Copyright (c) 2008 All rights reserved. http://works.bepress.com/brant_lee Recent documents in Brant T. Lee en-us Sun, 24 Aug 2008 05:41:16 PDT 3600 http://works.bepress.com/brant_lee/5 http://works.bepress.com/brant_lee/5 Mon, 18 Feb 2008 17:48:57 PST Book Review. Brant T. Lee Race http://works.bepress.com/brant_lee/4 http://works.bepress.com/brant_lee/4 Mon, 18 Feb 2008 17:35:54 PST It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred. The paradigmatic examples are slavery and segregation; the icon is Bull Connor. Together, the Civil War and the civil rights movement comprise America's delivery from this original sin. In law, this redemption is reflected in the Emancipation Proclamation and in the fulfillment of the Civil War-era constitutional amendments [FN6] through Brown v. Board of Education and the antidiscrimination legislation of the civil rights era. Within this narrative, race discrimination is the problem, and it is an individual character defect. Applying methodological individualism consonant with law and economics analysis, racism is defined as an irrational preference, or "taste," an individual sin of commission. But we have all had the light revealed to us. And slowly, the old ways are said to be dying away. Continuing racial inequality is seen as a dwindling vestige of this tainted past. As race discrimination fades, racial inequality will surely follow. This is the hopeful sentiment expressed by Justice O'Connor in upholding a race-conscious law school admissions program: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." But we are living through the fifty-year anniversaries of many of the landmark events of the civil rights movement, and by many convincing analyses, deep and pervasive racial inequality persists. How can such inequality persist in the modern, enlightened era?The exhausted contestants in this arena are racism and merit. Although color-blindness has clearly prevailed as the dominant cultural paradigm, people of color continue to sense that the equal opportunity that color-blindness was supposed to deliver has never arrived. With the limited vocabulary that the mainstream narrative offers, however, racial equality advocates have had to theorize increasingly subtle forms of unconscious or hidden racism. Whatever the substantive merit of these theories, they have come up against a mainstream public mindset in which the majority of people, unsurprisingly, are convinced that they are not the evil racists of legend. Rather than confronting whatever forms of racism remain, this majority has instead adopted the philosophy, grounded in the rhetoric of classical economic theory, that impartial markets determine outcomes based on merit. Brant T. Lee Race http://works.bepress.com/brant_lee/3 http://works.bepress.com/brant_lee/3 Mon, 18 Feb 2008 17:29:46 PST In 1841, a Cuban slave ship called the Amistad was captured and taken into custody near Long Island. The forty-five Black people on board were alleged to be slaves, who had mutinied, murdered the captain, killed or expelled the crew and taken over the ship. Two Cubans found on the ship claimed to be their owners. There were salvage claims by the officers who captured the ship and its passengers and miscellaneous other claims by parties claiming a property interest in the ship or its cargo. The United States government intervened on behalf of the Queen of Spain in support of treaty rights regarding the restoration of the lost property of Spanish subjects, thus taking the side of the alleged slave owners. Astonishingly, the alleged slaves intervened on their own behalf, claiming not to be Cuban slaves at all, but illegally kidnapped free Africans, and the United States Supreme Court was eventually called upon to determine their fate.Based on all of the issues that spring from these facts, I find Amistad a useful Property case. In this Essay, I will describe how I teach the Amistad case to first-year Property students. Teaching Amistad works well both as a review and test of general property principles and as a "perspective" case, allowing the class to step back and examine the nature of property in general. Brant T. Lee Property http://works.bepress.com/brant_lee/2 http://works.bepress.com/brant_lee/2 Mon, 18 Feb 2008 17:22:43 PST When a dispute arose over the old Japanese Young Women's Christian Association ("YWCA") building in San Francisco's Japantown neighborhood, it seemed yet another example of a community institution inevitably ceding to the demands of the modern market economy. Instead, what has resulted has been an exercise in legal archaeology, a refreshing insight into the collective memory of the Japanese American community, and a legal theory that brings to light several central episodes in Asian American legal history and puts them to practical use in a contemporary property dispute.In 1996, the San Francisco YWCA decided it could no longer afford to maintain the old Japanese YWCA building at 1830 Sutter Street and wanted to put it up for sale in San Francisco's hot real estate market. Members of the Japanese American community were disturbed to hear of the YWCA's plans. They wanted to preserve the historic building as a community asset, but their efforts to persuade the YWCA to change its mind failed. When it became clear that no one in the community could come up with the $1.65 million the YWCA wanted for the building, it seemed as though the preservation effort was doomed.In an effort to save the YWCA building, a lawsuit was filed in 1997 by representatives of the Japanese American community. The lawsuit is striking in its originality. The plaintiff presents not only a moral claim to the property but also a legal property interest. In this Article, Professor Brant Lee explores how this single, extraordinary, contemporary case brings to light several of the most significant episodes in the last century of Asian American legal history. First, the plaintiff's legal theory is based on California's version of the Alien Land Laws which were intended to prohibit the ownership of property by Japanese immigrants. The Alien Land Laws were themselves dependent on the racially discriminatory federal naturalization law that was in place from 1790 through the first half of the twentieth century. Second, the cause of action relies in part on an aspect of the wartime internment of ethnic Japanese that has received little attention: the post-war return of camp residents to the coasts and the internal and external forces that prevented the reestablishment of vibrant Japanese neighborhoods and communities. Finally, this case is a good example of a situation in which the law should recognize a property interest based on the vulnerability of the Japanese American community in the early twentieth century and the reliance by Japanese Americans on the goodwill of white individuals and institutions which the law necessitated, even if the traditional formal prerequisites for a legal trust cannot be established. Lee argues that the case suggests a possible resolution of difficult questions regarding race-conscious trusts. Specifically, the case suggests an argument for judicial approval of race-consciousness in a particular circumstance: where a private act favoring a racial minority group is intended to evade specific historical legal discrimination against that racial minority group. Brant T. Lee Race http://works.bepress.com/brant_lee/1 http://works.bepress.com/brant_lee/1 Mon, 18 Feb 2008 16:58:08 PST In this Essay I demonstrate that a network economic analysis of race provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and it is difficult to dislodge for many of the same reasons. Network effects explain how (1) the establishment of a dominant market standard can be contingent on historical context, and it is not necessarily derived from superior intrinsic merit, and (2) a dominant standard exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in the absence of any explicit or conscious determination to maintain it. All of these factors are present with regard to the economic and cultural dominance of Whiteness in the United States. This insight casts new light on mainstream explanations of racial inequality, supporting the critique that (1) current racial inequality is not the result of unequal "merit," but is the legacy of history, and (2) no racist intent or conspiracy is required for this inequality to continue. Rather, specific intent and determination is required to dislodge it. Brant T. Lee Race