Racial Capitalism as Legal Analysis
JCRED Symposium Panel | WebEx, April 7, 2021, 9:45am-11:00am
As a legal journal dedicated to social, racial, and economic justice, the forthcoming symposium issue of the Journal of Civil Rights & Economic Development (JCRED) will explore the legal dimensions of our capitalist political economy and its systemically racist nature. To advance this conversation, JCRED seeks to highlight the work of scholars who are exploring the legal dimensions of Racial Capitalism and what lies beyond its horizon.
On April 7th, 2021, JCRED hosted a panel symposium where three such scholars offered presentations of their forthcoming articles, followed by a moderated discussion about how Racial Capitalism informs their legal analyses. The panelists and their articles were:
Prof. Chaumtoli Huq, CUNY School of Law,
Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anti-Capitalist Lawyering
What would an anti-racist contracts class look like? If we believe that we must equip our students to address structural racism in our profession, then, we must address it in the 1L year. For this reason, this year, I introduced my first-year contracts students to the concept of racial capitalism. Put simply: the theory of racial capitalism asserts that the development of capitalism was far from “neutral” or progressive but produced a racialized form of capitalism. Racism isn’t a byproduct of capitalism, rather we have a form of capitalism that is racialized in order to function which assigns measurable benefits based on race. Capitalism simultaneously birthed a modern racism. I note here that this framework is not offered at the exclusion of other critical theoretical frameworks but suggest to my students that we as a class deeply engage with the doctrine through this theoretical lens. On a broader level, my aim is that this approach models for students a disciplined inquiry to integrating theory into the class and to explore concrete lawyering approaches.
Prof. Marissa Jackson Sow, St. John’s School of Law
Whiteness as Contract
The year 2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—upon American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between the human and civil rights to which Black people are entitled and their living conditions has become readily apparent. Less visible human rights abuses, too, camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as social and financial inequalities have become ever starker. These abuses are not effectively reached by anti-discrimination law, leaving Black and Indigenous people with rights, but no remedies, as they are forced to navigate a degraded existence suspended somewhere citizen and foreigner, and more importantly, between life and death.
In analyzing the persistence, resilience, and agility of white supremacy in the United States, the Article proposes a departure from reliance upon the extant antidiscrimination legal frameworks in the United States. The Article offers up a theory as whiteness as contract, providing scholars, activists, and movement lawyers with a new prism of analysis for the structural and physical violence that those raced as Black endure at the express direction of the state. Despite federal law establishing formal racial equality with respect to citizenship, and with citizenship, the rights to contract and to property, an invisible common law sets forth that Black people are not in privity with the State and lack contractual capacity with the white body politic or its individual members. Under the terms of this contract for whiteness for which those raced as white have bargained, Black people lack the capacity to negotiate, occupy, or exercise a reliable authority over property. Moreover, whenever Black people are found to be in trespass on white property, they have no expectation of physical integrity, liberty, or life—or of remedies for breaches thereof.
An end to anti-Black state violence requires the revocation of the terms of whiteness and the institution of a new social contract in which Black people are accorded full political personhood, and full citizenship, complete with full contracting capacity and authority and full protection of their contracts and proprietorship. Scholars and advocates committed to ending structural and physical anti-Black brutality may use the new analytical prism proposed in this Article to explore new advocacy strategies and to consider meaningful racial justice remedies.
Prof. John Whitlow, CUNY School of Law,
The Real Estate State and Group-Differentiated Vulnerability to Premature Death: Race, Class, Geography, Pandemic
This paper explores Covid-19’s uneven unfolding along vectors of race, class, and geography, taking as its starting point Ruth Wilson Gilmore’s observation that racism is “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” The production of group-differentiated vulnerability to premature death is grounded in the concept of racial capitalism, which theorizes the ways in which racism and capital accumulation are imbricated and mutually-reinforcing. In this framework, capitalism is intrinsically racial, as it produces a deeply inegalitarian social order that is naturalized and reproduced through a complex of racialized ideologies and practices. The paper connects the racially disparate deadliness of the Covid-19 pandemic in New York City in the spring of 2020 to shifts in the political economy of capitalism over the past four decades, particularly the increasing centrality of the real estate industry, which is predicated on racialized value extraction and the intensification of inequalities.
Bios and background information about the panelists are available here.
Founded in 1985 as the Journal of Legal Commentary, the Journal of Civil Rights and Economic Development is committed to publishing-high quality scholarship and hosting innovative symposia on issues of social, racial, and economic justice.
In 2010, the Journal became the official journal of the Ronald H. Brown Center for Civil Rights at St. John’s University School of Law in Queens, New York.
The Journal publishes four issues each year, calling for submissions from scholars, practitioners, and students on a range of social, racial, and economic topics.