for requiring graphic images on the warning labels on cigarette cartons). ↑
  56. Melissa J. Durkee, Interstitial Space Law, 97 Wash. U. L. Rev. 423, 452 (2019) (noting that the answer to whether companies may legally make commercial use of outer space resources depends on interpretation of the Outer Space Treaty). ↑
  57. Jeffrey L. Dunoff & Mark A. Pollack, Reviewing Two Decades of IL/IR Scholarship: What We’ve Learned, What’s Next, in Interdisciplinary Perspectives on International Law and International Relations 626, 637–38 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013) (“[M]ost legal interpretation takes place outside of courts. . . . But this activity has largely fallen outside the purview of IL/IR scholarship. . . . The methodological challenges of studying dispute settlement outside the judicial arena are substantial . . . .”). But see Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012) (exploring how actors who hold semantic authority can shift the meanings of international legal texts through discourse about them). ↑
  58. See Cohen, Theorizing Precedent, supra note 12, at 269 (international judicial decisions lack precedential value); Posner, supra note 12, at 1 (international courts do not decide many cases). ↑
  59. See, e.g., Anthony Aust, Modern Treaty Law and Practice 233 (2d ed. 2007) (“[W]hatever the mechanism by which a dispute about the interpretation or application of a treaty is determined, the body will be guided by the principles and rules in Articles 31 and 32 [of the Vienna Convention].”); Richard K. Gardiner, Treaty Interpretation 9 (2d ed. 2015) (“This book is not about theory. It is about the practical use of the Vienna rules.”); The Oxford Guide to Treaties 475–550 (Duncan Hollis ed., 2012) (focusing three chapters on interpretation on the Vienna Convention rules and special circumstances where it is necessary to diverge from them); Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann, Research Handbook on the Law of Treaties, at xi–xii (Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann eds., 2014). ↑
  60. Peat & Windsor, supra note 14, at 6–7. ↑
  61. Raz, supra note 25, at 264. ↑
  62. Peat & Windsor, supra note 14, at 9 (quoting Raz, supra note 25, at 241–64). ↑
  63. It should be noted that some who advance purposive or evolutive theories of treaty interpretation may chafe at being placed in the “formalist” camp. These thinkers consider only stricter textualists to be formalists and call themselves something else, perhaps “functionalists.” The point of lumping all these positions together here is not to eliminate these important distinctions, but to show that much of the international legal scholarship on interpretation focuses on how to apply the rules of the game, the Vienna Convention rules, as each of these positions does. See infra notes 69–78 and accompanying text. ↑
  64. Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. Even states that have not joined the Vienna Convention, like the United States, usually consider the treaty’s rules to be legally binding through customary international law. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights and Conditional Consent, 149 U. Pa. L. Rev. 399, 424 (2000) (noting that U.S. scholars and executive branch officials accept that many provisions of the Vienna Convention have entered into custom). The International Court of Justice has also treated the Vienna Convention’s interpretive rules as binding through custom. Frederic L. Kirgis, Jr., Custom on a Sliding Scale,
    81

    Am. J. Int’l L. 146, 149 n.16 (1987) (observing “the readiness of international tribunals,” including the ICJ, “to accept, as custom, the major substantive provisions of the Vienna Convention on the Law of Treaties”). ↑

  65. Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. ↑
  66. Id. (defining the context to include the preamble and annexes, among other things). ↑
  67. Id. Note that the preparatory work of the treaty is the international version of legislative history. ↑
  68. Id. ↑
  69. Peat & Windsor, supra note 14, at 6. ↑
  70. See, e.g., Isabelle Buffard & Karl Zemanek, The “Object and Purpose” of a Treaty: An Enigma?, 3 Austrian Rev. Int’l & Eur. L. 311, 315 (1998); David S. Jonas & Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, 43 Vand. J. Transnat’l L.
    565, 577 (2010).

    ↑

  71. See Rebecca Crootof, Change Without Consent: How Customary International Law Modifies Treaties, 41 Yale J. Int’l L. 237, 252 (2016) (identifying these as the “three primary schools of thought on treaty interpretation”). ↑
  72. See, e.g., Julian Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations, 38 Yale J. Int’l L. 289, 294 (2013) (discussing approaches to treaty interpretation based on the original and subsequent intent of state parties). ↑
  73. See, e.g., Georg Nolte, Introduction to Treaties and Subsequent Practice 1–2 (Georg Nolte ed., 2013); Crootof, supra note 70, at 240; Rahim Moloo, When Actions Speak Louder Than Words: The Relevance of Subsequent Party Conduct to Treaty Interpretation, 31 Berkeley J. Int’l L. 39, 57 (2013) [hereinafter Moloo, Subsequent Party Conduct] (discussing the type of subsequent conduct relevant to treaty interpretation according to the Vienna convention). ↑
  74. See, e.g., Yahli Shereshevsky & Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts, 28 Eur. J. Int’l L.

    1287, 1310 (2017) (finding that “preparatory work can play a significant role in decision making”). ↑

  75. See Julian Arato, Accounting for Difference in Treaty Interpretation Over Time, in Interpretation in International Law
    ,

    supra note 12, at 205, 205–06 (collecting evidence that courts have taken a distinctive approach to the interpretation of human rights treaties). ↑

  76. E.g., Neha Jain, Interpretive Divergence, 57 Va. J. Int’l L. 45, 47–48 (2017) (challenging an “orthodox” position of treaty interpretation through an examination of the Rome Statute of the International Criminal Court). ↑
  77. E.g., Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, at lxiii (2009) (examining interpretive methods in WTO jurisprudence). ↑
  78. E.g., Rebecca M. Kysar, Interpreting Tax Treaties, 101 Iowa L. Rev. 1387, 1389–91 (2016) (arguing that because of the distinctive features of tax treaties, courts are justified in relying on extrinsic materials when interpreting them). ↑
  79. E.g., Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration 61–64 (2014). ↑
  80. Another question formalists may care about, which lies beyond the scope of this project, is whether real-world processes of international legal interpretation moves take place outside of the ambit of national sovereignty or delegated authority. Are non-state interpreters competing with sovereigns or displacing authoritative interpretations? ↑
  81. After all, as the previous discussion illustrated, questions about how properly to apply the Vienna Convention are what fuel the voluminous scholarly debates. See supra Subsection I.B.1. ↑
  82. The critical legal studies movement has developed and amplified the critique, but it began much earlier. See Hersch Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 Brit. Y.B. Int’l L. 48, 53 (1949) (noting that rules are “not the determining cause[s] of judicial decision, but the form in which the judge cloaks a result arrived at by other means”). ↑
  83. Peat & Windsor, supra note 14, at 12; see also, Johnstone, supra note 27, at 411 (2008) (querying whether interpreters are “making law, based on values and policy choices”). ↑
  84. Owen Fiss famously called this the “nihilist challenge” to law. See Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 741 (1982) (“The nihilist would argue that for any text . . . there are any number of possible meanings, that interpretation consists of choosing one of those meanings, and that in this selection process the judge will inevitably express his own values.”). ↑
  85. Koskenniemi
    ,

    supra note 27, at 18. ↑

  86. Id. at 531 (emphasis added). ↑
  87. Ingo Venzke, Is Interpretation in International Law a Game?, in Interpretation in International Law
    ,

    supra note 13, at 352, 353. ↑

  88. Id. at 359. ↑
  89. Id. at 353. See also id. at 352–53 (describing three common ways of understanding “what it means to play the interpretive game”). ↑
  90. Fiss, supra note 83, at 741; see also Martti Koskenniemi, International Law and Hegemony: A Reconfiguration, 17 Cambridge Rev. Int’l Affs. 197, 199 (2004) (finding that international actors use legal meaning as a tool to “challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents”). ↑
  91. Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 Am. J. Int’l L. 613, 614–15 (1991). ↑
  92. See id. at 621–22 (“In both states and international organizations the invisibility of women is striking. . . . [W]omen have significant positions of power in very few states, and in those where they do, their numbers are minuscule.”). This results in legal regimes where “issues traditionally of concern to men become seen as general human concerns” and “women’s concerns” are marginalized. Id. at 625. ↑
  93. See Moshe Hirsch, The Sociology of International Law: Invitation To Study International Rules in Their Social Context, 55 U. Toronto L.J. 891, 929–30 (2005) (summarizing this literature). ↑
  94. For example, feminist thinkers have proposed that treaty interpretation should recognize the omission of women in lawmaking. Since men have held privileged positions in developing treaty texts, the interpretation of treaties should favor women, as the weaker parties. Id. at 930. For example, “treaty rules that protect women’s rights . . . should be interpreted expansively, and rules that prejudice women’s legal interests should be narrowly construed.” Id. ↑
  95. A recent volume on “Feminist Judgments in International Law” makes both the explicit and implicit point that identity of the interpreter shapes the legal interpretation. Editors of the volume claim that a feminist chamber may, among other things, “place greater emphasis on the context of a dispute; highlight the impact of power and politics on international law decision-making; foreground the experiences of individuals; [or] offer a different interpretation of rules and rights . . . .” Feminist Judgments in International Law 14 (Loveday Hodson & Troy Lavers eds., 2019). The authors make this point implicitly as well, as the conceit of the book is to rewrite a number of different judicial decisions in international law from a feminist perspective, demonstrating that the perspective of the interpreter matters. See id. at 8 (explaining that “the aim of the project . . . [is] to take the feminist re-writing methodology and apply it to the decisions of international tribunals,” thereby “telling the story differently”). ↑
  96. B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8

    Int’l. Cmty. L. Rev.

    3

    , 15 (2006). ↑

  97. Id. at 12–13. ↑
  98. See id. at 13 (noting that “the WTO Appellate Body has interpreted the texts in a manner as to upset the balance of rights and obligations agreed to by third world States”). Chimni offers as an example the Appellate Body’s interpretation of the balance between trade and environmental concerns, an interpretation that, he claims, “was never envisaged by third world States” and has brought detrimental consequences. Id. ↑
  99. Id. at 22 (“[B]oth feminist and third world scholarship address the question of exclusion by international law.”). ↑
  100. Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities, 12 Mich. J. Int’l L. 371, 378 (1991) [hereinafter Johnstone, Interpretive Communities]. ↑
  101. See id; cf. J.M. Balkin & Sanford Levinson, Interpreting Law and Music: Performance Notes on “The Banjo Serenader” and “The Lying Crowd of Jews,” 20 Cardozo L. Rev. 1513, 1519–20 (1999) (discussing the role of the audience in determining whether an interpretation of a text is “authentic or faithful”). ↑
  102. See Waibel, supra note 28, at 147. ↑
  103.  See Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities 14 (1980) (offering a literary theory argument that it is interpretive communities who determine the meanings of texts); see also Peat & Windsor, supra note 14, at 10 n.48. The idea is that “[t]he text is not an object entirely independent of its reader, nor is interpretation an entirely individual and subjective activity; meaning is produced by neither the text nor the reader but by the interpretive community in which both are situated.” Johnstone, Interpretive Communities, supra note 99, at 378. ↑
  104. Johnstone, Interpretive Communities, supra note 99, at 374 (noting Fiss’s proposal that, as in the case of literary interpretation, “legal interpretation is constrained by a set of disciplining rules recognized as authoritative by an interpretive community”). ↑
  105. See id. at 375 (“Fiss emphasizes that the interpretive community of judges has authority to confer on particular interpretations because judges belong to the community . . . .”). Judges do not claim that their interpretation is authoritative by arguing for its superior merits as an intellectual matter but rather by “by virtue of their office[s]” as judges. Id. “[T]he interpretive community of judges has authority to confer on particular interpretations because judges belong to the community” that holds the societal mandate to make authoritative interpretations. Id. ↑
  106. Id. at 385. ↑
  107. Id. ↑
  108. Id. at 378 (noting that it is these practices and conventions that constrain interpretive discretion). ↑
  109. See id. at 380. The interpretive process is relational, as parties “generate, elaborate and refine shared understandings and expectations.” Id. at 381. That idea that interpretation is a persuasive endeavor blossomed inevitably into the idea that interpretation is a game with players, strategies, objectives, and rules of play. A recent edited volume on interpretation by Andrea Bianchi and coauthors explicitly adopts the metaphor of the game. Bianchi, supra note 29. ↑
  110. Tobin, supra note 26, at 9. ↑
  111. Id. at 3–4. ↑
  112. Id. at 49 (“The task of interpretation must therefore be seen not simply as the attribution of meaning to a legal text but also as an attempt to persuade the relevant interpretive community that a particular meaning from within a suite of potential meanings should be adopted.”). ↑
  113. Id. at 14–48 (offering suggestions for how non-judicial actors might persuasively interpret human rights norms for audiences such as domestic government officials). ↑
  114. See generally id. (focusing on non-governmental organizations, academics, and international organizations as among the non-judicial actors concerned with human rights norms). ↑
  115. See Frederick Schauer, Pitfalls in the Interpretation of Customary Law, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives 13, 13 (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007) (“Much has been written on the legal status of customary law, but considerably less attention has been devoted to the question of determining the content of the customary law whose legal status (or not) is at issue.”); Orfeas Chasapis Tassinis, Customary International Law: Interpretation from Beginning to End, 31 Eur. J. Int’l L. 235, 235 (2020) (“International lawyers seldom think of customary law and interpretation under the same heading.”). ↑
  116. See, e.g., Chasapis Tassinis, supra note 114, at 236 (“[T]he dominant approach has largely reduced the analysis of customary international law to its identification through the collection of appropriate evidence.”); Curtis A. Bradley, Customary International Law Adjudication as Common Law Adjudication, in Custom’s Future: International Law in a Changing World 34, 34–39 (Curtis A. Bradley ed., 2016) (collecting debates, including whether custom requires both elements of practice and opinio juris; how it is possible to discern opinio juris; that there is no standard as to how much state practice is necessary; how to weigh various evidences of custom formation; how much evidence is necessary to determine whether custom has formed; whether custom is undemocratic; and so forth); Monica Hakimi, Making Sense of Customary International Law, 115 Mich. L. Rev. 1487, 1505 (2020) (arguing that a proposed customary international legal rule acquires force based on “how the group of actors who participate in a given domain of global governance interact with the position”); J. Patrick Kelly, The Twilight of Customary International Law, 40 Va. J. Int’l L.

