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Abstract:
This Article imagines the institution of punishment in the hip-hop nation. Hip-hop can be used to inform a theory of punishment that is coherent, enhances public safety, and treats every human being with respect. As a top-selling genre of music in the United States, hip-hop already has had a significant social impact. Now, in a remarkable moment in American history, popular music is weighing the costs and benefits of punishment. In a Rawlsian sense, members of the hip-hop nation are best positioned to establish a criminal justice system; they are, demographically, most likely to be victims of crime and most likely to be accused of crime.

Hip-hop exposes the current punishment regime as profoundly unfair. It demonstrates this view by, if not glorifying law breakers, at least not viewing all criminals with the disgust which the law seeks to attach to them. When too many people are absent from their communities because they are locked up, criminal justice has unintended consequences. In a hip-hop jurisprudence, retribution would be the object of punishment, but it would be contained by important social interests.

Part I discusses the relationship between popular culture and criminal law. Part II provides a short history of hip-hop culture, with special attention to the rule-breaking that attended the culture's birth. Part III describes hip-hop's relevance to the current debate in criminal law scholarship about social norms. Part IV sets forth several elements of a hip-hop theory of criminal law. The Article concludes by comparing hip-hop justice with constructs of justice found in civil rights and critical theory.

incarceration, punishment, deterrence, hip-hop, rehabilitation, retribution, incapacitation, popular culture, rap, sentencing, social norms, drugs, crack

Abstract:
What should a judge do when she must apply law that she believes is fundamentally unjust? The problem is as old as slavery. It is as contemporary as the debates about capital punishment and abortion rights. In a seminal essay, Robert Cover described four choices that a judge has in such cases. She can (1) apply the law even though she thinks it is immoral; (2) openly reject the law; (3) resign; or (4) subvert the law by pretending that it supports the outcome that the judge desires, even though the judge does not actually believe that it does. This Article demonstrates that the fourth choice - judicial "subversion" or lying - is far more common than is openly acknowledged.

The Article identifies cases in which, the evidence suggests, judges intentionally have framed the law to achieve a particular outcome. The Article also suggests that this kind of lie is occasionally justified. There is a thin line between enforcing law that is profoundly immoral and being complicit with it.

The Article sets forth a moral theory of subversion, which would allow judges to ethically mediate conflicts between law and morality. It recommends judicial lying only when it will thwart extreme injustice - a recommendation that would reduce the subversion that is now endemic in our justice system. The Article situates its moral theory of subversion alongside other theories of adjudication that tolerate rules-departure and other ethical constructs that permit ends-justified lying. Recognizing that subversion is a controversial strategy, the Article concludes with an argument against symbolic or moderate responses to profound injustice.

Subversion, justice, slavery, morality, judiciary, Kozinski, death penalty, jurisprudence, ethics

Abstract:
More questions have been raised about the race bias of the late Chief Justice William Rehnquist than of any other recent member of the Supreme Court. A judge's race bias may be reflected in his race jurisprudence. This contention turns out to be surprisingly difficult to prove. When a Supreme Court Justice writes an opinion, he explains himself in a way that lends itself to insulation from charges of bias. Even widely reviled decisions like Dred Scott and Korematsu do not read as overtly racist.

This article explores the possible connections between the considerable evidence that Rehnquist was race-biased and the fact that he ruled against African-American and Latino litigants in virtually every civil rights case during his three decades on the Supreme Court. It evaluates the claims that (1) the racism charge is unfair, (2) race bias is irrelevant to the work of Supreme Court justices, (3) unconscious racial bias colored Rehnquist's decision making, (4) overt bias determined Rehnquist's decisions, and (5) Rehnquist's decisions were consistent with his conservative ideology and non-race-based.

The article uses Rehnquist to draw lessons for evaluations of other judges and judicial candidates. Often conservative judges and race-biased judges would come out the same way in civil rights cases, but most people would evaluate those judges quite differently. Racist intent may matter more than some scholars suggest it should.

Recent developments in social science cast light on the power of unconscious racism; these advances raise concerns about pragmatic judges and minimalist opinions.

race, racism, race jurisprudence, civil rights, discrimination, racial discrimination, Supreme Court, Rehnquist

Abstract:
This Article asks whether violence or subversion of the criminal justice system are morally acceptable tactics to change racially discriminatory laws. It examines two provisions of federal criminal law that some people perceive as discriminatory against African Americans. The relevant laws involve the death penalty and the differing punishments for crack cocaine and powder cocaine. The Article considers the permissible range of tactics that concerned citizens can use to change those laws, if the traditional methods of petitioning the political and judicial branches of government seem ineffectual, or to take too long.

The Article rejects the instrumentalist approach inherent in Malcolm X's famous recommendation that blacks use "any means necessary" to combat discrimination. It recommends that minorities consider the full range of their powers, but that they be guided, and ultimately limited, by morality. Morality does not, however, mandate acquiescence to race discrimination, or even a moderate response to it. The Article advises that, for guidance on morally appropriate tactics, minorities consult the international law doctrine of "just war."

In applying this doctrine to American race relations, interesting questions are raised. If, for example, the death penalty discriminates against African-Americans (and especially if some blacks are executed when similarly situated non-blacks are not executed), how far can concerned citizens go in preventing its administration? Should they lie to get on death penalty juries? Should they commit terrorist attacks against executioners? In the case of lesser discrimination, such as that perceived in the crack cocaine laws, would the same tactics of violence or subversion be acceptable? The Article considers whether a cost of being an unpopular minority in a democracy is that the minority must suffer some discrimination, even in those cases in which the minority believes it can end the discrimination by using radical means.

Abstract:
Punishment is violent, but it is violence with a purpose. The same observation might be made of terrorism. This Article compares instrumentalist justifications of utilitarian punishment and terrorism. Both terrorism and the harsh punishment for crimes favored by American criminal justice are premised on a construct of cost-benefit analysis that, while (arguably) efficient, is immoral. The Article argues that both terrorism and excessive punishment can be justified by instrumentalism, but neither should be. The comparison of terrorism and American criminal justice does not mean that they are equally bad. Terrorism is worse. There are, however, many people in the United States who are punished for social, not individual ("just desert"), objectives. When we remember that punishment is the "deliberate infliction of pain" we understand that the state is intentionally hurting people to achieve some goal. This is not as bad as what terrorists do, but the difference is one of degree, not kind.