On "Color-blind" and the Algorithm

• Pages: 1385-1407
• Date: 01 June 2024
• Published date: 01 June 2024
• Author: Jessica M. Eaglin
• Subject Matter: Derecho Civil

On “Color-blind” and the Algorithm

JESSICA M. EAGLIN*

“Earthling?”

I jump and bump my head on the underside of a bookshelf. It is a

quiet Monday in late summer, right before the start of the school year. I

am unpacking boxes of books. To suggest that I am distracted would be

an understatement. Yet, when I hear that airy call behind me, I know

who it is.

“AJ, hello,” I call out as I turn to open yet another box of books.

“What brings you back to visit me on this planet?”

“Earthling, I have been quite interested to learn more about race,

algorithms, and law after our last conversation.

1

I need your help.”

I sigh. It’s very early in the day for such a conversation. But such is

the way with this curious alien, who likes to appear before (or, in this

instance, behind) me at inopportune times.

“If everyone knows race in society, why does it matter whether an

algorithm ‘knows’ race in law?”

“Well, everyone is aware of race in society. But most people do not

understand race at all. That’s part of what my research considers in the

context of criminal law reforms.” I begin to stand up. “In law—”

You might think the presence of an alien would startle me. It did not.

But when I turn around to address AJ directly, I jump. The alien no lon-

ger looks like an alien to me. It looks, instead, a bit like a human.

“AJ, I don’t mean to be rude here, but what happened to your green

skin and your three eyeballs? Why aren’t you hovering in the air like

before? Today you look like . . . a human.”

“Earthling, I take many forms. My people operate mostly through what

you might call sensory engagement. You sensed me as a three-eyed green

thing the last time we spoke. Those features informed you that I am not of

your world, and so that is how I appeared to you. I wish to communicate

with you, and so you ‘hear’ me in your language, though my words are

not audible to others.

“Today, I have decided to take another form. I am trying to understand

your people and their relationship to technology and law, so I decided to

* Professor of Law, Cornell Law School. © 2024, Jessica M. Eaglin. Thanks to I. Bennett Capers,

Richard Delgado, Amy Kimpel, Jamelia Morgan, Cierra Robson, and participants at the University of

Alabama Law School Faculty Workshop for meaningful feedback on earlier drafts of this Essay. Many

thanks to the organizers and participants of The Georgetown Law Journal’s 2023 Symposium,

Afrofuturism and the Law, and to the GLJ Editors. All errors are my own.

1. For more on AJ’s f‌irst visit to my off‌ice, see Jessica M. Eaglin, When Critical Race Theory Enters

the Law & Technology Frame, 26 MICH. J. RACE & L. (SPECIAL ISSUE) 151, 151–54, 168 (2021).

1385

try to look like one of your people, too. And since I am engaging with

you, I thought I might as well look like you.”

How strange. The alien does look a bit like me. It is a little shorter

than me. It has the same tightly coiled hair. It has brown skin like mine,

though of a slightly different shade. While my brown eyes are bespec-

tacled with thick black glasses, it has no eyes. Rather, empty blue light

shines from the spaces that would be eyeballs on a human face. Each

gaping hole shines brightly, like a beacon from a lighthouse. Where the

third eye once sat on its forehead, a blue amethyst jewel now rests.

2

See Paul Lewin, Cover Art for the Limited Edition of N.K. JEMISIN, HOW LONG ‘TIL BLACK

FUTURE MONTH? (Subterranean Press 2020) (2018), https://subterraneanpress.com/how-long-til-black-

future-month-1/ [https://perma.cc/DZN7-FB7N] (last visited Apr. 14, 2024).

I take a deep sigh. It will be a little more challenging to “talk” to AJ

now. When AJ looks like an alien, it is easier to remember that we do not

share the same sets of assumptions about the world.

3

With AJ in human

form, I may quickly forget. But who am I to impose a specif‌ic body form

on a visiting alien? I’ll just have to make do.

“Back to my question, Earthling. If everyone is aware of race because

it is socially determined, why does it matter whether and how algorithms

are aware of race in law?”

2.

3. Easier, but not easy. See Eaglin, supra note 1, at 153–54 (struggling to explain race to the alien

without shared social assumptions). Science f‌iction is a mode through which we grapple with and

imagine the intersection between science, technology, and society. Cf. Sheila Jasanoff, Future

Imperfect: Science, Technology, and the Imaginations of Modernity, in DREAMSCAPES OF MODERNITY:

SOCIOTECHNICAL IMAGINARIES AND THE FABRICATION OF POWER 1, 1–2 (Sheila Jasanoff & Sang-Hyun

Kim eds., 2015) (“[W]orks in this [science f‌iction] genre are also fabulations of social worlds, both

utopic and dystopic.”). Shapeshifting is a common trope through which defamiliarization occurs in the

fantasy and science f‌iction genres that undergird some threads of Afrofuturism. See generally, e.g., N.K.

JEMISIN, THE BROKEN KINGDOMS (2010). Defamiliarization “refers to the many ways that an author can

make a familiar thing seem strange or different so that this familiar thing moves from mundane and

predictable to surprising, interesting, and thought-provoking.” SAMI SCHALK, BODYMINDS REIMAGINED:

(DIS)ABILITY, RACE, AND GENDER IN BLACK WOMEN’S SPECULATIVE FICTION 114 (2018). It is “a major

nonrealist method through which black women’s speculative f‌iction reimagines the possibilities and

meanings of the categories of (dis)ability, race, gender, and sexuality and thereby change the rules of

interpretation and analysis.” Id.

In deploying speculative f‌iction within legal storytelling, I consciously build upon the work of critical

race legal scholars who infuse narrative and perspective into legal scholarship as a means to challenge

powerful assumptions that shape legal discourse. See, e.g., Richard Delgado, Storytelling for Oppositionists

and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413 (1989) (“Stories, parables, chronicles, and

narratives are powerful means for destroying mindset — the bundle of presuppositions, received wisdoms,

and shared understandings against a background of which legal and political discourse takes place.”);

PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 7–8 (1991) (“I would like to write in a way

that reveals the intersubjectivity of legal constructions, that forces the reader to both participate in the

construction of meaning and to be conscious of that process. . . . To this end, I exploit all sorts of literary

devices, including parody, parable, and poetry.”); DERRICK BELL, FACES AT THE BOTTOM OF THE WELL:

THE PERMANENCE OF RACISM 158–94 (1992); I. Bennett Capers, Afrofuturism, Critical Race Theory, and

Policing in the Year 2044, 94 N.Y.U. L. REV. 1, 26–29 (2019). Fusing speculative f‌iction and legal

storytelling offers a lens to surface and interrogate open-ended, collective belief formation in the United

States.

1386 THE GEORGETOWN LAW JOURNAL [Vol. 112:1385