    449, 452 (2000) (contending that the use of customary international law should be disfavored); Joel P. Trachtman, The Growing Obsolescence of Customary International Law, in Custom’s Future

    ,

    supra, at 172,

    172

    (noting that many areas once covered by custom should now be codified in treaties); Andrew T. Guzman, Saving Customary International Law, 27 Mich. J. Int’l L. 115, 119 (2005) (weighing relative usefulness of custom and treaties). ↑

  117. Schauer, supra note 114, at 13. ↑
  118. In practice, critical, formal, or constructive views tend to focus on the identification rather than the interpretation of custom. Chasapis Tassinis, supra note 114, at 236. That is, the theoretical debates are often channelled into questions about whether a customary international legal norm exists rather than debates about how to interpret an existing norm. See, e.g., B.S. Chimni, Customary International Law: A Third World Perspective, 112 Am. J. Int’l L. 1, 7 (2018) (claiming that “CIL rules embody ‘hegemonic’ ideas and beliefs”); Daniel H. Joyner, Why I Stopped Believing in Customary International Law, 9 Asian J. Int’l L. 31, 39 (2019) (“[A]ll of us—international courts, the ILC, and academics—in fact use our corrupted methodologies for determining the presence of CIL in order to serve our own instrumentalist ends.”); Bradley, supra note 115 (collecting critiques). ↑
  119. Custom therefore offers parallels to the common law in the United States and Commonwealth nations. See Bradley, supra note 115, at 34 (developing the theory that “[t]he application of CIL by an international adjudicator . . . is best understood in terms similar to the judicial development of the common law”); see also Chasapis Tassinis, supra note 114, at 237 (noting that “interpretation . . . can be applied not just to words and text but also to social practices and unwritten rules”). ↑
  120. Thus, one way to describe custom is as “the generalization of the practice of States,” as Judge Read did in the ICJ’s Fisheries Case. Fisheries (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 116, 191 (Dec. 18) (Read, J., dissenting); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 207 (June 27) (“[F]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice,’ but they must be accompanied by the opinio juris sive necessitatis. . . . [Relevant States] must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.’”); North Sea Continental Shelf (Ger./Den.; Ger./Neth.), Order, 1969 I.C.J. Rep. 3, ¶ 77 (Feb. 20) (“The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even the habitual character of the acts is not in itself enough.”); Statute of the International Court of Justice art. 38(1)(b) (providing that the Court “shall apply . . . international custom, as evidence of a general practice accepted as law”). ↑
  121. Schauer, supra note 114, at 13. ↑
  122. Id. at 15 (arguing that interpretive questions are “no less relevant when the question is the interpretation . . . of customary law”). ↑
  123. Id. at 16. ↑
  124. Custom is also susceptible to the critique from American legal realism that law may not substantially constrain decision makers; it is also susceptible to questions about whether interpretation is a coherence-based process that develops within communities or a deductive one that produces a single correct answer. Chimni, supra note 117, at 15–16; see also Chasapis Tassinis, supra note 114, at 237–38 (pointing out that acknowledging that using customary international law requires “interpretive choices at every juncture of custom’s life” reveals the challenge of plasticity, or the idea that “legal analysis may theoretically yield rules of different . . . scope while using the exact same evidence”). ↑
  125. Schauer, supra note 114, at 16. ↑
  126. See, e.g., Andrea Bianchi, The International Regulation of the Use of Force: The Politics of Interpretive Method, 22 Leiden J. Int’l L. 651, 653–54 (2009) (proposing that interpretive communities can include “the handful of academics” that specialize in a particular rule’s application, “non-governmental organizations, lobbies, and pressure groups that may have an interest in particular instances, and intellectuals and opinion-makers who influence public opinion by publicly voicing their position on any given matter”); Johnstone, Interpretive Communities, supra note 99, at 385 (identifying two interpretive communities for treaties: first, officials directly responsible for treaty interpretation; and second, the broader international legal community consisting of “all experts and officials engaged in the various professional activities associated with treaty practice”). ↑
  127. See, e.g., Gardiner, supra note 58 (focusing on international entities that hold formal or delegated authority to interpret, such as international organizations, international courts and tribunals, and national legal systems; omitting mention of non-state actors); Dunoff & Pollack, supra note 56, at 637 (noting international legal scholarship’s “almost exclusive emphasis on judicial behavior and its relative neglect of legal interpretation per se”). ↑
  128. Daniel Peat and Matthew Windsor have proposed a similar set of questions, including: What is the “purpose of interpretation in the international legal system”? Do “actors’ interpretations differ according to their professional identities”? Does “strategy motivate[] interpretive choice”? Peat & Windsor, supra note 14, at 4. ↑
  129. E.g., Shaffer & Ginsburg, supra note 16, at 1 (“What matters now is the study of the conditions under which international law is formed and has effects.”). The lack of attention to these questions on the international stage contrasts with attention to these interpretive questions in the domestic context, as in U.S. domestic law. See, e.g., Kent Greenawalt, Statutory and Common Law Interpretation 4 (2013); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 1–3 (2010); Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 1 (2006). It also contrasts with scrutiny of these questions in other disciplines. See, e.g., Fish, supra note
    102

    , at 13–14 (literary theory). ↑

  130. See, e.g., Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 7–9 (2012) (global legal pluralism); Büthe & Mattli, supra note 32, at 1–2 (private sector standard setting organizations); Terence C. Halliday & Gregory Shaffer, Transnational Legal Orders, in Transnational Legal Orders 3, 3 (Terence C. Halliday & Gregory Shaffer eds., 2015) (transnational legal orders); Kenneth W. Abbott & David Gartner, Reimagining Participation in International Institutions, 8 J. Int’l L. & Int’l Rel. 1, 4 (2012) (multi-stakeholder structures); Kenneth W. Abbott & Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vand. J. Transnat’l L. 501, 504–06 (2009) (cooperative public-private mechanisms and projects). ↑
  131. See generally Kishnathi Parella, Treaty Penumbras, 38 U. Penn. J. Int’l L. 275, 303–11 (2017) (reviewing the robust literature that responds to institutionalized efforts to engage the business sector through the Global Compact, the Ruggie Principles, and other efforts); see also supra note 32 and accompanying text (gathering a multidisciplinary literature on global corporate influence). ↑
  132. See generally sources cited supra notes 9–10 (lobbying and campaign contributions); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights 62 (2018) (personhood). ↑
  133. See Gregory C. Shaffer, How Business Shapes Law: A Socio-Legal Framework, 42 Conn. L. Rev. 147, 150 (2009) (proposing this area of research); Paul B. Stephan, Privatizing International Law, 47 Va. L. Rev. 1573, 1595–1601 (2011) (noting a lack of information about the degree and effect of corporate participation in international lawmaking). ↑
  134. Finnemore & Sikkink, supra note 34, at 893–94. ↑
  135. Id. at 893–98. ↑
  136. Id. ↑
  137. Id. at 899; see also Erica Sandhu, Completing the Norm Life Cycle: The Post-Treaty Involvement of NGOs in the Mine Ban Treaty and Chemical Weapons Convention 5–7 (Aug. 2014) (M.A. thesis, University of British Columbia), https://open.library.ubc.ca/cIRcle/‌collections/ubctheses/24/items/1.0166964 [https://perma.cc/4K4C-4BDB]. ↑
  138. See Sandhu, supra note 136, at 1. ↑
  139. Heidi Nichols Haddad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 196 (2013). ↑
  140. See, e.g., Abbott, Levi-Faur & Snidal, supra note 33, at 14. ↑
  141. Id. ↑
  142. Id. at 15. ↑
  143. Talesh, supra note 33, at 4 (2015). ↑
  144. Crootof, supra note 70, at 252 (identifying as “[a]daptive interpretations” those that are “not immediately suggested by the treaty, but which attempt to reconcile outdated text with actual (or sometimes desired) state action”). ↑
  145. Moloo, Changing Times?, supra note 35, at 261 (noting that treaties are hard to amend and suggesting “we look to treaty interpretation tools to adapt treaties to evolving circumstances”). ↑
  146. Wang, supra note 29, at 837. ↑
  147. Id. ↑
  148. See Karen J. Alter, The Future of International Law, in A New Global Agenda: Priorities, Practices, and Pathways of the International Community, at 25,
    30–31 (

    Diana Ayton-Shenker ed., 2018) (tracing a variety of forms of backlash against the international liberal order). ↑

  149. See id. ↑
  150. See generally Eskridge, supra note 9, at 5 (developing a history of U.S. federal lobbying regulation through 1954); Susman & Luneburg, supra note 9, at 23 (offering a history of U.S. lobbying law since 1955). ↑
  151. See generally Durkee, supra note 31, at 1747 (describing the “quotidian reality of international lobbying”). ↑
  152. See generally Melissa J. Durkee, The Business of Treaties, 63 UCLA L. Rev. 264 (2016) [hereinafter Durkee, Business of Treaties] (describing business influence in international treaty making). ↑
  153. Convention on International Interests in Mobile Equipment, Nov. 16, 2001, 2307 U.N.T.S. 285. ↑
  154. See Roy Goode, From Acorn to Oak Tree: The Development of the Cape Town Convention and Protocols, 17 Unif. L. Rev. 599, 599–601 (2012) (providing aims of Cape Town Convention). ↑
  155. See Mark J. Sundahl, The “Cape Town Approach”: A New Method of Making International Law, 44 Colum. J. Transnat’l L. 339, 345 (2006) (offering background on the default rules in security interests law). ↑
  156. Id. at 345–46. ↑
  157. See Sandeep Gopalan, Comment, Harmonization of Commercial Law: Lessons from the Cape Town Convention on International Interests in Mobile Equipment, 9 Law & Bus. Rev. Ams. 255 (2003) (discussing the role of the Cape Town Convention in harmonizing regulatory law for the aviation industry). ↑
  158. See Roy Goode, The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International Asset-Based Financing, 7 Unif. L. Rev. 3, 7–9 (2002) (describing the priority rules and international registry). ↑
  159. See id. at 7. ↑
  160. See Durkee, Business of Treaties, supra note 151, at 294 (describing how business actors were involved in drafting language and structure of the treaty as well as a ratification campaign); Goode, supra note 153, at 606 (noting that a business working group mounted a substantial campaign that proved indispensable to the development of the Cape Town Convention). ↑
  161. See Durkee, Business of Treaties, supra note 151, at 294; Goode, supra note 153, at 606. ↑
  162. See Durkee, Business of Treaties, supra note 151, at 295–96. ↑
  163. Convention on International Interests in Mobile Equipment (Cape Town, 2001) – Status, International Institute for the Unification of Private Law (UNIDROIT), https://www.unidroit.org/status-2001capetown [https://perma.cc/PL5L-UGDJ] (last visited Feb. 20, 2021). ↑
  164. See Gopalan, supra note 156, at 255. ↑
  165. Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
  166. Inside AWG: Who We Are, Aviation Working Group, http://www.awg.aero/inside-awg/who-we-are/ [https://perma.cc/ZU8T-4B7G] (last visited Jan. 31, 2021). ↑
  167. Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
  168. Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.aero/‌project/cape-town-convention/ [https://perma.cc/FC3F-AL6W] (last visited Jan. 31, 2021). ↑
  169. Id. ↑
  170. See id. ↑
  171. See, e.g., id. (encouraging states to ensure that any declaration under the Convention restricts preferred non-consensual liens and rights to those that are customary). ↑
  172.  Aviation Working Group, Self-Instructional Materials 15 (1st ed. 2014), http://awg.aero/wp-content/uploads/2019/10/Self%20Instructional%20Materials.pdf [https://perma.cc/DTW2-235D] (emphasis added). ↑
  173. Id. at 28 (emphasis added) (clarifying that the Convention may not override national law on remedies). ↑
  174. See id. ↑
  175. Id. at 19. ↑
  176. Id. at 28 (emphasis added). ↑
  177. Id. at 15. ↑
  178. Id. at Foreword. ↑
  179. Id. at Foreword. ↑
  180. Id. at 15. ↑
  181.  Cape Town Convention Compliance Index, Aviation Working Group, http://www.awg.aero/wp-content/uploads/2019/10/CTC-Compliance-Index-Website-updated-October-2019.pdf [https://perma.cc/36FY-CLA3] (last visited Feb. 21, 2021). ↑
  182. Id. (noting that the index is expected to come online in early 2020). ↑
  183. The Group has released a methodology summary, but this does not offer information as to how the Group defines the terms and intent of the treaty for the purposes of its assessment. See Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.‌aero/project/cape-town-convention/ [https://perma.cc/2ARS-99XD] (last visited Feb. 21, 2021). ↑
  184. Id. ↑
  185. Id. ↑
  186. Id. ↑
  187. Id. ↑
  188. See, e.g., Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 75, 87 (2017) (exploring, inter alia, debate about international law that applies to private sector lunar exploration); Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 37 (2017) (same, with an expanded focus on various outer space activities); Comm. on the Peaceful Uses of Outer Space, Rep. on Its Sixtieth Session, ¶¶ 227–37, U.N. Doc. A/72/20 (2017) (recording debate between nations in an international forum). ↑
  189. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. II, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty] (emphasis added). ↑
  190. See, e.g., Zachos A. Paliouras, The Non-Appropriation Principle: The Grundnorm of International Space Law, 27 Leiden J. Int’l L.

    37, 50 (2014) (“[A]s a matter of international law, the appropriation of any part of outer space . . . by private individuals is precluded by Article II of the Outer Space Treaty. Hence, any state that confers proprietary rights in outer space would commit an internationally wrongful act . . . .”); Int’l L. Ass’n, Space Law, in Report of the Fifty-Fourth Conference Held at The Hague 405, 429 (1971) (“[T]he draftsmen of the principle of non-appropriation never intended this principle to be circumvented by allowing private entities to appropriate areas of the Moon and other celestial bodies.”); Leslie I. Tennen, Enterprise Rights and the Legal Regime for Exploitation of Outer Space Resources, 47 U. Pac. L. Rev.

    281, 288 (2016) (“State recognition of claims to extraterrestrial property by its nationals is national appropriation ‘by any other means’ prohibited by Article II, no matter what euphemistic label is employed to mask the obvious.”). See generally Abigail D. Pershing, Note, Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today, 44 Yale J. Int’l L.

    149, 154–57 (2019) (gathering sources to argue that the non-appropriation principle was originally intended to be construed broadly and to unambiguously prohibit any appropriation of outer space resources). ↑

  191. See, e.g., Virgiliu Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership 48–58 (2009) (suggesting that the treaty intended to bar only national appropriation of outer space resources); Leslie I. Tennen, Towards a New Regime for Exploitation of Outer Space Mineral Resources, 88 Neb. L. Rev. 794, 799 (2010) (claiming that use of resources does not require appropriation of property, but can instead be based on a right to engage in a particular enterprise—enterprise rights, not ownership rights). See generally Julie Randolph, Fly Me to the Moon and Let Me Mine an Asteroid: A Primer on Private Entities’ Rights to Outer Space Resources, 59 For Defense, Dec. 2017, at 41, 43–47 (collecting sources). ↑
  192. See supra note 189. ↑
  193. See supra note 187 (legislative debates in the United States and at the United Nations Committee on the Peaceful Uses of Outer Space). ↑
  194. See infra notes 199–209 and accompanying text. ↑
  195. See Pollman & Barry, supra note 2, at
    385.

    ↑

  196. Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 40–41 (2017). ↑
  197. Id. ↑
  198. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 76 (2017) (statement of Bretton Alexander, Director of Business Development and Strategy, Blue Origin). ↑
  199. Id. (emphasis added). Alexander quite explicitly urged the U.S. government to shop around his industry’s favored interpretation of the Outer Space Treaty to international counterparts:

    I think it’s important for the U.S. government through the State Department to be talking internationally with its counterparts, particularly in the U.N. Committee on Peaceful Uses of Outer Space about what the Space Treaty, Outer Space Treaty, allows and how we’re interpreting that. It’s important for us as an industry to have the certainty that . . . it’s founded in the Outer Space Treaty, which basically say[s] that those resources are available to everybody so that when we go, let’s say, to the Moon and discover water ice there, we’re not saying now we own every piece of resource on the Moon and every bit of water ice on the Moon; we’re saying, you know, we are able to utilize what we are able to extract and be able to sell that and have property rights over that but not rights to the entire Moon.

    Id. (emphasis added). ↑

  200. Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 22 (2017) (statement of George Whitesides, CEO, Galactic Ventures). ↑
  201. Id. at 13 (statement of Robert Meyerson, President, Blue Origin). ↑
  202. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 23–35 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
  203. See Pollman & Barry, supra note 2, at 384–85 (describing “regulatory entrepreneurship” as advancing a business model on the prospect of legal change, and then pushing for that change)
    .

    ↑

  204. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 26 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
  205. See Mike Wall, Asteroid Mining May Be a Reality by 2025, Space (Aug. 11, 2015), https://www.space.com/30213-asteroid-mining-planetary-resources-2025.html [https://perma.cc/92C2-9PPN]. ↑
  206. Todd Bishop, Mining a $20 Trillion Asteroid? New Clues Emerge About Space Robot Startup, GeekWire (Apr. 19, 2012), https://www.geekwire.com/2012/mining-20-trillion-asteroid-clues-space-robot-startup/ [https://perma.cc/EVW9-W5WN] (reporting on plans announced by Planetary Resources Chairman Peter Diamandis in a TED talk to “go out and grab one of these [asteroids],” which he estimated to be “worth something like $20 trillion”). ↑
  207. Kenneth Chang, If No One Owns the Moon, Can Anyone Make Money Up There?, N.Y. Times

    (Nov. 26, 2017), https://www.nytimes.com/2017/11/26/science/moon-express-outer-space-treaty.html [https://perma.cc/2D4Q-FHUB] (reporting that investors included a co-founder of Google, a former chief software architect at Microsoft, and the Grand Duchy of Luxembourg). ↑

  208. Jamie Carter, A Japanese Startup is Set To Go Hunting for Ice . . . on the Moon, Techradar (Feb. 22, 2019), https://www.techradar.com/news/japanese-startup-set-to-go-hunting-for-ice-on-the-moon [https://perma.cc/5XHL-LSK2] (noting the company intends to “kick-start a new commercial space industry” by laying groundwork for other countries to engage in activities on the moon). ↑
  209. Id. (reporting that the company wants “to identify where water ice exists and map that out so that we can eventually learn how to use it as a resource . . . to create basic rocket fuel for spacecraft”). ↑
  210. Id. Another example is a UK startup called the Asteroid Mining Corporation, which seeks “to extract resources from asteroids to boost the Earth’s economy and kick start the Space Based Economy.” Our Values, Asteroid Mining Corp.
    ,

    https://asteroidminingcorporation.‌co.uk/our-vision [https://perma.cc/YP34-ZXAM] (last visited Feb. 21, 2021). The company is currently seeking investors and lobbying in the UK for introduction of legislation “clarifying” private rights over outer space resources. UK Space Resources Activities Bill, Asteroid Mining Corp.

