A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
--Oliver Wendell Holmes (1)
Although the slang epithet "nigger" may once have been in common usage ... [it] has become particularly abusive and insulting ... as it pertains to the American Negro.
--Louis H. Burke (2)
[C]rimes motivated by bigotry usually arise not out of the pathological rantings and ravings of a few deviant types in organized hate groups, but out of the very mainstream of society.
--Jack Levin and Jack McDevitt (3)
Critical Race Realism is neither a novel term nor a novel concept. As early as 1992 and as recently as 2005, legal scholars Derrick Bell and Emily Houh, respectively, propounded this idea. According to Bell, "Black people need reform of our civil rights strategies as badly as those in the law needed a new way to consider American jurisprudence prior to the advent of the Legal Realists.... Racial Realism ... is a legal and social mechanism on which [B]lacks can rely to have their voice and outrage heard." (4) For Houh, "critical race realism encompasses not only the goals and methodologies of the broader critical race ... projects, but also some of the shared goals and methodologies of legal realism...." (5)
From our vantage point, Critical Race Realism is an amalgamation of Critical Race Theory and Legal Realism. As Critical Race Theory is the jurisprudential grandchild of Legal Realism, (6) both share similarities, but are yet quite different. Critical Race Theory was founded as "a race-based, systematic critique of legal reasoning and legal institutions." (7) Critical Race Theory was born out of the Critical Legal Studies movement. (8) Not only did it take part of its name from the adherents of Critical Legal Studies (crits), it took part of its ideology from the crits as well. For one, critical race theorists are "critical," quite like crits, in that they engage in a version of "trashing"--a hallmark of the crits. In this approach, they (1) take legal arguments seriously in their own terms, (2) discover that the arguments are "foolish," and (3) look for some order in the "internally contradictory, incoherent chaos [they have] exposed." (9) Critical Race Theorists do not endorse rights-trashing, like the crits. (10) Nonetheless, both sets of scholars engage in a "full frontal assault" on modern jurisprudence. (11) Earlier, the realists employed a similar technique called debunking. (12) This entailed subjecting questionable judicial opinions to logical analysis in order to expose their inconsistencies, unsubstantiated premises, and tendency to "pass off contingent judgments as inexorable." (13) Debunking flowed from two methods of attack: rule and fact skepticism. Rule skeptics argued that case decisions do not necessarily flow from general legal propositions--that logic did not govern judicial thought processes. (14) Other features were argued to have factored into the equation, (15) such as policy considerations. (16) Fact skeptics either argued that the facts found by the judge or jury are inconsistent with the actual facts (17) or that the reactions of judges and juries to facts are unpredictable. (18)
Despite these similarities, Critical Race Theorists are arguably distinguished from the realists in that the latter, and not the former, made the synthesis of law and social science a hallmark of their agenda. (19) The empirical exploits of Realists such as Charles E. Clark and William O. Douglas at Yale, (20) Underhill Moore at Yale, (21) and Walter Wheeler Cook and colleagues at Johns Hopkins (22) are well-documented. Many of the Critical Race Theory founders were formerly active in the law and society movement, which had its roots with the realists. (23) The crits, however, ultimately disagreed with their law and society colleagues on key issues. One issue that cleaved the crits from the law and society movement was the debate about the utility of empirical social science. In a 1977 article in the Law and Society Review, (24) crit theorist David Trubek assailed empirical social science. (25) First, Trubek suggested that empirical research legitimates the status quo in that it implies that facts researched were objectively "'there'" and "part of the permanent 'reality' of American culture." (26) Second, he argued that a scholar could not separate ideology from methodology in any type of research, including empirical research. (27) Ultimately, according to G. Edward White, Trubek argued that "to be politically reformist and methodologically neutral was a contradiction in terms." (28)
