Academic journal article Stanford Law Review

(Er)race-Ing an Ethic of Justice

Academic journal article Stanford Law Review

(Er)race-Ing an Ethic of Justice

Article excerpt

INTRODUCTION

For several years, I have pursued a project devoted to the study of race, lawyers, and ethics in the American criminal justice system. Building on the evolving jurisprudence of Critical Race Theory,(1) the project spans a series of case studies investigating the rhetoric of race, or race-talk, in the prosecution and defense of racially motivated violence. The first work of the series examines the rhetoric of race in cases of black-on-white racially motivated violence, highlighting the self-subordinating, racialized defense of Damian Williams and Henry Watson on charges of beating Reginald Denny and others during the 1992 South Central Los Angeles riots.(2) The next work inspects racial rhetoric in cases of white-on-black racially incited violence, extrapolating other-subordinating, racialized defense strategies from the criminal and civil trials of the United Klans of America and several Ku Klux Klan members in the 1981 lynching of Michael Donald in Mobile, Alabama.(3) A third work analyzes the discursive and symbolic meaning of race in double trials involving successive state criminal and federal civil rights prosecutions, citing the trials of Lemrick Nelson and Charles Price arising out of four days of interracial violence in the Crown Heights section of' Brooklyn, New York in 1991.(4) A forthcoming work explores the federal criminal prosecution of five white New York City police officers on charges of physically and sexually assaulting Abner Louima, a young Haitian immigrant, at a Brooklyn station house in 1997.(5)

The purpose of this ongoing project is to understand the meaning of racial identity, racialized narrative, and race-neutral representation in law, lawyering, and ethics. To that end, the case studies serve as a means to develop working hypotheses regarding the sociolegal experience of subordination: specifically, the subordinating discourse and imagery of race trials, the nature of client and community harm caused by such subordination, the color-coded partisanship of purportedly race-neutral ethics regimes that countenance such subordination, and the legitimacy of alternative race-conscious ethical regulation. The process of reworking these hypotheses, one hopes, will not only reveal the sociolegal structures of racial violence in American history, but also reconstruct dominant visions of racial dignity and community in American law.

The reconstructive nature of this project derives in part from the teachings of Critical Race Theory and the emerging voices of color in Asian-Pacific(6) and LatCrit scholarship.(7) Unlike traditional canons of colorblind or color-coded representation, the vision of practice underlying this growing jurisprudential movement implies an ethic of good lawyering based on a color-conscious, contextual approach to civil and criminal advocacy.(8) Still formative, the approach strives to accommodate the identity interests of client dignity and community integrity and, at the same time, to heed the injunction of effective representation.(9)

The centrality of context to this approach lends added significance to the celebrated publication of William Simon's The Practice of Justice: A Theory of Lawyers' Ethics. Together with the new wave quartet of Robert Gordon,(10) David Luban,(11) Deborah Rhode,(12) and David Wilkins,(13) Simon stands among the preeminent scholars in legal ethics, singular in his deft integration of critical theory into the study of the legal profession. Simon's trenchant critique of the profession and its jurisprudential underpinnings gives direction to second wave projects like the one at hand. Indeed, The Practice of Justice provides a normative framework for designing race-conscious, community-regarding duties of legal representation. Instead of simply rehearsing Simon's critique and casting objections against it, this essay endeavors to put Simon's book to work in the service of fashioning an ethic of representation in race cases. …

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