    ,

    https://asteroidminingcorporation.co.uk/uk-space-resources-activities-bill [https://perma.cc/54NU-DRS7] (last visited Feb. 21, 2021). ↑

  211. International Institute of Space Law
    ,

    https://iislweb.org/ [https://perma.cc/TSR7-7BLY] (last visited Jan. 31, 2021). ↑

  212. Id. ↑
  213. International Institute of Space Law Directorate of Studies, Does International Space Law Either Permit or Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, and How Is This Relevant for National Actors? What Is the Context, and What Are the Contours and Limits of This Permission or Prohibition? 31 (Stephan Hobe ed., 2016), https://iislweb.org/docs/IISL_Space_Mining_Study.pdf [https://perma.cc/387R-5L3L] (industry group white paper on debate). ↑
  214. Id. at 30–31. ↑
  215. Id. at 31–35. ↑
  216. Id. at 35 (acknowledging that there must be some sort of societal benefit to commercial use but proposing creative understandings of how these societal benefits might accrue; for example, they could “flow to all sectors of society through spinoffs” or “a greater and deeper understanding of space”). ↑
  217. Tim Dorlach & Paul Mertenskötter, Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile’s Nutrition Label, 54 Law & Soc’y Rev
    .

    571 (2020). ↑

  218. See id. at 586–87. ↑
  219. Id. at 590–91. ↑
  220. Id. at 571. ↑
  221. Id. at 571, 583. ↑
  222. Id. at 585. ↑
  223. Id. at 586. ↑
  224. Id. at 586–87 (explaining that the Chilean health ministry launched the consultation procedure by giving notice of its draft implementing regulations to the World Trade Organization, as required by the WTO’s Technical Barriers to Trade Agreement). ↑
  225. Id. at 587. ↑
  226. Id. ↑
  227. Id. at 587 n.12. ↑
  228. Id. at 586. ↑
  229. Id. at 587, 587 n.12. ↑
  230. Id. at 587 (including the Trade-Related Aspects of Intellectual Property Rights Agreement and the Technical Barriers to Trade (“TBT”) Agreement). ↑
  231. Id. (opining that the nutrition label “would most likely survive a formal challenge”). ↑
  232. Id. at 590 (referring to TBT Article 2.4). ↑
  233. Id. ↑
  234. Id. at 591. The authors explain that other outlying interpretations include that the “TRIPS Agreement grants a property right in trademarks,” meaning that any regulation to restrict them would “effectively expropriate trademark holders and therefore violate TRIPS,” id. at 588, and that Article 2.2 of the TBT Agreement requires regulators to “affirmatively disqualify all existing alternative[]” regulations that may be less trade restrictive, rather than putting the burden of proof on any ultimate challenger to offer evidence of a suitable alternative that is less trade restrictive, id. at 590. ↑
  235. Id. at 591. ↑
  236. Id. ↑
  237. Id. at 591–92 (observing that these outlying interpretations appeared in submissions by foreign governments to Chile’s public consultation process, and in submissions to the TBT Committee’s Specific Trade Concerns mechanism). ↑
  238. Id. at 593. ↑
  239. Galit A. Sarfaty, Translating Modern Slavery into Management Practice, 45 Law & Soc. Inquiry 1027, 1027 (2020) (noting that these jurisdictions include, inter alia, the United Kingdom, California, and Australia). ↑
  240. Id. ↑
  241. Id. at 1031–32 (footnotes omitted). ↑
  242. Id. at 1032. ↑
  243. Id. at 1033. ↑
  244. Id. at 1035. ↑
  245. Id. at 1036. Safarty notes that some governments do provide a measure of guidance on how to define this norm and are now being pushed to provide more. For example, the United Kingdom agreed to offer more guidance on what must be disclosed. Id. at 1047. ↑
  246. Id. at 1036. ↑
  247. See id. at 1029 (noting that modern slavery is undefined both under international law and within the legislative definitions). ↑
  248. Id. ↑
  249. Id. at 1028–29. ↑
  250. Id. at 1043. ↑
  251. Id. at 1045. ↑
  252. See id. at 1039 n.6 (noting that Sedex acknowledges the ambiguity in authoritative international sources for the “modern slavery” norm like guidance by the International Labor Organization). ↑
  253. Id. at 1039. ↑
  254. Id. ↑
  255. Id. ↑
  256. Id. ↑
  257. Id. at 1030. ↑
  258. Id. ↑
  259. Id. at 1045. ↑
  260. Id. at 1029. ↑
  261. Anthea Roberts, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 Harv. Int’l L.J. 1, 6 (2014) [hereinafter Roberts, State-to-State]; see also Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 Am. J. Int’l L. 179, 179 (2010) (“As investment treaties create broad standards rather than specific rules, they must be interpreted before they can be applied. Investor-state tribunals have accordingly played a critical role in interpreting, hence developing, investment treaty law.”). ↑
  262. Roberts, State-to-State, supra note 260, at 11–13. Investment treaties include Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). See id. ↑
  263. Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 Am. J. Int’l L.

    45, 76–77 (2013) [hereinafter Roberts, Clash of Paradigms] (arguing that because “investment treaties traditionally coupled short and broadly worded obligations with strong enforcement mechanisms . . . (for example, the promise to treat investors fairly and equitably) . . . the tribunal charged with interpreting and applying the standard is given wide discretion”). ↑

  264. Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, supra note 260, at 179 (finding that the jurisprudence of the tribunals “resembles a house of cards built largely by reference to other tribunal awards and academic opinions, with little consideration of the views and practices of states in general or the treaty parties in particular”); Roberts, Clash of Paradigms, supra note 262, at 77 (noting how this “lead[s] to much investment treaty law being developed through a body of de facto precedents”). ↑
  265. Anthea Roberts, Recalibrating Interpretive Authority
    1

    (Columbia FDI Persps., Working Paper No. 113, 2014), http://ccsi.columbia.edu/files/2014/01/FDI_No113.pdf [https://perma. ‌cc/A8BK-NWQF] (“As a result, much of the content of investment treaties was forged by tribunals, often in ways going beyond the intentions of the treaty parties.”). ↑

  266. See, e.g., Julian Arato, Corporations as Lawmakers, 56 Harv. Int’l L.J
    .

    229, 247 (2015) (finding that the effort of multinational corporations to secure protection of favorable investment terms “has been helped along, to be sure, by a great many favorable interpretations of the broad and malleable provisions incorporated in BITs and FTAs”); Roberts, State-to-State, supra note 260, at 25 (noting concerns that “investor-state tribunals were interpreting broad and vague treaty language in ways that were overly protective of investors’ commercial interests”). Note that the investment disputes offer a unique context in international law in which private parties may bring disputes against nations directly. See generally Roberts, State-to-State, supra note 260, at 2 (reviewing these circumstances). ↑

  267. Roberts, State-to-State, supra note 260, at 25 (also noting that arbitrators were “selected by the disputing parties, rather than the treaty parties, which meant that the tribunals often were not conscious that they were agents of the treaty parties” in performing these interpretive functions). ↑
  268. Id. ↑
  269. Id. at 25 n.111 (paraphrasing Gus Van Harten, Investment Treaty Arbitration and Public Law 96–99 (2007)). ↑
  270. Id. (quoting Robert O. Keohane, Andrew Moravcsik & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457, 459 (2000)). ↑
  271. Roberts, Clash of Paradigms, supra note 262, at 78 (characterizing these more precise treaties as “second generation” investment treaties, “characterized by states seeking to recalibrate this balance of power by increasing the specificity of their treaty commitments and reasserting their interpretive rights as treaty parties”).

    The fact that investment treaty arbitration offers considerable room for interpretive contests by the litigants has also inspired non-governmental organizations and respondent states to try to introduce outside norms into the interpretive process, demonstrating that the interpretations that prevail are products of lively contests for meaning. See, e.g., Stephen W. Schill, The OECD Guidelines for Multinational Enterprises and International Investment Agreements: Converging Universes, in 40 Years of the OECD Guidelines for Multinational Enterprises 63, 70–76 (Nicola Bonucci & Catherine Kessedjian eds., 2018) (exploring how respondent states and non-governmental organizations as amici have raised environmental, human rights, and corporate accountability standards in investment arbitrations to try to convince investment tribunals to interpret investment treaty obligations in reference to those standards). ↑

  272. Michael L. Barnett, One Voice, But Whose Voice? Exploring What Drives Trade Association Activity, 52 Bus. & Soc’y 213, 221 (2012). ↑
  273. See id. at 213–14 (describing trade associations). See generally Sarah Dadush, The Internal Challenges of Associational Governance, 111 AJIL Unbound 125, 125 (2017) (analyzing relationships between trade associations and their members). ↑
  274. Barnett, supra note 271, at 214 (internal citation omitted). ↑
  275. Dorlach & Mertenskötter, supra note 216, at 600. ↑
  276. Id. ↑
  277. See discussion supra at Subsection II.A.1. ↑
  278. This would be a productive question for further research. After all, “we have little systematic understanding” of trade associations and “[t]he lack of research . . . is lamentable.” Barnett, supra note 271, at 214. ↑
  279. See discussion supra at Subsection II.A.4. ↑
  280. Sarfaty, supra note 238, at 1028. ↑
  281. Id. at 1029. The impact of platform businesses is an emerging area of scholarly attention; this case study shows that one productive target for further analysis is their impacts on law through legal interpretation. See id. ↑
  282. See Moloo, Subsequent Party Conduct, supra note 72, at 57–78 (evaluating what subsequent conduct is relevant to treaty interpretation according to the Vienna Convention); Restatement (Third) of the Foreign Relations Law of the United States
    § 326 (

    Am. L. Inst.

    1987) (

    instructing U.S. courts to

    “

    give great weight to an interpretation made by the Executive Branch”); Johnstone, Interpretive Communities, supra note 99, at 385 (defining the principal interpretive community for a treaty is “interpreters directly responsible for the conclusion and implementation of a particular treaty”). ↑

  283. See Kishanthi Parella, The Information Regulation of Business Actors, 111 AJIL Unbound 130, 130 (2017) (finding that business actors associate with reputable organizations as they seek to avoid negative reputational consequences). ↑
  284. See supra Subsection II.A.1. ↑
  285. See Sarfaty, supra note 238, at 1048 (noting that the disclosures are meant to allow stakeholders to “evaluate and compare corporate performance”). ↑
  286. Pollman & Barry, supra note 2, at 384–85. ↑
  287. Note that this spectrum is not intended to suggest that some strategies are more effective than others, but merely to simplify and organize a wide range of activity. ↑
  288. Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 3(b). ↑

  289. Aust, supra note 58, at

    241

    . ↑

  290. Gardiner, supra note 58, at 253. Subsequent practice is also “well-established in the jurisprudence of international tribunals.” Kasikili/Sedudu Island (Bots./Namib.), Judgment, 1999 I.C.J. 1045, ¶ 49 (Dec. 13) (quoting Int’l L. Comm’n, Reps. on the Work of Its Seventeenth and Eighteenth Sessions, U.N. Doc. A/CN.4/SER.A/1966/Add.1, ¶ 15 (1966)). ↑
  291. Gardiner,

    supra note 58, at 253 (noting that subsequent practice in treaty interpretation “is one of the features of the Vienna rules which marks out a difference from the approach taken in some legal systems to interpretation of legal texts of purely domestic origin”). ↑

  292. Wang, supra note 29, at 834–35. ↑
  293. Id. at 879. ↑
  294. Outer Space Treaty, supra note 188 (entered into force Oct. 10, 1967). ↑
  295. Hakimi, supra note 115, at 1492. ↑
  296. Alter, supra note 147, at 30–31 (tracing a variety of forms of backlash against the international liberal order). ↑
  297. See Moloo, Changing Times?, supra note 35, at 261 (suggesting that treaty interpretation can adapt treaties to changing circumstances). ↑
  298. See Durkee, supra note 31, at 1788–96 (exploring proposals for lobbying reform by the Organisation for Economic Co-operation and Development and other sources). ↑
  299. See supra Subsection II.A.1. ↑
  300. See supra Subsection II.A.2. ↑
  301. See supra Subsection II.A.3. ↑
  302. A Private Sector View of International Trade Negotiations, 91 Am. Soc’y Int’l. L. Proc. 89, 91 (1997) (remarks of Maureen Smith, Vice President for International Affairs, American Forest and Paper Association). ↑
  303. See Durkee, supra note 31, at 1742. ↑
  304. Id. at 1759 (citing Kenneth Anderson, Global Governance: The Problematic Legitimacy Relationship Between Global Civil Society and the United Nations 16 (Am. Univ. Wash. Coll. L. Rsch. Paper Series, Working Paper No. 2008-71, 2013), https://ssrn.com/abstract=1265839 [https://perma.cc/PE76-5ZL8] (for a description of this position)). ↑
  305. Durkee, supra note 31, at 1759. ↑
  306. See Tobin, supra note 26, at 1–4 (recognizing that public interest non-governmental organizations participate in interpreting human rights treaties; proposing ways for them to do so more effectively). ↑
  307. Pollman & Barry, supra note 2, at 384–85. ↑
  308. See supra Subsection II.A.2. ↑
  309. See id. ↑
  310. See supra Subsection II.A.1. ↑
  311. See, e.g., Abbott & Gartner, supra note 129, at 26 (examining these questions); Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L.J. 1490, 1498 (2006) (same); Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 18 (2005) (same). ↑
  312. See, e.g., Moravcsik, supra note 31, at 513 (explaining liberal theory in international relations); Brewster, supra note 31, at 502 (showing how interest group lobbying at the national level shapes national approaches to international law); see also Benvenisti, supra note 31, at 170–72 (conceiving of the sovereign state as an agent of small interest groups). ↑
  313. See supra notes 133–42 and accompanying text. ↑
  314. See, e.g., W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 575–77 (2007) (offering a brief primer on the New Haven School approach). ↑
  315. See, e.g., Ralf Michaels, Global Legal Pluralism, 5 Ann. Rev. L. & Soc. Sci. 243, 243–45 (2009) (reviewing literature). ↑
  316. Halliday & Shaffer, supra note 129, at
    3, 11

    . ↑

  317. See generally International Law as Behavior (Harlan Grant Cohen & Timothy Meyer eds., 2021) (highlighting a “behavioral approach” to legal scholarship); Hakimi, supra note 115, at 1489 (taking a process-based approach to customary international law); Wang, supra note 29, at 828 (analyzing treaty implementation as a product of domestic interactions); Harlan Grant Cohen, International Precedent and the Practice of International Law, in Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism

    172, 174–75 (Michael A. Helfand ed., 2015) (taking a “communities of practice” approach to accounts of international precedent); Yahli Shereshevsky, Back in the Game: International Humanitarian Lawmaking by States, 37 Berkeley J. Int’l L. 1, 4 (2019) (showing how states sometimes adopt non-state actors’ strategies to influence lawmaking processes); Susan Block-Lieb & Terence C. Halliday, Global Lawmakers: International Organizations in the Crafting of World Markets 13 (2017) (examining the UN Commission on International Trade Law as the “site of struggles for influence and power”). ↑

  318. See, e.g., Anthea Roberts, Is International Law International?

    1

    (2017) (examining how “different national communities of international lawyers construct their understandings of international law”); Lianne J.M. Boer & Sofia Stolk, Backstage Practices of Transnational Law, in Backstage Practices of Transnational Law 1, 2 (Lianne J.M. Boer & Sofia Stolk eds., 2019) (exploring the “practices, habits and routines that make up the lives of those involved in the field of transnational law”). ↑

Why BIPOC Fails

Introduction

Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice.1 1.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V].Show More Last year and still now, the global pandemic has placed additional stress on communities of color, which have been disproportionately affected by and infected with COVID-19.2 2.Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2].Show More While they were threatened with loss of life from disease, Black men and women continued to be killed at the hands of police and unchecked vigilantes.3 3.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020).Show More The question thus became whether to stay home to stay safe from a deadly virus or take to the streets to demand safety from state-sanctioned violence. The result was the largest mass protest in U.S. history, with thousands of Black and Brown people masked up fighting for their lives and thousands of allies standing and shouting beside them.4 4.Buchanan, Bui & Patel, supra note 1.Show More

This level of activism clearly demonstrates that change is both needed and long overdue. The response from the corporate world,5 5.Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT].Show More sports teams and celebrity athletes,6 6.Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT].Show More institutions of higher education,7 7.Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6].Show More and people throughout the world8 8.Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium.Show More has been largely supportive in terms of recognizing the need for a purposeful commitment to antiracism. One unanswered question asks whether these cries for change could also benefit from an update in the language and terminology that advocates, allies, and academics use when discussing issues of race and racism.9 9.This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author).Show More

At this moment of reckoning, we have the opportunity and responsibility to reexamine our language and the terms we use to name and claim racism and resistance. While we previously settled for small diversity gains, many now push for greater inclusion, equity, and belonging as well as broader antiracist principles demanding action.10 10.See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies).Show More In the context of higher education, for example, law schools have relied for decades on educational diversity as a rationale for affirmative action—a priority that ignores racism, equity, and representation.11 11.Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011).Show More Yet in 2020, five Black women leaders spearheaded the Law Deans Antiracist Clearinghouse Project to guide the many law schools issuing faculty resolutions committing themselves to becoming (more) antiracist as a signal of more meaningful progress in legal education.12 12.For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX].Show More A change in terminology does more than add to the lexicon; it also signals a change in priorities for those working towards racial justice. Should there be additional language updates that signal our updated priorities?