There is a current effort afoot, however, which seeks to reconcile Critical Race Theory with other elements of its realist roots. (29) As named by Bell and Houh, this movement is called Critical Race Realism. (30) As articulated by the authors, Critical Race Realism situates itself within the growing contemporary attempts--such as empirical legal studies, (31) the New Legal Realism Project, (32) and Behavioral Realism (33)--to integrate law and social science. Furthermore, its goal is to more systematically "enable and to compel law-making ... to take more account ... of the social facts upon which law must proceed and to which law must be applied." (34) This Article applies Critical Race Realist methodology in an effort to analyze how the law should construe the N-word in potential hate crime cases. It does so by systematically assessing the usage of that word on the part of Whites who might justify their usage by arguing that they are immersed in certain elements of Black popular culture. In addition to this analytic technique, the Article imports empirical research on implicit social cognition into our understanding of hate crimes law. In so doing, this Article adds to the scant legal scholarship on the N-word. (35)
Part II highlights a particular case in which a White person, who was allegedly immersed in Black culture, used the N-word during his assault of a Black man. Part III provides a general overview of U.S. hate crimes law and how racial epithets are traditionally viewed within this area of law. Part IV provides a brief historical and contemporary analysis of the N-word and how it has been and is understood. Part V makes two arguments in support of why, when the N-word is uttered in the context of a non-Black person committing a crime against a Black person, the crime should be construed as a hate crime. The first is that despite the proliferation of the N-word throughout Black popular culture, even Whites immersed in that culture generally do not use that word, especially when amongst Blacks they do not know very well. The second is that a remarkably large percentage of Whites harbor implicit and negative racial attitudes against Blacks. As such, a White person's utterance of the N-word while committing an act of violence or intimidation against a Black person may be seen as a leakage of these implicit racial biases. Part VI addresses why, despite Blacks' high rate of implicit anti-Black bias and more frequent use of the N-Word than Whites, the arguments we put forth about inter-racial hate crimes do not apply intra-racially among Blacks.
A HARVARD LAW PROFESSOR MAKES THE CASE: THE N-WORD DOES NOT NECESSARILY EQUAL RACIAL ANIMUS
On the morning of June 29, 2005, Glenn Moore, a twenty-three-year-old Black man, and his two friends trolled Howard Beach, a Queens, New York neighborhood. (36) Though they were looking for cars to steal, they stole no cars that night. (37) In the wrong neighborhood at the wrong time, Moore and his friends were chased by a group of young White men. (38) Among those men was Nicholas "Fat Nick" Minucci. (39) During the chase, Moore fell and was trapped by Minucci and his group. (40) Moore reported that Minucci called him "nigger" and said, "We'll show you not to come and rob White boys." (41) Minucci then robbed Moore of several clothing items and made him drop to his knees, whereupon Minucci struck Moore in the head with an aluminum bat while screaming "nigger." (42) At trial, witnesses testified that Minucci repeatedly and angrily called Moore "nigger" while chasing him and beating him in the head. (43) Albert Gaudelli, Minucci's lawyer, argued that Moore fractured his skull when he fell. (44) Frank Agnostini, one of Minucci's accomplices in the attack, testified that Minucci indeed hit Moore in the head and that the sound of the bat striking Moore's head "sounded like Barry Bonds hit a home run." (45) Minucci contended that he used the N-word as a benign address while preventing Moore from committing a crime. (46)
During the four-week trial, prosecutor Michelle Goldstein repeatedly used the bat to hit the juror box in an effort to approximate the sound the bat made when Minucci struck Moore. (47) As she did so, she noted that Minucci uttered the words, "You see what you get, nigger, for coming into our neighborhood?" (48) In contrast, Minucci's counsel, Albert Gaudelli, repeatedly argued that Minucci's use of nigger should be ignored--that Minucci's use of the word was not intended to be a racial epithet. (49) He explained that Minucci, raised in a racially diverse neighborhood next to Howard Beach, grew up with non-White friends and employed the N-word as part of his everyday vocabulary. (50) During his closing argument, Gaudelli indicated that "[p]eople use the word in different ways." (51) He went on to assert that "[t]here was no intent of bias or prejudice" (52) and to state: "You don't like that word. I don't like that word, no one over 30 likes it, but it's a fact that people under 30 use the word differently. Ignore this word, it's merely another descriptive word." (53) The jury took just over two days to convict Minucci of attacking Glenn Moore. (54) He was convicted of second-degree assault as a hate crime for the baseball-bat...