January 2017 Bar Bulletin
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New Ways to Learn about Old (Overt) and New (Covert) Racism in the Law

By Marc Lampson

Public Services Attorney

 

 

The history of the law being used for racist ends in the United States is not new. From the slave trade, the three-fifths compromise, the broken treaties with Native Americans, the Donation Land Acts, to Jim Crow laws, restrictive covenants, poll taxes and school segregation, the list could go on and on. This long, sad history, this overt racist history, is thankfully a thing of the past, though we still live with its legacy and its less visible, but still virulent, offspring.

Tracing the historic laws that justified the racist practices from slavery to segregation is not always easy to do in the law library. Law review articles, however, can often help. In the old days of legal research, to find law review articles on point one would use clunky and chunky print indices such as the Current Law Index or the Index to Legal Periodicals. The process was often laborious, involving multiple volumes to make sure one had found the most pertinent and most recent material.

The new — or at least newish — and far better way to find law review articles is online of course. But searching the “free” Internet can be a hit or miss process and far from comprehensive. You can find some excellent law review articles, for instance, as well as case law, through Google Scholar (https://scholar.google.com). But what exactly is indexed and retrieved by Google Scholar vis-à-vis law review articles is unclear.

Fortunately for those who can visit the Public Law Library of King County, there are far more reliable ways to search for and retrieve law review articles, for free. One can search and retrieve articles through WestlawNext, LexisNexis and HeinOnline. The Library offers all three of these databases for free to patrons for two hours per day.

Having endured, along with the rest of you, the recent presidential election, the rise of the alt-right, immigrant bashing and Islamophobia (not to mention misogyny and boasts about sexual assault), I wanted to see what was being written by scholars about racism and the law today. I chose the HeinOnline database because for me it seems the simplest, most direct path to law review articles.

On one of the days I logged on, HeinOnline was featuring, among other things, access to a collection entitled “Slavery in America and the World: History, Culture & Law.” The site states that the collection:

… brings together, for the first time, all essential legal materials on slavery in the United States and the English-speaking world. This includes every statute passed by every colony and state on slavery, every federal statute dealing with slavery, and all reported state and federal cases on slavery.

The collection appears to be a milestone and one worthy of long examination by scholars and interested others. It is also said to include “all modern law review articles on the subject.” But my focus on this day was broader so I went on to the search page where you can “browse collections by name.”

I chose the “Law Journal Library” collection and clicked on “advanced search,” though my query was simple. I searched for articles with the word “racism” in the title and, by clicking out of options, narrowed the search to “articles.” In the resulting list of 421 items, I sorted them by date, the newest first. I then further “filtered” the results to just those articles concerning the United States – 309.

Bam! Here not only were the citations, but full-text access to the kinds of articles I had wanted to find, some of which I list here informally:

• “Jury Room Racism is Protected. It Shouldn’t Be,” by Noah Feldman in the journal Supreme Court Preview, Vol. 2016–2017, starting on page 18.

• “Redskins: The Property Right to Racism,” by M. Alexander Pearl in the Cardozo Law Review, Vol. 38, Issue 1, October 2016, beginning on page 231.


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