Since roughly May 2020, there has been interest within some circles in the new term “BIPOC”—referring to those who are Black, Indigenous, and People of Color.13 13.Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20.Show More The term first appeared online in 2013 and expanded on social media when taken up mainly by educated elites who see themselves as progressive voices on issues of race or ethnicity, regardless of their own identity backgrounds.14 14.Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994).Show More However, what has been missing entirely is a wider conversation about usage of the term—why it may be necessary to update language, how it can be a tool in anti-subordination efforts, and whether this particular term is the most effective at this particular time. New language should not take over without community engagement and deep reflection.

While language is key to anti-subordination, BIPOC damages those efforts rather than being helpful, especially among those searching for new language addressing contemporary issues of race and racism. New terms are useful and should be utilized in antiracism efforts; yet BIPOC itself does a disservice to communities of color and efforts to dismantle systems of racial privilege. Centering particular groups only in name ultimately furthers their marginalization because they remain excluded in fact though referenced in the term, erasing the power that comes from participation and inclusion. BIPOC begins with the premise that we should always center two particular racial groups—Black and Indigenous—within the people of color category, though these communities are not always at the center of the issue being discussed. While concentrating on these two groups may make sense in particular contexts, it cannot be true that every example of race and racism should center Black and Indigenous voices or experiences.

This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match our terms to the particular groups at the center of those priorities.15 15.The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22.Show More This will mean aggregating groups at times and naming them separately at others; whether finding community through unity or standing separately to highlight distinctions, either of these options is better than BIPOC. Particular examples showcase the failures of BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts.

The Essay begins by outlining the relationship between language and anti-subordination, explaining why words matter as an act of resistance. Part II explores the benefits of unity between groups, resulting in pan-racial umbrella communities such as “people of color” and “women of color” that provide greater strength and solidarity to groups that may be distinct but can nevertheless stand together under one umbrella. Part III provides three initial rationales for why BIPOC is not the best term for our times, as well as a series of examples showing how BIPOC is a misleading representation of communities of color in various contexts. Together, these add evidence to the claim that allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.

I. The Language of Anti-Subordination

Language has a direct connection to subordination, and therefore anti-subordination. “Anti[-]subordination theorists contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification,” as is the case currently and has been historically in the U.S.16 16.Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976).Show More Change, they argue, depends in part on law “reform[ing] institutions and practices that enforce the secondary social status of historically oppressed groups.”17 17.Balkin & Siegel, supra note 16.Show More Often, the law follows broad social trends demonstrating change, rather than being a leader in those efforts.18 18.See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021).Show More

Language, on the other hand, is often the leader, providing an opportunity to rethink and reconceptualize ingrained concepts to transcend original meanings using new terms coined by activists and others on the front lines of change. Clearly, language itself (like race) is both socially constructed and fluid—constantly changing, shifting, and evolving. When using language and especially when crafting new terms to think about race, racism, and resistance, it is therefore critically important that racial categories and terminology are grounded not only in history, but in contemporary context.19 19.See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019).Show More Furthermore, changes in terminology can be confusing to outsiders (meaning anyone not referenced by the term) and are especially important for allies and others who are eager to support anti-subordination efforts without always knowing which terms or words are currently preferred.

Consider the reclaiming of dyke in the LGBTQ+ context—an opportunity for women oppressed and maligned for being lesbians to reinvent the term, using their claim on language to share pride in how they name and refer to themselves.20 20.Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016).Show More Similarly, recent interest in adopting crip as an identity moniker related specifically to disabled people seeks to de-stigmatize a term long used to denigrate those who have been “othered”21 21.For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969).Show More and instead reformulate it as a powerful identity marker uniting people around shared experiences, including resistance to assimilation.22 22.See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021).Show More

This reclaiming and resistance in language is similarly evident in the context of race. Some scholars have even called for a new academic focus, whether called raciolinguistics or LangCrit, to study the interplay of race, racism, and language.23 23.H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, inRaciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014).Show More Understanding that “racial identities can shift across contexts” means that we need new language to take account of those shifts over time.24 24.Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW].Show More More dramatically, scholars and others must recognize “the central role that language plays in processes of racialization,” and act accordingly—working to shape language as a form of anti-subordination.25 25.Id.Show More

There have been many such efforts over time. The shifts and changes and preferred terms of Negro, Colored, Black, and African American are less a signal of evolution and progress and more an opportunity to push back against stereotypes or expectations associated with various terms at various times—since language, like race, is fluid.26 26.See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991).Show More Like the reinvention of the terms dyke and crip, Black youth reclaiming the N-word is a prime example of a racial group that took language used to oppress them and turned it into a powerful way to reference “solidarity, censure, and a proactive stance that seeks to bring about positive change.”27 27.Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012).Show More

The naming of intersectionality also ushered in transformative change in the context of the combination of race and other identity characteristics.28 28.See Crenshaw, supra note 16, at 140 (coining the term).Show More Whether we call it “multiple consciousness, cosynthesis, holism, interconnectivity, [or] multidimensionality,” the revolutionary idea that intersecting identity characteristics define and limit us in various contexts remains essential to anti-subordination.29 29.Wing, supra note 16, at 1, 7.Show More The concept of intersectionality draws from the work of Kimberlé Crenshaw and other legal scholars referring to those with multiple devalued identity characteristics.30 30.See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment23 (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002).Show More These Critical Race Theorists argue that those operating at the “intersection of recognized sites of oppression” along multiple domains suffer negative effects based on each as well as all of these identity markers.31 31.Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017).Show More

Going a step further, we can specifically consider raceXgender identity, which encompasses people whose race intersects with their gender to create not additive (race plus gender) but compounded effects based on identification with two marginalized groups.32 32.Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019).Show More There are various intersectional combinations even in the race context that could be salient or even essential depending on the arguments being made or issues at hand—including raceXsexual orientation, raceXclass, and raceXage.33 33.Sandahl, supra note 22.Show More These linguistic changes signify the movement to antiracism.

The push for antiracism itself reflects an update in both language and priorities, signaling a shift from protecting diversity to promoting broader action-oriented change. In previous years, advocates were steadfastly focused on promoting racial diversity to advance racial justice. To that end, institutions of higher learning argued in court that admitting a racially diverse student body furthered students’ academic and professional outcomes.34 34.Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II),136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019).Show More Those making “the business case for diversity” in the corporate world recognized and touted the connection between a company’s financial performance and its level of diversity along various metrics.35 35.Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9].Show More The military even asserted that diversity among the troops and leaders of its various branches is a necessary ingredient for national security.36 36.Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”).Show More

In the past decade, interests in diversity have broadened to accentuate inclusion, equity, and belonging.37 37.Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author).Show More Using the well-litigated and high profile context of higher education, previous emphasis was on admitting students from different backgrounds in an effort to increase racial diversity on campus for the ostensible purpose of improving the quality of education for all students—which truly reflected an interest in admitting students of color to improve the educational experiences of whites.38 38.See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3.Show More More recently, scholars and advocates have shifted their perspective to consider not only who is admitted but also the quality of the interactions and experiences of students of color once on campus.39 39.See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26].Show More This consideration not only of diversity but also of inclusion—“a cultural and environmental feeling of belonging” related to members feeling “valued, respected, accepted and encouraged to fully participate”—thus highlights an interest beyond diversity.40 40.Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV].Show More Similarly, recent efforts to promote equity and belonging signal the importance of moving beyond diversity to consider broader anti-subordination and even antiracist principles.41 41.Deo, supra note 10.Show More

While the commitment to diversity and the rationales behind it remain intact, and that commitment has expanded to include greater inclusion, equity, and belonging, there has also been a shift toward pursuing the more anti-subordination and justice-oriented concept of antiracism. As scholar and author Ibram X. Kendi shares in his trailblazing book, How to Be an Antiracist, “[T]here is no neutrality in the racism struggle…. One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an antiracist.”42 42.Ibram X. Kendi, How to Be an Antiracist 9 (2019).Show More In this way, Kendi ties personal preferences to praxis, a central tenet of Critical Race Theory emphasizing that racial justice ideas must transcend the page to inspire “theory-informed action.”43 43.Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010).Show More Thus, Kendi asserts that “being an antiracist requires persistent self-awareness, constant self-criticism, and regular self-examination.”44 44.Kendi, supra note 42, at 23.Show More Language itself is critical to the antiracist endeavor, including promoting or resisting “a whole vocabulary of old and new words—like ‘cultural wars’ and ‘stereotype’ and ‘implicit bias’.”45 45.Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ].Show More

Language, both old and new, can also be used to group together disparate groups who nevertheless share common experiences, as discussed below for people of color and other groups. Yet with a goal of anti-subordination in mind, we must push against groupings made purely for convenience’s sake, those that diminish or erase minority perspectives, or others that may seem initially useful or even progressive but in actuality serve to subtly reinforce entrenched norms and retrench existing hierarchies.

II. When Unity Leads to Erasure

Often language assumes unity—it creates the ability to bring people together, especially those who have shared identity characteristics. Creating terms to identify a class of heretofore disparate groups serves to bring them together under a new more inclusive umbrella. But what goes missing when groups band together?

Historically, the purpose of these umbrella groups has been to unite people with shared experiences for mutual political and social benefits.46 46.Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules.Show More People from distinct backgrounds recognized that there was strength in numbers, and so sought out others who shared some (though not all) of their identity characteristics in order to work toward collective change.47 47.Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021).Show More Two of these groups are briefly introduced here to provide context for BIPOC.48 48.The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9.Show More

One example is the term people of color, which bands together those who are Black, Latinx, Asian American, Native American, Arab American, and other non-whites.49 49.Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”).Show More Pan-ethnic groups that nevertheless have disparate ethnic groupings, also have the capacity to incorporate intersectional identity drawing from race (e.g., Asian American) and ethnicity (e.g., Korean American).50 50.See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992).Show More

Finding unity within raceXgender references the larger grouping of women of color, a community comprised of women who are also people of color.51 51.Wing, supra note 29, at 7.Show More By highlighting intersectional raceXgender, the women of color grouping centers the experience of those who tend to be marginalized within both communities of people of color (where men of color have more privilege and power) and women (where white women have more privilege and power).52 52.See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991).Show More

Recently joining the conversation about race and terminology is BIPOC, an acronym for Black, Indigenous, and People of Color.53 53.Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46.Show More BIPOC was popularized on social media, with some educated elites adopting it and others rejecting its inherent exclusivity, especially without much community engagement.54 54.Garcia, supra note 13.Show More Unlike other terms that grew in usage after months or years of community reflection, BIPOC seemingly erupted on the scene and was taken up by academics and the media in summer 2020 as people flocked to the streets to demand an end to police violence targeting the Black community.55 55.Id.Show More While it is essentially a synonym for people of color, advocates use it to intentionally foreground “Black” and “Indigenous,” arguing that these groups are both foundational to understanding the racial history of the U.S. and often not given the recognition they are due within the larger people of color umbrella.56 56.The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7].Show More The term purposefully creates hierarchies between people of color groups, consciously highlighting the two “to acknowledge that not all people of color face equal levels of injustice.”57 57.Clarke, supra note 56.Show More Thus advocates use BIPOC to further a political purpose: to highlight the experience or agenda of Black and Indigenous people as essential, even though they are part of the overall people of color community. However, it is unclear whether changing the label actually creates a commitment to those groups or simply signals change without meaningful progress.

One common phenomenon between each of these terms—people of color, women of color, and BIPOC—is that by striving for collective unity, distinct groups become less visible. For instance, certain groups within the people of color category are routinely marginalized within the umbrella based on their low visibility or representation, including Filipinos and Puerto Ricans (who also tend to be marginalized within their respective pan-ethnic Asian American and Latinx groups).58 58.See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity).Show More Additionally, male privilege results in the priorities and voices of women of color sometimes being excluded from the larger people of color community (just as they tend not to be prioritized within the larger women’s movement that focuses primarily on white women).59 59.Wing, supra note 16, at 7; Harris, supra note 52, at 585.Show More Women from particular groups within the women of color community can similarly be marginalized or not prioritized, including queer women and Native American women, whose experiences tend to be overlooked within the larger women of color whole.60 60.See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ].Show More

BIPOC is purposeful and unapologetic about this exclusion. Because BIPOC purposefully and by definition centers two particular groups (Black and Indigenous), all of the other non-white groups within the fold are marginalized by design, grouped together in the leftover people of color section of BIPOC. Yet Black and Indigenous people are not at the center of every contemporary racial issue. Furthermore, centering these groups in name when they may be excluded from the data or the issue at hand relegates their importance to the periphery of power, signaling disinterest in their actual inclusion.

III. The Failures of BIPOC

The BIPOC term purposefully highlights two groups within the people of color community—Black and Indigenous.61 61.Garcia, supra note 13.Show More Grouping these two together at the exclusion of others is absolutely appropriate in the rare instances where both groups are at the center of the discussion and the data. Generally, however, doing so not only is incorrect but does damage to both the highlighted communities and those that are pushed to the periphery. This Part first provides some theoretical reasons why the BIPOC term does a disservice to various communities of color and then applies theory to practice by examining a variety of contexts in which BIPOC is clearly not the best term for the case.

A. Why BIPOC Fails, in Theory

Those who have been using BIPOC do so in order to show their value and appreciation for Black and Indigenous people even beyond other groups in the people of color community.62 62.The BIPOC Project, supra note 53.Show More These two populations, that have suffered horrifying atrocities and been brushed aside throughout U.S. history, are purposefully pulled to the front. Yet highlighting them in name in every instance referencing race or racism does not necessarily mean their priorities or interests are being represented; sometimes, these two groups are not even relevant to the matter at hand. There are a number of questions to consider before using BIPOC, the answers to which reveal that prioritizing use of the term in all contexts related to communities of color does more harm than good when pursuing antiracist efforts more generally.63 63.The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N].Show More

1. Is BIPOC purely symbolic?

Foregrounding the Black and Indigenous communities within people of color is symbolically significant as it indicates the importance of two groups that have long been sidelined in the United States. However, moving two groups to the front and naming them specifically does not have substantial meaning; foregrounding these groups in name only is what Critical Race Theorist Derrick Bell would call a purely symbolic gesture that may pacify calls for change without making any meaningful progress—and thereby ultimately support the status quo of racial inequities even between communities of color.64 64.See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies).Show More Today, we might call this virtue signaling—using words or actions not for the purpose of moving the needle toward greater progress, but instead primarily to highlight one’s own moral superiority in taking a stance.65 65.Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20.Show More

Data collection on Native Americans is one common and unfortunate example. If there is little or no data on the Native American population for any given project ostensibly about people of color generally and scholars nevertheless report on “the BIPOC experience,” they are actually naming Indigenous communities as central to a project while simultaneously excluding them altogether from the substance.66 66.Sutton, supra note 60.Show More This symbolic inclusion thus suggests that Native populations are central to whatever inquiry is before us but does not insist or even notice whether anyone actually includes them, let alone center their experiences, perspectives, interests, or priorities. Highlighting groups in name only is thus a greater disservice even than excluding them in fact and in name, because it suggests an upheaval of the status quo while actually serving to support it. Centuries of oppression have been sustained on just this form of “progress” that suggests change in name while maintaining ongoing inequities. There is truth to the accusation that unity can lead to erasure, as discussed earlier, but foregrounding a group in name only is pure virtue signaling, which is even more destructive for long-term equity goals.

