| The Law and Economics of Critical Race Theory |
| Devon W. Carbado and Mitu Gulati [View as PDF] |
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112 Yale L.J. 1757 (2003) Our story is about the production and consumption of racial prototypes. The regulatory thrust of homogeneity creates both a demand for, and a supply of, specific racial prototypes--outsiders who can fit within predominantly white workplace cultures without "disturb[ing] the equilibrium of familiarity and sameness." This Review began by suggesting that part of the reason this dynamic is obscured in CRT is because CRT has not paid attention to the interpersonal contexts--the micromarkets (e.g., employer/employee identity transactions)--in which race is produced. This Conclusion returns to the macro to make two points. The first links the micro discussion of prototype production in the workplace to the broader societal context; the second suggests some other areas of interest where the CRT/L&E approach might shed new light. First, the problem we have described is part of a larger problem that Philomena Essed and David Goldberg refer to as "cloning cultures," which they define as the "broad social(ly manifest) dispositions to reproduce sameness." They argue that "a critical account of systems of preference for sameness--from kinship to nation, from aesthetics to production and consuming--can be revealed as contributing to the reproduction of systems of social distinction and privilege." Our aim has been to provide a concrete indication of how such a system manifests itself in the context of the workplace. But Essed and Golberg's paper suggests that there is a more problematic implication of our project: the social manufacturing of racial palatability--one body at time. Put differently, our argument suggests that racial difference is being commodified and cloned in the workplace. Articulated thus, the homogeneity incentive operates as the driving force for a kind of cloning. Outsider performances of racial palatability are the raw materials from which homogenized outsider identities are manufactured. Yet there is an important difference between the cloning problem we identify and that upon which Essed and Goldberg focus. For the most part, Essed and Goldberg are concerned with "problematiz[ing] the systemic reproduction of white, masculine homogeneity in high status positions," a reproduction that causes "exclusion along racial, ethnic, gender, sexual, class and other structural demarcations." Their analysis does not account for the "diversity constraint"--that is, the need for institutions (and, presumably, the nation) to maintain some degree of difference. With the diversity constraint in mind, the cloning issue is no longer just about reproducing insiders. One has to think about the production and cloning of outsiders as well. Our Review focuses on the incentive for employers to create a market for, and to facilitate the cloning of, racially palatable outsiders. For institutional legitimacy and antidiscrimination reasons, the cloning market cannot produce, or transact in, only white clones. Nor would employers want to do so. One reason why racial palatability is valued is that the racial bodies that produce it remain intelligible as nonwhite. To the extent that racial palatability takes the form of passing, it engenders white racial anxieties. To be valuable, the outsider prototype must be recognizable as a "copy." It must not pass for, but only approximate, the "real." The second macro implication of our thesis relates to the general critique of prototypes. Here, we suggest that analysis of the microdynamics of workplace racial discrimination might be extended to analyze other problems. In this context, one can think of a prototype as a mental shortcut to categorize unfamiliar situations. We all have images in our minds as to prototypical rape victims, sexual harassers, welfare recipients, and so on. To the extent that actors in the legal system use these prototypes to decide cases--for example, prosecutors or juries deciding whether a rape occurred by looking to see whether the victim fit the prototypical image of a rape victim, as opposed to asking whether the facts satisfied the elements of the crime--this can cause systemic errors. Consider, for example, Martha Chamallas's critique of the rape prototype. Chamallas explains that, with rape, the prototype is stranger rape, where the perpetrator is often a black male and the victim a white woman. Most rapes, however, occur between acquaintances, between people of the same race and class, and on dates. Reasoning from prototypes, therefore, presents the danger that most rapes will go unpunished because they do not fit the prototype. Further, rapes by black men of white women will be disproportionately punished, whereas rapes by black men and white men of black women will receive less punishment. Leti Volpp makes a similar point about domestic abuse--more particularly, battered woman syndrome. She argues that this syndrome is based on a "'model' battered woman," in other words, a prototype: a woman who is "passive and helpless." Volpp demonstrates the extent to which judges refuse to give a battered women's instruction in cases in which they perceive that the domestic abuse victim is not a model battered woman. She concludes that because "battered women's syndrome exemplifies a stereotype of passive married middle-class white women, it may be especially difficult for battered women of color and gay men and lesbians to fit the model." An L&E-oriented approach to prototypes could elaborate upon Chamallas's and Volpp's critique by asking two questions. (1) How do prototypes incentivize behavior? And (2) what are the costs of responding to the incentives that prototypes create? If the protection of rape laws accrues only when women behave in a particular manner (let us say, "modestly"), that means that women who want the protection of the rape laws have an incentive to present themselves in ways that fit the protected prototype. In this sense, the price of receiving legal protection is the cost of acting in a manner that fits the prototype. These costs may be higher for some than others. For example, if modesty is defined in terms of white upper-class behavior, it may be costly and difficult (even if not wholly impossible) for minority women to perform their identity in a manner that fits that prototype. Further, quite apart from shaping how women perform their identities in the real world of social interactions, the existence of prototypes shapes how women present themselves at trials. To access battered woman's syndrome, for example, there is an incentive for women to highlight their passivity and lack of agency. On the other side, from the usually ignored perpetrator's perspective, there is an incentive to attack women who do not fit the prototype. This is part of what explains black women's historical vulnerability to rape. Chamallas's and Volpp's papers are part of a larger critical literature that demonstrates the problems of prototypes. What remains to be considered is the regulatory and productive effects these legal prototypes have on the identities in question. For whether the prototype in question implicates sexual harassment, hate speech, rape, or welfare law, identity is being cloned. Heretofore, critical race theorists have not seriously engaged this productive capacity of law. |