Academic journal article Stanford Law Review

Developing a Taste for Not Being Discriminated Against

Academic journal article Stanford Law Review

Developing a Taste for Not Being Discriminated Against

Article excerpt

PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION. By Ian Ayres. ** Chicago: University of Chicago Press, 2001. 433 pp. + xi.

CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Edited by Francisco Valdes, ([dagger]) Jerome McCristal Culp ([double dagger]) & Angela P. Harris. ([section]) Philadelphia: Temple University Press, 2002. 414 pp. + xxi.

Let me begin these reflections prompted by Ian Ayres's Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination and Crossroads, Directions, and a New Critical Race Theory, edited by Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris, (1) in the classic style of outsider jurisprudence, with a story of my own experience. (2) Ian Ayres's Fair Driving (3) changed my life more directly than any other piece of legal scholarship has before or since. At the time he published this, the first installment of his empirical research into the higher prices car dealers tended to offer black and female customers, I had just begun teaching at the University of Virginia School of Law, where Ayres was then a visiting professor. I had moved to Charlottesville, Virginia from my native Manhattan anticipating that I would need to make many changes in my life, not the least of which would be the acquisition of a driver's license and a car. Getting the driver's license proved surprisingly easy. A decade later, however, I have yet to buy a car. There are many reasons for this, but I fear one of them is that among the things I read before heading out to the car dealerships to negotiate a purchase, in addition to standard informational material such as Consumer Reports, was Ayres's work. Fair Driving impressed on me the likelihood that, at the very least, I as a woman would be given a less favorable opening bid from the dealer than a man and that there was a good chance my final deal could be less favorable as well. I have an extremely strong taste for not being discriminated against. While I generally try not to be paranoid about the extent to which my sex may factor negatively into the way I am treated, Ayres's reinforcement of my suspicions was enough to paralyze my purchasing power. Not that I was too paralyzed to negotiate. To the contrary, I attacked the negotiations with more than my usual toughness (this in genteel Charlottesville) and in short order was offered deals knowledgeable friends urged me to take, better deals than some males of my acquaintance had been offered. But still, I was suspicious and unsatisfied. For me the question was not whether I could get a better deal than a man, but whether I could get a better deal if I were a man, a question I could not satisfactorily answer. (4) Just the thought of some dealer saying to himself, after I had signed on the dotted line, "There's another extra hundred bucks from another sucker female," was enough to cause me to find every offered price unsatisfactory.

From this personal experience I draw the two main themes I shall explore herein: first, the need to examine and articulate far more precisely the victim's preferences and concerns in shaping remedies for many of the kinds of discrimination Ayres and the Crossroads reader address; and second, the relationship of anecdote to data. One of the most striking contrasts between Pervasive Prejudice? and Crossroads is that the former centers on the perspective of the perpetrators of discrimination and the latter on the perspective of the victims. (5) By this I do not mean that the former is written primarily by a white male (6) and the contributors to the latter are almost all people of color or white women. Rather, I mean that Ayres's main concern is to establish to what extent and why discriminators discriminate, while the Crossroads reader stresses, in classic critical race theory fashion, the voices from the bottom and how discrimination affects them.

Taking seriously the emphasis on "Crossroads" and "Directions," Frank Valdes urges, in his contribution to the reader he helped edit, the need for "postsubordination vision as jurisprudential method," for "shifting the focus to visions, agendas, and projects of substantive security" so that "critical legal scholars from varied subject positions constructively can begin coalitional OutCrit theorizing by imagining and articulating the substantive end goal of our respective yet collective antisubordination activities and communities. …

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