2. Should every inquiry center Black and Indigenous communities?

What little information exists about the origins and development of BIPOC suggests that the two groups are highlighted for two main reasons. Proponents of BIPOC stress that Black and Indigenous communities are underscored because they have a foundational relationship to race and racism in the United States; in addition, they argue that not all communities of color have suffered equally, so those who have endured the most should be put first.67 67.See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56.Show More

These rationales rely on two problematic assumptions that, when investigated even briefly, reveal a shaky foundation. First, it is unfounded and counterproductive to assert that the harms of one group are paramount while others are relatively less important; doing so engages in the “Oppression Olympics,” which is “an evocative term to describe intergroup competition and victimhood.”68 68.Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011).Show More Ranked suffering as a reason to support the BIPOC term relies on comparing the relative oppression of all racial/ethnic groups in the U.S. and concluding that Black and Native peoples should be prioritized in name because they have suffered greater harm than all others. Those who use BIPOC embrace Oppression Olympics by crowing the winners and naming them first because they have suffered the most. This is dangerous for individual groups—both those whose oppression is erased and those who are the supposed winners—as well as destructive for antiracism efforts generally.

Second, even if all advocates agreed that Black and Indigenous people have historically suffered worse and more significant harms than any other racial/ethnic group, that may not justify centering them now by name when referencing all people of color today. There are clear instances of racism that have little or no direct impact on Black or Indigenous communities. At those times, the experiences of people from those communities should not be centered, just as those who are most affected should not be sidelined.69 69.Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B.Show More Using the BIPOC term to reference past harms, especially those endured by Black and Indigenous peoples, could be useful; but assuming a need to prioritize in every current conversation about race, these two groups that have suffered unspeakable historic harms and continue to face oppression today—as do other groups—is misguided. The purposeful sidelining of Latinx, Asian American, Arab American, and other communities of color does not signal progress toward racial justice. Instead, marginalization of these groups promotes racial triangulation, the purposeful hierarchical placement of Asian Americans (and perhaps others) between Black and white with the effect of dividing communities of color and diluting their collective power.70 70.Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999).Show More Rather than feed into that structure, attention to intersectional characteristics and especially recognizing similarities between disparate groups and drawing strength and solidarity from them may promote antiracism, help ameliorate past wrongs, and “ultimately help[] us overcome the Oppression Olympics.”71 71.Id.; Hancock, supra note 68, at 4.Show More

3. Does a historical focus promote contemporary antiracism?

There is no doubt that the foundations of race and racism in the U.S. draw directly from the enslavement of Black people and the attempted genocide of Indigenous peoples. At the same time, race and racism are constantly evolving, with racial projects shifting over time and racial formation always in flux.72 72.Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015).Show More Centuries of oppression against people of color have revealed various contexts in which even the law has been used to subjugate communities of color in order to preserve power in the hands of the white male elite.73 73.The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress).Show More Prioritizing historical discrimination, even chapters as atrocious as slavery and genocide, may not fit with every current racial project or application. At times when there are parallels, these should be noted and highlighted. Drawing a connection to historical atrocities may even reveal the ways in which certain efforts are truly contemporary avatars of age-old racism or discrimination.

Yet different groups today also face different pressures. Although contemporary acts of oppression may not rise to the level of past horrors, they are independently horrific and not necessarily derivative of past atrocities. Just as more covert bias has replaced overt oppression in many acts of contemporary discrimination, racism remains in spite of its shifting form.74 74.Omi & Winant, supra note 72, at 39­–46.Show More Current oppression may not tie directly to slavery or genocide, but manifests in the form of violent hate crimes and xenophobic dehumanizing immigration policies. History will always provide significant context for contemporary racism, but it should not define (in name or otherwise) current racial challenges or acts of racial resistance.

B. When BIPOC Misses the Mark, in Practice

In addition to the broad strokes outlined above illustrating the theoretical limitations of BIPOC, the term also distorts the realities of communities of color in practice. In various instances, using the term BIPOC as a synonym for people of color is not just incomplete or imperfect, but also substantively, empirically, and historically incorrect as well as detrimental. This Part introduces a series of contemporary racial contexts where the name BIPOC, if used, would do more harm than good.75 75.The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9.Show More Under these examples, the term itself does not fit the data/community/conclusion under discussion. In these instances, it is better to use the term people of color, or in other cases to draw attention to the community of women of color, or in still other situations to name the particular race or even raceXgender groups most affected rather than foist them inappropriately under a BIPOC umbrella. Clear examples of how BIPOC can be misleading, confusing, or otherwise damaging are explored next.

1. Managing COVID-19

Discussing the effects of COVID-19 “on BIPOC communities” pretends that we have statistics on Native Americans, when in truth it centers the group in name while ignoring their omission from the data. Communities of color as a whole, and Black and Brown communities in particular, have been unduly impacted by the effects of COVID-19.76 76.Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA].Show More The intersection of race and class is especially salient here as people of color communities with fewer economic resources have had a disproportionate share of infections, hospitalizations, and deaths.77 77.Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”).Show More While those in the Black and Latinx communities have suffered grievous harm, the pandemic may be wreaking even greater devastation on Native American populations, although we do not have reliable data to confirm this conclusion.78 78.Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN].Show More Current research suggests that “Native Americans and Alaskan Natives are four times more likely to be hospitalized from COVID-19.”79 79.Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d.Show More In the past few months, the media has highlighted how some Native American communities have successfully vaccinated virtually all members,80 80.See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N].Show More while others struggle to reach the undecided.81 81.Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F].Show More There is significant misinformation and missing information.

Researchers do know that COVID-19 “has taken a disproportionate toll on many Indigenous communities in the United States,” yet the “full impact” of the disease on Native Americans remains unclear based on “racial misclassification and the exclusion of Indigenous communities from data sets and analyses used to make health policy decisions.”82 82.Wade, supra note 78.Show More Using BIPOC would not only be incorrect but also intentionally misleading, as the language implies that Native Americans are central to the data, when in fact they are missing. Ideally, public officials would collect that data and report it along with data on other racial/ethnic groups, but in the absence of data on Native Americans, it is clearly better to acknowledge that the group is not included rather than pretend they are by foregrounding them in name only. The data and information we do have suggest that culture, tradition, following the example of elders, and linguistic reasons are driving vaccine uptake; none of these seem critical for efforts to gain vaccine trust in the Black community, negating the need to group these communities together.83 83.Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80.Show More

Another group disproportionately affected by the coronavirus is Filipino nurses—not nurses as a whole, not people of color generally, not even Filipinos as a group, but Filipino nurses specifically.84 84.National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts.Show More As of September 2020, thirty-two percent of the registered nurses (RNs) who had died of COVID-19 were Filipino, although Filipinos comprise just four percent of RNs in the U.S.85 85.Id. at 5.Show More Centering Black and Indigenous populations in this conversation—when even a majority (fifty-four percent) of RNs of color who have died of COVID-19 are Filipino—does a disservice to Filipinos by rendering them invisible, lumping them into “other people of color,” while highlighting Black and Indigenous people who are neither the most relevant nor the most impacted in this scenario.86 86.Id.Show More

Pretending that these unique intersectional and historically-based experiences affect Black and Indigenous people in a deeper way than other people of color is disingenuous. COVID-19 has affected Black people differently than it has the Indigenous people—though both communities have suffered terrible consequences due to various structural constraints and limitations. However, grouping them together as BIPOC implies that the Black experience is similar to the Indigenous one, when in fact they are quite different; it also ignores the ways in which Filipinos and others carry a disproportionate share of the burden of deaths among nurses. Instead, journalists, advocates, and others should specify the individual groups involved and impacted in order to honestly report on the experiences of those affected by the pandemic within communities of color.

2. Health Disparities

Before COVID-19, decades of research have documented health disparities between whites and non-whites, especially focused on negative health outcomes for Black patients.87 87.John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009).Show More In comparison, there is little research documenting health effects of Native Americans who are engaged in similar healthcare settings and experiences as non-Native groups—again rendering the BIPOC term inappropriate in this context.88 88.Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23].Show More Furthermore, this year under COVID-19, researchers have documented specific negative health outcomes for Black and Latina pregnant women in certain populations.89 89.Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU].Show More The documented populations with increased COVID-19 exposure are limited to two particular raceXgender groups: Black women and Latinas. It would be incorrect to call this a problem affecting the healthcare of Black people generally or the Latinx community as a whole, as men are not pregnant and thus not affected. Similarly, research does not suggest that Asian American women or others beyond the two groups studied have endured similar negative health effects—meaning that even women of color would not be as precise a term, let alone people of color. As with health disparities generally, the little data available on Native Americans means that centering them by name using BIPOC would actually do a disservice to the community, representing purely symbolic inclusion through virtue signaling without actual knowledge of effects on the Indigenous community.

3. Contemporary Hate Crimes

Beyond health effects, COVID-19 and political responses to the coronavirus caused increases in hate crimes against particular populations throughout the U.S. in 2020 and 2021.90 90.Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV].Show More Specifically targeted—through acid attacks, beatings, racial slurs, and workplace discrimination—were people who are Chinese, Chinese American, or those who were mistaken by their assailants as having Chinese ancestry.91 91.Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90.Show More The recent killing of Asian American women specifically foregrounds violence based specifically on raceXgender identity, not about people of color, women of color, and definitely not Black and Indigenous people.92 92.Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”).Show More Many news articles made a direct connection between high profile politicians calling COVID-19 the “Chinese virus,” “Kung flu,” or other racialized terms and heightened animosity against Asian Americans, especially from whites.93 93.Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S].Show More These attacks are not stand-alone acts of violence but are tied to a long history of Chinese exclusion and the hyper-sexualization of Asian and Asian American women.94 94.Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5].Show More They also draw from the racial triangulation inherent in perceptions of Asian Americans as the “model minority” but nevertheless perpetually foreign.95 95.Kim, supra note 70, at 107–08.Show More

Black and Indigenous people did not experience a rise in hate crimes against them in 2020 because they were not targeted for spreading the coronavirus in the U.S.96 96.In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90.Show More Speaking about this increase in hate crimes against Asian Americans as a BIPOC issue would be incorrect. It would be devastating as well as inaccurate to center Black and Indigenous communities in this conversation, which is not about them or their suffering. Furthermore, using the BIPOC term in this instance would do a disservice to the very Asian Americans who are most affected by these attacks by erasing them from the narrative—relegating them to one of the many invisible remnant people of color groups within BIPOC rather than singling them out as the primary targets of these crimes. Instead, these crimes tie directly to the perception of Asian Americans as forever foreign, un-American, outsiders.97 97.Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998).Show More

Similarly, increases in hate crimes against Arab Americans and South Asian Americans in the immediate aftermath of the terrorist attacks of September 11 should not now be remembered as a broad BIPOC problem; clearly, particular groups within the umbrella of people of color were targeted and none are highlighted by using the BIPOC moniker.98 98.See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”).Show More The increase in hate crimes from two decades ago affected neither the Black nor the Indigenous communities in the way in which it terrorized South Asian, Arab American, and Muslim groups.99 99.Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001).Show More Utilizing BIPOC terminology when discussing these hate crimes would further marginalize the very victims most impacted by those acts of violence by purposefully centering two groups (Black and Indigenous people) whose experiences are not actually central to the hate incidents or ongoing harms.

4. Police Violence

Black men are more likely than any other raceXgender group to experience violence at the hands of the police.100 100.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020).Show More They are “more than twice as likely to be killed by police than are persons of other racial or ethnic groups . . . .”101 101.Id. at 951.Show More As such, police violence is not a BIPOC problem.

While there are a number of issues involving Native Americans and law enforcement—involving tribal sovereignty, jurisdictional concerns, discretionary measures, and enforcement—the experiences of Indigenous people interacting with police are not the same as or even similar to those of Black men.102 102.See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”).Show More Black women also are targets of police violence, as we know from the state-sanctioned killings of Breonna Taylor, Sandra Bland, Attatiana Jefferson, and dozens of others.103 103.Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7]Show More Yet the crisis that is police violence against Black men is not only racial but involves raceXgender biases, stereotypes, and life ending outcomes. No other group has suffered as much targeting of state-sanctioned violence as Black men.104 104.Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021).Show More Rather than group them with Black women and Indigenous men and women—as would be the case if we centered them through BIPOC terminology—advocates supporting Black Lives Matter and other efforts for police reform should continue to raise awareness that this should be a concern for all people though it affects, first and foremost, Black men.105 105.Williams, Mezey & Singh, supra note 18.Show More Using BIPOC here, as elsewhere, would be both incorrect and inappropriate. Continuing to center Black Lives Matter, which recognizes the challenges facing both Black men and Black women in police interactions, is critical to the effort. Changing the narrative to BIPOC Lives Matter would clearly be counterproductive as well as improper in dealings with this and other state-sanctioned violence.

5. Mass Incarceration

Over the past two decades, advocates have drawn significant attention to the mass incarceration and resulting disenfranchisement of Black men—not men of color, not people of color, not even Black women to the same degree.106 106.See Michelle Alexander, The New Jim Crow 19 (2020).Show More “Black men are six times as likely to be incarcerated as white men,” a disparity larger than any other raceXgender group.107 107.The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY].Show More

As with police violence, it would be disingenuous to talk about mass incarceration as an issue affecting those in the BIPOC community. Doing so would center one group (Black people) appropriately and another group (Indigenous people) inappropriately, since the little data we have on Indigenous incarceration rates suggest that while over-incarceration is a problem, the causes and context involving the Indigenous population are very different from those facing Black men.108 108.Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB].Show More Latino men, who are twice as likely to be incarcerated as white men, are facing a crisis as well though it is different from what their Black male counterparts endure.109 109.The Sentencing Project, supra note 107.Show More Instead, because the raceXgender group targeted by criminal justice policies is Black men, that is the community that should specifically be named by allies, advocates, and academics who seek to draw attention to the problem.

6. Current Immigration Policies

The immigration context as a whole is one that cannot draw in a straightforward fashion from BIPOC terminology and still do justice to the groups most affected. A majority of recent immigrants to the U.S. are from Asia and Latin America, neither of which are foregrounded in BIPOC language. Why then would advocates for immigration reform or racial justice in the immigration context talk about the experiences of people from the BIPOC community? Instead, Latinx and Asian Americans should be highlighted in most discussions related to historical or contemporary U.S. immigration policy.110 110.While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4].Show More

There are of course specific contexts even within the immigration arena where it is even more critical that we carefully name the groups affected and center their experiences over all others. Family separation—the policy whereby children were separated from parents applying for asylum or seeking immigration at the U.S.-Mexico border—is a prime example.111 111.Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW].Show More Of the 545 children who were taken from their families as early as July 2017 and whose parents cannot now be found, over two-thirds are from Central America; many are currently living with sponsors or extended family members in the U.S., most of whom are likely Latinx as well.112 112.Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans.Show More Clearly this is an issue that directly affects the Latinx community (a group with significant intra-racial diversity even with regard to ethnicity, language, culture, and other characteristics) over all others, even other immigrants; family separation is not an issue or experience that should center Black or Indigenous Americans over the community that is currently suffering the greatest harm and has the most to gain from a current reckoning and potential reformation.113 113.BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021).Show More

Conclusion

In 2020, we witnessed a racial reckoning in the wake of thousands in the streets protesting police violence against the Black community. It remains to be seen whether there will be a resulting reformation, and, if so, whether it will manifest as small but meaningful steps in line with past anti-subordination principles or a long overdue restructuring of the racial hierarchy on the path toward antiracism. Any reformation must pay careful attention to the language we use—including changes in terms involving race, racism, and resistance. There must be opportunities for communities—people of color collectively and separately—to navigate new terms and advocate for how they themselves prefer to be identified.114 114.This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves.Show More How we name things is a powerful marker of our priorities and preferences. For instance, while efforts to advance diversity remain, they are now increasingly supplemented with meaningful attention to promote antiracist action. Those who previously pushed for people from diverse backgrounds to have a seat at the table are now demanding their voices be heard and included in decision making.115 115.Deo, supra note 10.Show More

Yet we must safeguard against modifications in language that take hold without advancing real progress. Change may not mean evolution or forward progress. New terms are not always better, especially without grassroots efforts or meaningful reflection among community members. When considering language that groups people from different backgrounds together, the term BIPOC is not better than those previously in use. Using the name people of color gives non-whites from all backgrounds an opportunity to band together when considering issues involving them all, and especially differences between them as a group as compared to whites. Similarly, allies, advocates, and academics who seek to incorporate the critical intersection of raceXgender in particular instances should continue to utilize the term women of color. When individual groups should be highlighted in particular contexts, those should be named specifically instead of using people of color, women of color, or BIPOC.

Using the term BIPOC, however, creates a hierarchy within people of color preferring two groups that, while foundational to U.S. race relations, may not be foundational to every contemporary project or discussion involving race. Furthermore, although the term centers Black and Indigenous people in name, these groups may nevertheless remain at the periphery of power and inclusion—for instance, as continuously occurs when Native Americans are excluded from the data on empirical projects that then seek to reach sweeping generalized conclusions. Virtue signaling—making changes only in name and for the express purpose of highlighting one’s morality—does not indicate progress.

