Akbar on Black Lives Matter Jurisprudence

I want to talk about Amna Akbar's new article "Law's Exposure: The Movement and the Legal Academy," which deals with the legal ideas of the Black Lives Matter movement.  Cribbing now from her abstract:

This Essay sketches out the Movement for Black Lives' claims about law, argues that law faculty should be paying close attention to the movement's challenges to core empirical and methodological assumptions in our teaching and scholarship, and offers pedagogical techniques to welcome these challenges into our classrooms.

The movement's empirical claim is that law does not function as is often imagined, the imagination of law’s functioning being central to the legitimacy we invest in our system of government. This claim has many dimensions worth exploring, but here I point to two central applications: police killings and the disjuncture between procedural rights and substantive justice.

The movement's methodological claim challenges conventional wisdom about how law changes and the role of law in social change. Organizers have refused to work within the traditional confines of legal process or to celebrate law as the end of their struggle. Instead, they have lifted up disruption and contestation as tactics, and relied on law only as a tool for incremental change in a broader campaign for a radical restructuring. In the process, they have shed light on law’s operation, recast law’s morality, and questioned its relationship to haunting social problems.

The movement exposes to the mainstream what black communities have argued — and black freedom struggles have organized against — for centuries: Law is not fair, it does not treat people equally, and its violence is lethal and routine. Law is constituted by power and the powerful, and it changes for the benefit of the marginalized only when it is made to.

The movement's critiques may make us uncomfortable, and taking them on in the classroom may require risks — but we need to get uncomfortable. For too long, too many of us have looked the other way, even when we know better. It is time to look at the law beyond our conventional ways of seeing. It is time to bring in the people who for too long have been outside the classroom, and yet are so central to law’s operations.

A bunch of things interest me about this paper -- including the observation that courts are no longer at the forefront of the movement for social change.  (Change in law, as well as attitudes, I take it continues to be central -- though the changes in "law" are to police practices and to prosecutions and incarceration.)  I agree that BLM's critique of "law" has deep roots in African American thought -- from the Black Power literature back to the work of the pre-Civil War era, including David Walker's Appeal.  And certainly, as the veterans who took a stand to stop a lynching that resulted in the Tulsa riot of 1921 remind us, some people in the African American community  have been taking strenuous  efforts to protect lives for generations now.  Moreover, this makes me think again -- as I wrote in the context of Karl Llewellyn's foreword to the NAACP brief arguing that lynchers should be prosecuted -- that the tool kit of protesters contains some common themes.  Protesters often strive to de-legitimize the present by revealing that distributions of property and political power are grounded in past injustice and pointing out that "law" isn't neutral and fair.  In this regard, the arguments of Black Lives Matter seem to parallel a lot of what we've seen before.

The illustration is the "Hanging Tree Road" up in Southampton County, Virginia.  (This is a modern street name; it's not the place where Nat Turner was executed.)

Comments

[anon]

According to Nate Silver, formerly of the NYT, “Extending on an analysis by the academic Kieran Healy, I calculated the rate of U.S. homicide deaths by racial group, based on the CDC WONDER data. From 2010 through 2012, the annual rate of homicide deaths among non-Hispanic white Americans was 2.5 per 100,000 persons, meaning that about one in every 40,000 white Americans is a homicide victim each year. By comparison, the rate of homicide deaths among non-Hispanic black Americans is 19.4 per 100,000 persons, or about 1 in 5,000 people per year.”

Thus, according to Silver: “[T]here’s no other highly industrialized country with a homicide death rate similar to the one black Americans experience. Their homicide death rate, 19.4 per 100,000 persons, is about 12 times higher than the average rate among all people in other developed countries.”

Are the deaths of these black Americans attributable to “white people”? According to Politifact: “Northeastern University Criminology Professor James Alan Fox modified the FBI data files to estimate the characteristics of unsolved homicides and unreported cases. Fox’s data shows that the majority of people are killed by someone from their own race. For example, for 2010-13, his data showed that about 92 percent of blacks who were murdered were killed by other blacks, while the statistic for whites killed by whites was 81.5 percent. That is very close to the official numbers.”

Are the deaths of these black Americans attributable mainly to “the law”? The Guardian, last July, did what appears to be a credible study of FBI and other stats, and concluded: “Of the 547 (Americans) found by the Guardian to have been killed by law enforcement so far this year (as of July 2015), 49.7% were white, 28.3% were black and 15.5% were Hispanic/Latino. According to US census data, 62.6% of the population is white, 13.2% is black and 17.1% is Hispanic/Latino.” (The vast majority of these deaths were found to have been justifiable homicide. But, perhaps the BLM movement would have us stipulate that all were not, so be it: so stipulated for this purpose.)

In contrast, as reported in the Atlantic last September, “From 1980 to 2013, 262,000 black males were killed in America.” That’s about 8,000 per year. If my math is correct, that's about 8000 per year v. about 200 or less (with most of the latter ruled justifiable homicide and not in significantly greater proportion than white deaths from the same cause, especially given the level of violence reflected by the other facts mentioned above).

One wonders, as the question is often put: Do the lives of those murdered by their fellow citizens matter as much as the number (comparatively) murdered by "the law"? Of course, any murder by the police should be harshly punished. But, many evince seeming indifference to reasons for the murders of 90% or more of murdered black males.

Should legal academia focus on how we address the conditions that cause the ongoing slaughter of those lost to gang violence and otherwise motivated murders every day? Is a sole focus on police violence purposefully narrow minded and reflective of something less than intellectual honesty?

[anon]

In the words of Akbar: focus should be where violence truly is "lethal and routine."