Instead of blindly using the term BIPOC, allies, academics, and advocates should think critically about the issue they seek to promote, consider the data or arguments they have to support their efforts or conclusions, and utilize the term that best fits their needs. Sometimes this will be people of color, when considering how the experiences of people of color as a whole differ from those of whites. Other instances call for the use of women of color, especially when highlighting differences by raceXgender and drawing attention to the experiences of women (as distinct from men of color) from a variety of non-white backgrounds (as distinct from white women).

This Essay has demonstrated instances where BIPOC clearly fails. It can be misleading, overly simplistic, and even incorrect when centering the experiences of Black and Indigenous communities over others within the people of color umbrella. This belittles those who are virtually erased, ignores the realities of the issue under review, and harms the communities it purports to highlight by centering them in name only. It is critical that academics, advocates, and allies utilize language that is better than BIPOC, as is evident after applying the thesis to the clear examples outlined earlier where particular groups, besides Black and Indigenous, must be foregrounded.

The next step in future work is to apply the main thesis presented here—that individual groups should be named and highlighted depending on the context, data, or argument, rather than using the BIPOC term for every racialized situation—to more complex and complicated circumstances. It is easy to see how BIPOC should not be used when discussing immigration policy or hate crimes against Asian Americans during the coronavirus pandemic, but what about the more challenging context of legal education, considering how students from different backgrounds perceive issues of diversity, or how raceXgender background affects law faculty experiences?116 116.The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9.Show More Analyzing this thesis through these and other more nuanced examples will illustrate its broader reach and application.

In both simple and complex cases, grouping disparate peoples together can serve to increase power and political clout; yet it can also erase those who are minorities within the groups. To avoid that risk in particular circumstances, it is sometimes best to disaggregate data and separate groups. The most effective use of language is when allies, advocates, and academics use the names of the groups actually included and centered in the arguments themselves, paying close attention to the context and the communities involved and utilizing matching terms. Although BIPOC fails, there are other paths forward that will lead to more meaningful change.

  1. * JD, PhD, Professor of Law, Thomas Jefferson School of Law; William H. Neukom Fellows Research Chair in Diversity and Law, American Bar Foundation (ABF); Director, Law School Survey of Student Engagement (LSSSE). This Essay benefitted from feedback from and conversations with Guy-Uriel Charles, Luis Fuentes-Rohwer, Anil Kalhan, Taleed El-Sabawi, Kevin Johnson, Fred Smith, Louise Melling, Raquel Muniz, Orin Kerr, Elizabeth Mertz, Gautam Hans, Kirsten Matoy Carlson, Efrén Pérez, Franita Tolson, and Shaun Ossei-Owusu. Finally, I am grateful to the Virginia Law Review editorial team, especially Allison Burns, Andrew Tynes, Rachel Slepoi, and Elizabeth Adler. All errors and opinions are my own. ↑

  2. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V]. ↑

  3. Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2]. ↑

  4. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020). ↑

  5. Buchanan, Bui & Patel, supra note 1. ↑

  6. Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT]. ↑

  7. Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT]. ↑

  8. Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6]. ↑

  9. Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium. ↑

  10. This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author). ↑

  11. See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies). ↑

  12. Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011). ↑

  13. For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX]. ↑

  14. Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20. ↑

  15. Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994). ↑

  16. The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22. ↑

  17. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976). ↑

  18. Balkin & Siegel, supra note 16. ↑

  19. See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021). ↑

  20. See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019). ↑

  21. Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016). ↑

  22. For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969). ↑

  23. See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021). ↑

  24. H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, in Raciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014). ↑

  25. Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW]. ↑

  26. Id. ↑

  27. See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991). ↑

  28. Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012). ↑

  29. See Crenshaw, supra note 16, at 140 (coining the term). ↑

  30. Wing, supra note 16, at 1, 7. ↑

  31. See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment

    23

    (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002). ↑

  32. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017). ↑

  33. Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019). ↑

  34. Sandahl, supra note 22. ↑

  35. Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019). ↑

  36. Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9]. ↑

  37. Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”). ↑

  38. Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author). ↑

  39. See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3. ↑

  40. See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26]. ↑

  41. Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV]. ↑

  42. Deo, supra note 10. ↑

  43. Ibram X. Kendi, How to Be an Antiracist 9 (2019). ↑

  44. Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010). ↑

  45. Kendi, supra note 42, at 23. ↑

  46. Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ]. ↑

  47. Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules. ↑

  48. Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021). ↑

  49. The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9. ↑

  50. Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”). ↑

  51. See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992). ↑

  52. Wing, supra note 29, at 7. ↑

  53. See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991). ↑

  54. Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46. ↑

  55. Garcia, supra note 13. ↑

  56. Id. ↑

  57. The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7]. ↑

  58. Clarke, supra note 56. ↑

  59. See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity). ↑

  60. Wing, supra note 16, at 7; Harris, supra note 52, at 585. ↑

  61. See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ]. ↑

  62. Garcia, supra note 13. ↑

  63. The BIPOC Project, supra note 53. ↑

  64. The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N]. ↑

  65. See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies). ↑

  66. Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20. ↑

  67. Sutton, supra note 60. ↑

  68. See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56. ↑

  69. Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011). ↑

  70. Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B. ↑

  71. Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999). ↑

  72. Id.; Hancock, supra note 68, at 4. ↑

  73. Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015). ↑

  74. The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress). ↑

  75. Omi & Winant, supra note 72, at 39­–46. ↑

  76. The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9. ↑

  77. Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA]. ↑

  78. Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”). ↑

  79. Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN]. ↑

  80. Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d. ↑

  81. See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N]. ↑

  82. Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F]. ↑

  83. Wade, supra note 78. ↑

  84. Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80. ↑

  85. National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts. ↑

  86. Id. at 5. ↑

  87. Id. ↑

  88. John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009). ↑

  89. Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23]. ↑

  90. Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU]. ↑

  91. Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV]. ↑

  92. Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90. ↑

  93. Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”). ↑

  94. Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S]. ↑

  95. Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5]. ↑

  96. Kim, supra note 70, at 107–08. ↑

  97. In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90. ↑

  98. Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998). ↑

  99. See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”). ↑

  100. Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001). ↑

  101. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020). ↑

  102. Id. at 951. ↑

  103. See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”). ↑

  104. Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7] ↑

  105. Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021). ↑

  106. Williams, Mezey & Singh, supra note 18. ↑

  107. See Michelle Alexander, The New Jim Crow 19 (2020). ↑

  108. The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY]. ↑

  109. Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB]. ↑

  110. The Sentencing Project, supra note 107. ↑

  111. While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4]. ↑

  112. Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW]. ↑

  113. Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans. ↑

  114. BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021). ↑

  115. This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves. ↑

  116. Deo, supra note 10. ↑

  117. The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9. ↑

Remedying Police Brutality Through Sentencing Reduction

Police brutality is a widespread problem that causes significant physical and psychological trauma, undermines faith in the law, and disproportionately impacts communities of color. Existing remedies to police brutality—including civil suits for damages, criminal prosecution, and internal disciplinary procedures—have in many cases proven inadequate. They fail to sufficiently deter police brutality and fail to adequately compensate victims.

This Essay proposes a novel alternative: remedying police brutality by reducing the sentences of criminal defendants who have been victims of police brutality and subsequently convicted of a crime. When a victim of police brutality is convicted of a crime relating to an incident in which the police committed unnecessary violence, they would be eligible for a reduction in their resulting sentence. The magnitude of the sentence reduction would scale to the severity of the police’s actions. Such a remedy would deter police brutality and adequately compensate victims. Because the remedy would occur within the very same process that produces police brutality—the process of criminal investigation and adjudication—it would restore procedural fairness and reaffirm victims’ rights. The Essay concludes by exploring practical concerns with the remedy, particularly the relative roles of legislatures and courts in its implementation.

Introduction

Late on the night of May 24, 2020, Joseph Troiano left an overcrowded New York City homeless shelter, tired of waiting for a bed, and took his bags with him to the subway, setting the bags down in the seats around him.1 1.SeeRosa Goldensohn, De Blasio Renders Split Decision on Video of Cop Punching Homeless Man on Subway, The City (July 20, 2020, 9:35 PM), https://www.thecity.nyc/2020/7/20/21332157/de-blasio-subway-video-nypd-cop-punches-homeless-man [https://perma.cc/Y9EP-UV3U]; Adam Harding, Man Hit, Choked and Maced by NYPD in Violent Arrest Video Plans to File $40M Lawsuit, NBC New York (July 17, 2020 2:29 AM), https://www.nbcnewyork.com/news/local/man-hit-choked-and-maced-by-nypd-in-violent-arrest-video-plans-to-file-40m-lawsuit/2518793/ [https://perma.cc/Q6AF-ESP9].Show More The subway was nearly empty.2 2.Goldensohn, supra note 1.Show More Just after midnight, an officer of the New York City Police Department (NYPD) approached him and ordered him to move because he was occupying multiple seats.3 3.Id.Show More Troiano moved to the next train car.4 4.Id.Show More The officer, joined by another officer, followed and ordered Troiano to exit, telling him “step off or I got to drag you off.”5 5.See Harding, supra note 1.Show More

A bodycam video of the incident shows Troiano objecting to the officers’ harassment, then one of them suddenly reaching out to grab him.6 6.The City, NYPD Subway Arrest, YouTube (July 14, 2020), https://www.youtube.com/‌watch?v=2lgK-apbl8Y [https://perma.cc/9FZ8-CFG8].Show More Troiano swats the officer’s hand.7 7.Id.Show More The officer grabs Troiano and throws a few quick punches to his head.8 8.Id.Show More As Troiano yells, the officer pulls him off the train by the back of the neck and throws him on the platform floor.9 9.Id.Show More Troiano gets up and stands against the platform wall, visibly shaken.10 10.Id.Show More The officer kicks his bags off the train, scattering them on the platform.11 11.Id.Show More As Troiano yells for them to stop, his back still to the wall, the other officer sprays him with pepper spray at point-blank range.12 12.Id.Show More The officers finally bring him to the ground and handcuff him.13 13.Id.Show More

Manhattan District Attorney (D.A.) Cyrus Vance initially charged Troiano with felony assault (for allegedly kicking the officer’s hand while on the platform) and misdemeanor resisting arrest.14 14.Goldensohn, supra note 1.Show More After widespread outrage, the D.A.’s office dropped the felony charge, leaving the resisting arrest charge,15 15.Id.Show More a Class A misdemeanor that carries a maximum penalty of one year in jail and a fine of up to $1,000.16 16.N.Y. Penal Law §§ 70.15(1), 205.30 (McKinney 2019).Show More

While the most highly publicized incidents of police brutality tend to involve unjustified killing by the police, many instances of police brutality are non-lethal. It far more often occurs in incidents like the one between the NYPD and Joseph Troiano.17 17.SeeMatthew J. Hickman, Alex R. Piquero & Joel H. Garner, Toward a National Estimate of Police Use of Nonlethal Force, 7 Criminology & Pub. Pol’y 563, 577–81, 588–89 (2008) (finding that several hundred thousand arrestees in 2002 experienced nonlethal force from an officer, such as being pushed, grabbed, kicked, hit, or held at gunpoint); Police Shootings, Vice News (Dec. 10, 2017), https://news.vice.com/en_us/article/a3jjpa/nonfatal-police-shootings-data [https://perma.cc/KT6V-NH35] (providing data on police shootings from 2010 through 2016 at the fifty largest local police departments in the U.S. and finding that “[f]or every person shot and killed by cops in these departments . . . police shot at two more people who survived”). Data on police brutality is extremely limited. In the past few years there have been some efforts to begin national data collection, but the complete results have not yet been published. See, e.g., National Use-of-Force Data Collection, FBI, https://www.fbi.gov/‌services/cjis/ucr/use-of-force [https://perma.cc/5V8L-V4CF] (last visited Mar. 18, 2021) (noting that “[t]he FBI released initial data when 40% of the total law enforcement officer population was reached” in July 2020 and that “[a]dditional data will be released at 60% and 80% participation levels”).Show More In legal parlance, these more everyday instances of police brutality are often cast in other terms—“excessive use of force” or “unreasonable force”18 18.See, e.g., Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016).Show More—but represent essentially the same problem: the police’s unjustified use of physical violence.19 19.Whether “police brutality” is coequal with those terms is subject to some disagreement. See, e.g., Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 Buff. L. Rev. 1275, 1276 (1999) (distinguishing “[p]olice brutality” from “police misconduct” on the basis that the former “is conduct that is not merely mistaken, but taken in bad faith with the intent to dehumanize and degrade its target”).Show More

Police brutality is a dire problem with inadequate remedies. It is an old problem, tied to the nation’s history of racism.20 20.See generally Sandra Bass, Policing Space, Policing Race: Social Control Imperatives and Police Discretionary Decisions, 28 Soc. Just. 156 (2001) (detailing the history of race and policing from slave patrols to the war on drugs).Show More In 2020, a string of police killings of Black victims—Breonna Taylor, George Floyd, and Rayshard Brooks, among others—provoked widespread protests that were themselves met by police brutality.21 21.See, e.g., Richard Fausset and Shaila Dewan, Elijah McClain Died After He Was Detained. Now He’s Being Remembered., N.Y. Times (June 30, 2020), https://www.nytimes.com/2020/06/20/us/elijah-mcclain-police-killings.html [https://perma.cc/LU93-HQ7Q]; Adam Gabbatt, Protests About Police Brutality Are Met with Wave of Police Brutality Across U.S., The Guardian (June 6, 2020), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-us-george-floyd [https://perma.cc/GQ3J-G5Q7].Show More The effects of police brutality are immense. The most severe are, of course, suffered by victims themselves as physical and psychological trauma, but police brutality also has broader societal impacts. It undermines faith in the legal system.22 22.See Nathan James et al., Cong. Rsch. Serv., R43904, Public Trust and Law Enforcement–A Discussion for Policymakers 2–3 (2020) (tracking declines in public confidence in the police in recent years).Show More It is linked to lower academic achievement and school attendance.23 23.See Desmond Ang, The Effects of Police Violence on Inner-City Students, 136 Q.J. Econ. 115, 117–18 (2021).Show More It disproportionately impacts Black and Hispanic communities.24 24.SeeRoland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force, 127 J. Pol. Econ. 1210, 1213–14 (2019).Show More

Despite how serious of a problem police brutality is, remedies for it are entirely inadequate. A victim can sue an officer for civil damages, but the officer’s conduct might well be covered by qualified immunity.25 25.SeeRachel A. Harmon, Legal Remedies for Police Misconduct, in 2 Reforming Criminal Justice: Policing 27, 33–35 (Erik Luna ed., 2017).Show More They could sue the municipality for damages, but discovery would be difficult, the process long, and the settlement potentially inadequate.26 26.Id. at 35. See also Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Calif. L. Rev. 325 (2018) (discussing how Black and Hispanic tort claimants’ damage awards are under-calculated as a matter of course because of courts’ reliance on race-sensitive data).Show More They could seek criminal prosecution of the officers, but political pressures might not allow prosecutors to bring an indictment.27 27.Harmon, supra note 25, at 40–43. See also John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev. 789, 789 (2000) (discussing the “cycle of impunity[] by which the reluctance of local government to prosecute bad cops empowers future misconduct and drives communities to regard the police as adversaries”).Show More They could petition for an internal departmental review of the officer, but the process would be polluted by conflicting incentives and bureaucratic limitations.28 28.Harmon, supra note 25, at 45–46.Show More In short, existing remedies to police brutality are insufficient in both the frequency with which they are invoked and the amount they compensate the victim when they are invoked.

And, if the victim, like Joseph Troiano, has been charged with a crime , they could still end up going to prison. Existing remedies to police brutality treat the victim’s prosecution as a distinct process from the processes through which they may seek a remedy. In a case like Troiano’s where the victim of the police brutality is charged with a crime, the victim must go through their own criminal adjudication and separately seek a remedy to the brutality. But why should a remedy not be available within the very same process that produces police brutality—the criminal investigative and adjudicatory process? After all, victims of other kinds of police misconduct receive the benefit of the exclusionary rule,29 29.SeeMapp v. Ohio, 367 U.S. 643, 654–55 (1961).Show More and victims of prosecutorial misconduct can have their cases dismissed as a remedy,30 30.See, e.g., United States v. Cooper, 983 F.2d 928, 929–30 (9th Cir. 1993) (affirming the dismissal of an indictment after the government destroyed evidence in spite of defendant’s repeated requests to prosecutor to preserve the evidence); United States v. Bohl, 25 F.3d 904, 906 (10th Cir. 1994) (dismissing the case because the prosecution failed to adhere to the defendant’s request to preserve evidence); see also Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 815–19 (1999) (discussing different remedies for prosecutorial misconduct, including dismissal).Show More which are both remedies internal to their criminal adjudication.

This Essay proposes a new remedy to police brutality: reducing the sentences of criminal defendants who have been the victims of police brutality. Part I details the mechanics of the proposal. Part II then describes the benefits of using remedial sentencing for police brutality. The remedy would have two particular benefits: one, it would deter police brutality, and two, it would adequately compensate victims. Finally, Part III explores how legislatures and courts could implement the remedy.

I. The Proposal

The possibility of remedying police brutality at the sentencing phase of a victim’s criminal trial has not been proposed in prior scholarship. Some scholars have, however, proposed remedial sentencing schemes in other contexts. Some, including Judge Guido Calabresi, have proposed using sentence reduction as an alternative remedy to the exclusionary rule.31 31.SeeGuido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol’y 111, 116 (2003); Harry M. Caldwell & Carol A. Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom, 78 Marq. L. Rev. 45, 73–74 (1994).Show More Other scholars have argued that sentence reduction could be used to remedy prosecutorial misconduct.32 32.Seegenerally Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509 (2009) (proposing sentence reduction as a remedy that would deter prosecutorial misconduct and have corrective and expressive value).Show More And others have argued that it could help amend historical discrimination against minority groups.33 33.SeeMakenzie Way, Remedial Sentencing Legislation as a Tool for Reducing Overrepresentation in Correctional Facilities, Penn L. News (Jan. 6., 2020), https://www.law.upenn.edu/live/news/9534-remedial-sentencing-legislation-as-a-tool-for [https://perma.cc/4AJW-88SX].Show More None, however, have proposed using sentence reduction for police brutality.

Nor has any American court employed remedial sentencing for police brutality.34 34.Although the Supreme Court of Canada has notably used a similar remedy at least once. See R. v. Nasogaluak, [2010] 1 S.C.R. 206, 208–10 (Can.).Show More But it would hardly be unprecedented. There is a long tradition of remedying police and prosecutorial misconduct within the criminal trial, of which sentencing is a part. The exclusionary rule is the most prominent; a defendant who has been the victim of police misconduct—an illegal search, or perhaps a Miranda violation—receives a remedy within the context of their trial.35 35.SeeMapp v. Ohio, 367 U.S. 643, 654–55 (1961); Miranda v. Arizona, 384 U.S. 436, 479 (1966).Show More As it goes, “[t]he criminal is to go free because the constable has blundered.”36 36.People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).Show More As another example, courts, on rare occasions, bar retrial to remedy particularly egregious instances of prosecutorial misconduct that result in mistrials, again providing a remedy within the context of the defendant’s trial.37 37.See Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 Seton Hall L. Rev. 335, 344–46 (2007) (discussing how double jeopardy bars retrials where a mistrial has been declared for prosecutorial conduct that was specifically “intended to provoke the defendant into moving for a mistrial” (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)) but not where the prosecutor’s conduct was intended to win at trial using impermissible means).Show More Remedying police brutality at the sentencing phase of the trial would be consistent with those remedies: it provides a remedy internal to the victim’s criminal adjudication.

Consider what the remedy would look like in practice. First, there would have to be an occurrence of police brutality. The remedy should at least be available for any occurrence of police brutality that violates the Constitution,38 38.Namely, the Fourth Amendment’s prohibition on unlawful seizures and the Fifth and Fourteenth Amendments’ Due Process Clauses.Show More but could also be defined by statute or within sentencing guidelines in order to broaden the scope of the conduct captured beyond a constitutional standard.

The victim would then have to be charged with an offense. The offense could be the offense that the police were investigating or executing an arrest for when the brutality occurred,39 39.As in the case of Jacob Blake, whose shooting in Kenosha, Wisconsin, has received significant media attention. See Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Jan. 5, 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html [https://perma.cc/MX7Q-47QB].Show More or it could be an offense arising out of the police-victim interaction itself (resisting arrest, assault on an officer) as in Troiano’s case. When there is a charge relating to conduct that precedes the brutality, there might have to be some kind of fact-finding process to determine that the police brutality incident is sufficiently related to the charge—that it arises from the investigation of, or arrest for, that particular charge. Needless to say, the remedy is only available if the victim is actually charged with a crime. This means that many victims of police brutality, ones who are never charged with an offense, would not reap its benefits. But the remedy’s limited scope would not render it any less impactful when it does apply.

Victims could invoke the remedy at one of several stages. First, they could indirectly benefit from it during plea bargaining. If a defendant has been the victim of police brutality and might consequently receive a lower sentence if the factfinder finds them guilty, they would likely receive a more favorable plea offer. The potential sentence reduction would act as an extra bargaining chip. Considering how many criminal cases result in plea deals,40 40.See Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (Aug. 7, 2018), https://innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/ [https://perma.cc/9ZNF-MHQA] (finding that “97 percent of [criminal] cases were resolved through plea deals”).Show More the indirect benefits at this stage would be significant. Second, the victim could invoke the right at sentencing if they go to trial and the factfinder finds them guilty. Legislatures or sentencing commissions could establish specific downward departures for victims of police brutality, or judges could take it into account under existing sentencing factors. Third, a victim could invoke the remedy on direct appeal, or, fourth, in a post-conviction proceeding.

Regardless of when the victim invokes the remedy, the magnitude of the compensation—the reduction in the victim’s sentence time—would still have to be determined. In general, more severe instances of police brutality would warrant greater sentence reductions. The compensation should be commensurate with the harm. In cases where the brutality is severe and the defendant’s offense insignificant, the sentence reduction could be complete, producing a sentence without a term of incarceration; in cases where the brutality is less severe and the defendant’s offense significant, the sentence reduction could be relatively minor. This ability to appropriately tailor the size of the compensation to the harm helps produce the deterrent and compensatory effects that make sentence reduction such a promising remedy for police brutality.

II. Benefits of the Remedy

Existing remedies to police brutality provide, at least in theory, two main benefits: deterring further police brutality and compensating victims.41 41.SeeHarmon, supranote 25, at 27–30.Show More Remedying police brutality through sentence reduction should deter further brutality, and is uniquely situated among potential remedies to police brutality to adequately compensate victims.

A. Remedial Sentencing’s Deterrent Effects

Remedying police brutality through sentence reduction should tend to deter further brutality when the costs it imposes on police officers exceed the benefits they gain by committing brutality.42 42.SeeFrank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 289, 292 (1983) (arguing that to satisfy the criminal law goal of deterrence, the criminal process must set “[t]he optimal price for the offense,” which is “just high enough to require offenders to pay for all of the harm their crimes inflict”).Show More Neither of those factors is precisely or easily calculable, but there is enough empirical evidence on police behavior to suggest that remedial sentencing would have a deterrent effect.

What costs does the remedy impose on officers? Empirical evidence suggests a few clear incentives that control police behavior. Most relevantly here, police have an incentive to secure convictions and sentences; they consistently act in ways that will tend to produce more convictions with longer sentences.43 43.See, e.g.,John Pfaff, The Perverse Incentives of Punishment, The Appeal (May 18, 2018), https://theappeal.org/the-perverse-incentives-of-punishment-7c1e32b18d07/[ https://perma.cc/WUF5-AZRV] (reporting an especially egregious example of this phenomenon, wherein Todd Entrekin, a sheriff in Etowah, Alabama, “pocketed at least $750,000 budgeted for feeding the people detained in his county jail,” enabling him to purchase a beach house while those incarcerated the jail ate meat “labeled ‘not fit for human consumption’”).Show More Evidence emerging out of studies of wrongful convictions indicates that officers tend to act in a way that secures convictions and long sentences even if, in doing so, they sometimes act unlawfully or in bad faith.44 44.SeeAnthony W. Batts, Maddy deLone & Darrel W. Stephens, Policing and Wrongful Convictions, Nat’l Inst. Just. 4 (2014), https://www.ojp.gov/pdffiles1/nij/246328.pdf [https://perma.cc/K5SJ-WCZK].Show More Because police have such a demonstrated interest in securing convictions and long sentences, remedial sentencing should impose costs on them: it produces shorter sentences when they act unlawfully.

An important factor in determining the exact costs that the remedy imposes on police is the likelihood that it would actually be invoked when it is available.45 45.See Easterbrook, supra note 42, at 292 (emphasizing that the price of committing an offense is a product of “[t]he penalty” imposed and “the probability that it will be imposed for a given offense”).Show More This is the failing of many existing remedies to police brutality: they might produce a deterrent effect if they were actually used, but police officers are generally immune from civil suits due to qualified immunity and immune from criminal prosecution because of political insulation.46 46.See Harmon, supranote 25, at 34–35, 43.Show More Remedial sentencing would be comparatively easy to invoke. The victim would be automatically eligible for it at sentencing, and would not have to overcome the institutional barriers involved with civil suits or prosecuting officers. In addition, there would also be no concern with providing the victim an unwarranted windfall because the size of the sentence reduction would be made commensurate with the severity of the police conduct, so judges, generally speaking, should not be reluctant to allow it. Evidence shows that judges might be reluctant to provide a windfall—as the exclusionary rule is in many cases—but they should be less reluctant to provide a remedy that is commensurate with what the defendant deserves.47 47.See Starr, supranote 32, at 1521.Show More

What benefits do the police gain from committing brutality? It is perhaps unintuitive to think of the issue in those terms, so it might be easier to consider the correlative: the costs the police incur by not committing brutality. This factor is crucial to understanding how sentence reduction could deter police brutality. To be sure, the reasons that police brutality occurs are nebulous, subject to active debate, and hardly reducible to a few easily-defined factors.48 48.The genesis of police brutality is a broad and hotly contested subject, but a few key ingredients include poor hiring and training practices, the militarization of the police, and institutionalized racism. SeeRobert E. Worden, The “Causes” of Police Brutality: Theory and Evidence on Police Use of Force, in Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice 149–64 (Edward R. Maguire and David E. Duffee eds., 2d ed. 2015) (providing an overview of various theories and studies of police use of force); Rosa Brooks, Stop Training Police Like They’re Joining the Military, The Atlantic (June 10, 2020), https://www.theatlantic.com/ideas/archive/2020/06/police-academies-paramilitary/612859/ [https://perma.cc/MBR9-68K5] (addressing the relationship between militarizing the police and police brutality and discussing promising efforts to train police to critically engage with the history of paramilitary police forces in the United States); Wayne McElrath & Sarah Turberville, Poisoning Our Police: How the Militarization Mindset Threatens Constitutional Rights and Public Safety, Project on Gov’t Oversight, (June 9, 2020), https://www.pogo.org/analysis/2020/06/poisoning-our-police-how-the-militarization-mindset-threatens-constitutional-rights-and-public-safety/ [https://perma.cc/KF74-5CHA]. (arguing that the militarization of police forces imperils public safety and freedom, and recognizing that racism is a fundamental feature of American policing).Show More But the evidence suggests that police brutality is at least partially a product of training and budget shortfalls; police departments that have invested in force-reduction trainings have lower reported instances of excessive force.49 49.See George Wood, Tom R. Tyler & Andrew V. Papachristos, Procedural Justice Training Reduces Police Use of Force and Complaints Against Officers, 117 Proceedings of the Nat’l Academy of Sciences of the United States of America 9815, 9815 (May 5, 2020), available at https://www.pnas.org/content/117/18/9815/ [https://perma.cc/2VJL-2BFR] (finding that large-scale implementation of procedural justice training reduced complaints and use of force).Show More In order to mitigate police brutality, then, municipalities would have to invest in counter-measures, better training in particular. Those measures have costs, and the money that police departments and municipalities save by not investing in them might be considered the “benefits” they receive by committing brutality.

Because that second factor—the benefits the police receive by committing brutality—is so nebulous, it is hard to determine the extent to which remedial sentencing would deter police brutality. But the fact that the remedy would impose costs on the police is clear, and it is also clear that it would likely impose greater costs on the police than alternative remedies because it is so much more likely to be invoked. Therefore, remedial sentencing should tend to deter police brutality at least as well as alternative remedies. Regardless, because the remedy would exist alongside existing remedies to police brutality, its deterrent effects would aggregate with theirs.

B. Remedial Sentencing’s Corrective Effects

The single most important reason to adopt sentence reduction as a remedy to police misconduct is the unique compensatory benefits it offers to victims. Sentence reduction is categorically unlike other remedies to police brutality because it is the only remedy—existing or conceivable—that matches the form and scale of the harm done to the form and scale of the compensation provided.

1. Correspondence in Form

First, in remedial sentencing, there is a corrective effect in the sense that a state-imposed harm (the physical and psychological damage police brutality inflicts upon victims) is compensated by a correlative reduction in a related state-imposed harm (victims’ terms of incarceration). The form of the compensation matches the form of the harm. That correspondence is important in light of the retribution principle for criminal punishment. The idea behind the retribution principle is that, because a defendant has performed a moral wrong, they deserve punishment.50 50.See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992).Show More The punishment is its own end, one’s just deserts. The punishment scales to the severity of the crime; more serious crimes beget longer sentences because their perpetrators are thought to deserve more punishment.

The problem when it comes to victims of police brutality who have been convicted of a crime is that they have already suffered a state-imposed harm—the police brutality. Those sentenced without regard to the police brutality suffer a total amount of state-imposed harm disproportional to the severity of the crime they committed: their term of incarceration plus the injury caused by the police. The retribution principle, then, necessitates remedial sentencing. The remedy reduces the term of incarceration to the degree that the total amount of state-imposed injury is commensurate with the severity of the offense. It matches the form of the harm to the form of the compensation—a state-imposed injury and a reduction in a state-imposed injury, respectively.

In a closely related vein, there is also a procedural correspondence between the harm and compensation in remedying police brutality through sentence reduction. Police brutality typically takes place in the process of a criminal investigation or arrest.51 51.SeeHickman, Piquero & Garner, supra note 17, at 577; see also Worden, supranote 48, at 149–51 (describing brutality in investigation and arrest).Show More The investigative stops, seizures, and arrests in which brutality takes place are part of the process that ultimately leads to the victim’s criminal adjudication, which in turn results—if the victim is convicted—in sentencing. Remedying police brutality by reducing the victim’s sentence, then, provides compensation within the very same process that produces the harm. The harm takes place as police investigate or execute an arrest for a victim’s alleged crime, and the compensation frees the victim of the consequences of that investigation.

Why does matching the form of the harm to the form of the compensation matter? After all, other remedies do not match the form of the compensation to the harm; they provide monetary damages or directly punish the offending officers. The proposed remedy’s correspondence in form matters because of what it expresses about the nature of police brutality. The remedy has an expressive benefit in the sense that it sends a message about the inherent wrongfulness of the police’s actions; more so than alternative remedies, it sounds in moral terms. Reducing a defendant’s sentence because they have been a victim of police brutality signals that the legal system recognizes and takes seriously the exact nature of the harm they have suffered. As one scholar puts it, “‘expressive legal remedies’ matter because they express recognition of injury and reaffirmation of the underlying normative principles for how the relevant relationships are to be constituted.”52 52.Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1529 (2000).Show More Providing a remedy in the same form as the injury affirms the nature of the injury—a state-imposed injury that occurs within the criminal process. When the police commit brutality, they produce a state-imposed harm and undermine the process of criminal investigation and adjudication. By reducing a defendant’s sentence, the remedy mitigates the particular damage that the brutality has done to both the victim and the system. It reaffirms the rights of the victim and restores procedural justice.

2. Correspondence in Scale

The second corrective benefit of remedial sentencing is its commensurability. Sentence reduction is a particularly good remedy to the harm caused by police brutality because it is so tailorable to the severity of the harm the defendant has suffered. Not all instances of police brutality are equally severe, so the compensation must be tailorable to the severity of the harm. Remedial sentencing does just that: compensates serious instances of police brutality with significant sentence reductions, and more minor instances of police brutality with relatively token ones.

The ability of remedial sentencing to provide compensation commensurate in scale with the severity of the harm matters for expressive purposes. The remedy cannot just generally affirm the rights of the victim or restore procedural justice; it must do those things in the right magnitude. Providing compensation commensurate in scale with the harm sends a signal about just how morally repugnant the officer’s conduct was, and just how much the victim’s rights have been violated. Of course, there is no easy or inherent way to convert the wrongfulness of a particular incident of police brutality to an amount of sentence time. How many months or years is a beating worth? That conversion process depends on subjective judgments about the severity of police brutality and the meanings of particular amounts of sentence time. The important thing is that there is some scaling. It would be up to legislatures, sentencing commissions, and judges to ensure its consistency.53 53.See infra Part III for discussion of the possible roles of legislatures, sentencing commissions, and courts.Show More

3. Comparison with Alternative Remedies

Some remedies for police brutality (real or proposed) match the form of the compensation to the form of the injury. Others match them in scale. But none do both, which is why sentence reduction, when it would be applicable, could be such a powerful remedy.

Consider potential remedies to police brutality that match in form but not scale. Courts might want to expand the exclusionary rule to cases of police brutality, refusing to admit evidence arising out of police-defendant interactions in which the police commit physical violence. Similarly, courts could outright dismiss cases against defendants who have suffered police brutality. These remedies would match the form of the harm to the compensation by taking place in the process of the victim’s criminal adjudication and would result in a lower state-imposed harm (because the defendant would not be sentenced at all, having not been convicted). But they would not necessarily scale the compensation to the harm. They might provide a windfall by freeing a defendant entirely from a looming sentence.54 54.They also might discourage judges from applying the remedy at all. There have been indications that judges are less likely to apply the exclusionary rule because it might overcompensate victims for the government’s violations of their rights—as Judge Calabresi has noted, judges “are not in the business of letting people out on technicalities.” Calabresi, supra note 31, at 112.Show More

Then consider potential remedies that match in scale but not form. Civil suits for damages at least theoretically scale to the severity of the injury but do not match in form. In the police brutality context, they reward physical and dignitary harms with liquid money. Likewise, prosecuting offending officers—even if warranted for other reasons—does not restore procedural fairness to the victim’s own adjudication, even if the officer’s sentence should loosely scale to the severity of their actions.

Remedial sentencing, by matching both the form and scale of the compensation to those of the harm, reaffirms the rights of the victim and restores procedural fairness. Sentence reduction has unique corrective power to remedy the particular harms done by police brutality.

III. Implementing the Remedy

There are multiple possible paths to implementing a remedial sentencing scheme for police brutality, but choosing among those paths might prove difficult. A particularly crucial choice is whether it would be primarily legislature-driven or court-driven.

If the remedy were to be primarily legislature-driven, legislatures could create statutory downward departures for defendants who have been victims of police brutality during an interaction with the police relating to their instant case. The downward departure could be either advisory or mandatory. There would be no obvious constitutional issue with imposing a mandatory downward departure because, even though the Supreme Court has held mandatory sentence enhancements unconstitutional where the factfinder has not found the elements of the enhancement beyond a reasonable doubt,55 55.SeeApprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); United States v. Booker543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).Show More there is no such issue with mandatory sentence reductions. In jurisdictions with sentencing commissions, including the federal system, the sentencing commission might have to promulgate the downward departure in its guidelines.56 56.See, e.g.,U.S. Sent’g Guidelines Manual§ 1A1.1–3 (U.S. Sent’g Comm’n 2018).Show More But establishing the remedy by either statute or guideline would provide the benefits of a fixed rule. Of course, a fixed rule would also have drawbacks, such as reduced case-by-case flexibility.

On the other hand, the major benefit of courts driving the remedy’s implementation is that it could, in some jurisdictions, happen immediately, with no new statutory authorization required. In jurisdictions with indeterminate or largely standards-driven sentencing guidelines, judges could factor a defendant having been the victim of police brutality into their sentence under existing sentencing guidelines—as, for instance, in the federal system. The factors listed in the federal sentencing statute, 18 U.S.C. § 3553, are broad enough that judges already have the discretion to consider police brutality. Under § 3553(a), judges must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” and “the need for the sentence imposed . . . to provide just punishment for the offense.”57 57.18 U.S.C. § 3553(a).Show More For the reasons discussed in Part II supra, having been a victim of police brutality is part of the “history of the defendant” that reduces the need for a long sentence to provide just punishment for the offense. The capaciousness of the sentencing factors should already permit the courts to consider police brutality in issuing sentences.

Both legislature-driven and court-driven approaches have their benefits and drawbacks. A legislative (statutory or guideline-based) remedy would be more definite, but potentially less tailorable. Establishing fixed statutory guidelines for converting the severity of particular instances of police brutality to sentence time would be difficult. If courts were to instead lead the way, the remedy would be easier to implement—perhaps requiring no specific authorization—and easier to tailor in individual cases. But if the remedy were entirely a judicial creation, it might be applied more inconsistently, and some victims might go undercompensated.

Conclusion

This Essay has made the case for remedying police brutality through remedial sentencing. It has sought to show that remedial sentencing would deter police brutality and adequately compensate victims. It has focused on a few key details about the remedy. First, that it exists within the same process of criminal investigation and adjudication that produces police brutality. Second, that it provides victims a reduction in a state-imposed punishment as compensation for a state-imposed injury—compensation in the same form as the injury. Third, that it provides compensation commensurate in magnitude with the severity of the harm. Fourth, and finally, that it could be easily implemented, whether by legislatures, courts, or both.

Remedying police brutality through sentence reduction would not be a panacea to the problem of police brutality. It would deter it, but not entirely. It would go a long way towards restoring procedural fairness and reaffirming victims’ rights, but it would not bring victims complete justice—no remedy could. And it would never be available to victims of police brutality who are not actually charged with a crime. But the stakes of police brutality are so dire, and existing remedies so inadequate, that a remedy that could deter police brutality even a little further and bring some victims a little more justice would be well worth implementing.

  1. * J.D. Candidate, 2021, University of Virginia School of Law. Special thanks to the editors of the Virginia Law Review, especially Tyler Demetriou and Hayley Hahn, for their feedback. All errors are my own. ↑
  2. See Rosa Goldensohn, De Blasio Renders Split Decision on Video of Cop Punching Homeless Man on Subway, The City (July 20, 2020, 9:35 PM), https://www.thecity.nyc/2020/7/20/21332157/de-blasio-subway-video-nypd-cop-punches-homeless-man [https://perma.cc/Y9EP-UV3U]; Adam Harding, Man Hit, Choked and Maced by NYPD in Violent Arrest Video Plans to File $40M Lawsuit, NBC New York (July 17, 2020 2:29 AM), https://www.nbcnewyork.com/news/local/man-hit-choked-and-maced-by-nypd-in-violent-arrest-video-plans-to-file-40m-lawsuit/2518793/ [https://perma.cc/Q6AF-ESP9]. ↑
  3. Goldensohn, supra note 1. ↑
  4. Id. ↑
  5. Id. ↑
  6. See Harding, supra note 1. ↑
  7. The City, NYPD Subway Arrest, YouTube (July 14, 2020), https://www.youtube.com/‌watch?v=2lgK-apbl8Y [https://perma.cc/9FZ8-CFG8]. ↑
  8. Id. ↑
  9. Id. ↑
  10. Id. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Goldensohn, supra note 1. ↑
  16. Id. ↑
  17. N.Y. Penal Law §§ 70.15(1), 205.30 (McKinney 2019). ↑
  18. See Matthew J. Hickman, Alex R. Piquero & Joel H. Garner, Toward a National Estimate of Police Use of Nonlethal Force, 7 Criminology & Pub. Pol’y 563, 577–81, 588–89 (2008) (finding that several hundred thousand arrestees in 2002 experienced nonlethal force from an officer, such as being pushed, grabbed, kicked, hit, or held at gunpoint); Police Shootings, Vice News (Dec. 10, 2017), https://news.vice.com/en_us/article/a3jjpa/nonfatal-police-shootings-data [https://perma.cc/KT6V-NH35] (providing data on police shootings from 2010 through 2016 at the fifty largest local police departments in the U.S. and finding that “[f]or every person shot and killed by cops in these departments . . . police shot at two more people who survived”). Data on police brutality is extremely limited. In the past few years there have been some efforts to begin national data collection, but the complete results have not yet been published. See, e.g., National Use-of-Force Data Collection, FBI, https://www.fbi.gov/‌services/cjis/ucr/use-of-force [https://perma.cc/5V8L-V4CF] (last visited Mar. 18,
    2021

    ) (noting that “[t]he FBI released initial data when 40% of the total law enforcement officer population was reached” in July 2020 and that “[a]dditional data will be released at 60% and 80% participation levels”). ↑

  19. See, e.g., Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016). ↑
  20. Whether “police brutality” is coequal with those terms is subject to some disagreement. See, e.g., Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 Buff. L. Rev. 1275, 1276 (1999) (distinguishing “[p]olice brutality” from “police misconduct” on the basis that the former “is conduct that is not merely mistaken, but taken in bad faith with the intent to dehumanize and degrade its target”). ↑
  21. See generally Sandra Bass, Policing Space, Policing Race: Social Control Imperatives and Police Discretionary Decisions, 28 Soc. Just. 156 (2001) (detailing the history of race and policing from slave patrols to the war on drugs). ↑
  22. See, e.g., Richard Fausset and Shaila Dewan, Elijah McClain Died After He Was Detained. Now He’s Being Remembered., N.Y. Times (June 30, 2020), https://www.nytimes.com/2020/06/20/us/elijah-mcclain-police-killings.html [https://perma.cc/LU93-HQ7Q]; Adam Gabbatt, Protests About Police Brutality Are Met with Wave of Police Brutality Across U.S., The Guardian (June 6, 2020), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-us-george-floyd [https://perma.cc/GQ3J-G5Q7]. ↑
  23. See Nathan James et al., Cong. Rsch. Serv., R43904, Public Trust and Law Enforcement–A Discussion for Policymakers 2–
    3 (2020) (

    tracking declines in public confidence in the police in recent years

    ).

    ↑

  24. See Desmond Ang, The Effects of Police Violence on Inner-City Students, 136 Q.J. Econ
    . 115, 117

    –

    18 (2021).

    ↑

  25. See Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force, 127 J. Pol. Econ. 1210, 1213–14 (2019). ↑
  26. See Rachel A. Harmon, Legal Remedies for Police Misconduct, in 2 Reforming Criminal Justice: Policing 27, 33–35 (Erik Luna ed., 2017). ↑
  27. Id. at 35. See also Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Calif. L. Rev. 325 (2018) (discussing how Black and Hispanic tort claimants’ damage awards are under-calculated as a matter of course because of courts’ reliance on race-sensitive data). ↑
  28. Harmon, supra note 25, at 40–43. See also John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev. 789, 789 (2000) (discussing the “cycle of impunity[] by which the reluctance of local government to prosecute bad cops empowers future misconduct and drives communities to regard the police as adversaries”). ↑
  29. Harmon, supra note 25, at 45–46. ↑
  30. See Mapp v. Ohio, 367 U.S. 643, 654–55 (1961). ↑
  31. See, e.g., United States v. Cooper, 983 F.2d 928, 929–30 (9th Cir. 1993) (affirming the dismissal of an indictment after the government destroyed evidence in spite of defendant’s repeated requests to prosecutor to preserve the evidence); United States v. Bohl, 25 F.3d 904, 906 (10th Cir. 1994) (dismissing the case because the prosecution failed to adhere to the defendant’s request to preserve evidence); see also Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 815–19 (1999) (discussing different remedies for prosecutorial misconduct, including dismissal). ↑
  32. See Guido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol’y 111, 116 (2003); Harry M. Caldwell & Carol A. Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom, 78 Marq. L. Rev. 45, 73–74 (1994). ↑
  33. See generally Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509 (2009) (proposing sentence reduction as a remedy that would deter prosecutorial misconduct and have corrective and expressive value). ↑
  34. See Makenzie Way, Remedial Sentencing Legislation as a Tool for Reducing Overrepresentation in Correctional Facilities, Penn L. News (Jan. 6., 2020), https://www.law.upenn.edu/live/news/9534-remedial-sentencing-legislation-as-a-tool-for [https://perma.cc/4AJW-88SX]. ↑
  35. Although the Supreme Court of Canada has notably used a similar remedy at least once. See R. v. Nasogaluak, [2010] 1 S.C.R. 206, 208–10 (Can.). ↑
  36. See Mapp v. Ohio, 367 U.S. 643, 654–55 (1961); Miranda v. Arizona, 384 U.S. 436, 479 (1966). ↑
  37. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). ↑
  38. See Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 Seton Hall L. Rev. 335, 344–46 (2007) (discussing how double jeopardy bars retrials where a mistrial has been declared for prosecutorial conduct that was specifically “intended to provoke the defendant into moving for a mistrial” (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)) but not where the prosecutor’s conduct was intended to win at trial using impermissible means). ↑
  39. Namely, the Fourth Amendment’s prohibition on unlawful seizures and the Fifth and Fourteenth Amendments’ Due Process Clauses. ↑
  40. As in the case of Jacob Blake, whose shooting in Kenosha, Wisconsin, has received significant media attention. See Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Jan. 5, 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html [https://perma.cc/MX7Q-47QB]. ↑
  41. See Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (Aug. 7, 2018), https://innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/ [https://perma.cc/9ZNF-MHQA] (finding that “97 percent of [criminal] cases were resolved through plea deals”). ↑
  42. See Harmon, supra note 25, at 27–30. ↑
  43. See Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 289, 292 (1983) (arguing that to satisfy the criminal law goal of deterrence, the criminal process must set “[t]he optimal price for the offense,” which is “just high enough to require offenders to pay for all of the harm their crimes inflict”). ↑
  44. See, e.g., John Pfaff, The Perverse Incentives of Punishment, The Appeal (May 18, 2018), https://theappeal.org/the-perverse-incentives-of-punishment-7c1e32b18d07/[ https://perma.cc/WUF5-AZRV] (reporting an especially egregious example of this phenomenon, wherein Todd Entrekin, a sheriff in Etowah, Alabama, “pocketed at least $750,000 budgeted for feeding the people detained in his county jail,” enabling him to purchase a beach house while those incarcerated the jail ate meat “labeled ‘not fit for human consumption’”). ↑
  45. See Anthony W. Batts, Maddy deLone & Darrel W. Stephens, Policing and Wrongful Convictions, Nat’l Inst. Just.
    4 (2014),

    https://www.ojp.gov/pdffiles1/nij/246328.pdf [https://perma.cc/K5SJ-WCZK]. ↑

  46. See Easterbrook, supra note 42, at 292 (emphasizing that the price of committing an offense is a product of “[t]he penalty” imposed and “the probability that it will be imposed for a given offense”). ↑
  47. See Harmon, supra note 25, at 34–35, 43. ↑
  48. See Starr, supra note 32, at 1521. ↑
  49. The genesis of police brutality is a broad and hotly contested subject, but a few key ingredients include poor hiring and training practices, the militarization of the police, and institutionalized racism. See Robert E. Worden, The “Causes” of Police Brutality: Theory and Evidence on Police Use of Force, in Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice 149–64 (Edward R. Maguire and David E. Duffee eds., 2d ed. 2015) (providing an overview of various theories and studies of police use of force); Rosa Brooks, Stop Training Police Like They’re Joining the Military, The Atlantic (June 10, 2020), https://www.theatlantic.com/ideas/archive/2020/06/police-academies-paramilitary/612859/ [https://perma.cc/MBR9-68K5] (addressing the relationship between militarizing the police and police brutality and discussing promising efforts to train police to critically engage with the history of paramilitary police forces in the United States); Wayne McElrath & Sarah Turberville, Poisoning Our Police: How the Militarization Mindset Threatens Constitutional Rights and Public Safety, Project on Gov’t Oversight, (June 9, 2020), https://www.pogo.org/analysis/2020/06/poisoning-our-police-how-the-militarization-mindset-threatens-constitutional-rights-and-public-safety/ [https://perma.cc/KF74-5CHA]. (arguing that the militarization of police forces imperils public safety and freedom, and recognizing that racism is a fundamental feature of American policing). ↑
  50. See George Wood, Tom R. Tyler & Andrew V. Papachristos, Procedural Justice Training Reduces Police Use of Force and Complaints Against Officers, 117 Proceedings of the Nat’l Academy of Sciences of the United States of America 9815, 9815 (May 5, 2020), available at https://www.pnas.org/content/117/18/9815/ [https://perma.cc/2VJL-2BFR] (finding that large-scale implementation of procedural justice training reduced complaints and use of force). ↑
  51. See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992). ↑
  52. See Hickman, Piquero & Garner, supra note 17, at 577; see also Worden, supra note 48, at 149–51 (describing brutality in investigation and arrest). ↑
  53. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1529 (2000). ↑
  54. See infra Part III for discussion of the possible roles of legislatures, sentencing commissions, and courts. ↑
  55. They also might discourage judges from applying the remedy at all. There have been indications that judges are less likely to apply the exclusionary rule because it might overcompensate victims for the government’s violations of their rights—as Judge Calabresi has noted, judges “are not in the business of letting people out on technicalities.” Calabresi, supra note 31, at 112. ↑
  56. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); United States v. Booker 543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). ↑
  57. See, e.g., U.S. Sent’g Guidelines Manual § 1A1.1–3 (U.S. Sent’g Comm’n 2018). ↑

  58. 18 U.S.C. § 3553(a). ↑

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