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Abstract:
This brief essay discusses the use of a slavery case, the Amistad, in teaching a first-year Property Law course. It argues that teaching about slavery in the first year of law school not only emphasizes the significance of race issues in American legal history, but also helps students to connect broader philosophical ideas to the rules at hand. The essay reviews the facts underlying the Amistad case, including reference to the movie about the case and to intellectual property issues that arose in the making of the movie. The essay then traces the deployment in the Amistad case of the standard property themes of possession and title. The essay closes with suggestions about how to connect the discussion of the Amistad to broader themes in property law.

slavery, property, possession, title, race

Abstract:
Network economic analysis provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and difficult to dislodge for many of the same reasons. Network effects explain how the establishment of a dominant market standard 1) can be contingent on historical context, 2) does not necessarily derive from superior intrinsic merit, and 3) exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in the absence of any explicit or conscious determination to maintain it. All of these factors are present with regard to the economic and cultural dominance of Whiteness in the United States.

Whiteness works like a network standard in three important ways: 1) increasing returns to scale arising from communication standards drive markets toward a single dominant racial standard; 2) various kinds of positive feedback in complementary markets make the dominance of the Whiteness standard sticky, or resistant to change; and 3) the establishment of Whiteness as the dominant racial standard is due to historical events rather than to any inherent or natural qualities. This insight casts new light on mainstream explanations of racial inequality, supporting the critique that: 1) current racial inequality is not the result of unequal merit, but is the legacy of history; and 2) no racist intent or conspiracy is required for this inequality to continue - rather, specific intent and determination is required to dislodge it.

critical race theory, network economics, law and economics, whiteness, brands, standards

Abstract:
Network economic analysis provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and difficult to dislodge for many of the same reasons. Network effects explain how the establishment of a dominant market standard 1) can be contingent on historical context, 2) does not necessarily derive from superior intrinsic merit, and 3) exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in the absence of any explicit or conscious determination to maintain it. All of these factors are present with regard to the economic and cultural dominance of Whiteness in the United States.

Whiteness works like a network standard in three important ways: 1) increasing returns to scale arising from communication standards drive markets toward a single dominant racial standard; 2) various kinds of positive feedback in complementary markets make the dominance of the Whiteness standard "sticky," or resistant to change; and 3) the establishment of Whiteness as the dominant racial standard is due to historical events rather than to any inherent or natural qualities. This insight casts new light on mainstream explanations of racial inequality, supporting the critique that: 1) current racial inequality is not the result of unequal "merit," but is the legacy of history; and 2) no racist intent or conspiracy is required for this inequality to continue - rather, specific intent and determination is required to dislodge it.

network economics, critical race theory, discrimination, positive feedback, networks, whiteness, standards

Abstract:
This brief essay explores the recurrent themes raised in the investigation and prosecution of Wen Ho Lee for espionage in the absence of any evidence that he passed any information to any foreign agent. In this essay I reflect on 150 years of American legal history and show how Asians in America have been legally and socially constructed as foreign, and how that foreignness translates into distrust and presumptions of disloyalty in various circumstances. Elements of my own personal family history are woven into the discussion. I trace how that presumption of disloyalty has played into the Wen Ho Lee prosecution. Finally, I describe some of the complex repercussions this presumption creates in the formation of Asian American racial identity.

Asian American, foreign, social construction, discrimination, race

Abstract:
When the dispute arose over the old Japanese YWCA building in San Francisco's Japantown neighborhood, it seemed yet another example of a community institution inevitably ceding to the demands of the modern market economy. Yet what has resulted instead has been an exercise in legal archeology, a refreshing of the collective memory of the Japanese American community, and a legal theory that brings to light several central episodes in Asian American legal history and puts them to practical use in a contemporary property dispute.

In 1996, the San Francisco YWCA decided it could no longer afford to maintain the old Japanese YWCA building at 1830 Sutter Street, and wanted to put it up for sale in San Francisco's red-hot real estate market. Members of the Japanese American community were disturbed to hear of the YWCA's plans. They wanted to preserve the historic building as a community asset. But their efforts to persuade the YWCA to change its mind failed. When it became clear that no one in the community could come up with the $1.65 million the YWCA wanted for the building, it seemed as though the preservation effort was doomed.

The lawsuit filed in 1997 by representatives of the Japanese American community is striking in its originality. The plaintiffs present not only a moral claim to the property but a legal property interest. This article explores how this single extraordinary contemporary case brings to light several of the most significant episodes in the last century of Asian American legal history. First, the plaintiffs' legal theory is based on California's version of the Alien Land Laws, which were intended to prohibit the ownership of property by Japanese immigrants. The Alien Land Laws were themselves dependent on the racially discriminatory federal naturalization law that was in place from 1790 through the first half of the twentieth century. Second, the maintenance of the cause of action in the Japanese YWCA case relies in part on an aspect of the wartime internment of ethnic Japanese that has received little attention: the postwar return of camp residents to the coasts and the internal and external forces that prevented the reestablishment of vibrant Japanese neighborhoods and communities. Finally, I suggest that this case is a good example of a situation in which the law should recognize a property interest based on the vulnerability of the Japanese American community in the early twentieth century and the reliance by Japanese Americans on the good will of white individuals and institutions which the law necessitated, even if the traditional formal prerequisites for a legal trust cannot be established. I also argue that the case suggests a possible resolution of difficult questions regarding race-conscious trusts. Specifically, the case suggests an argument for judicial approval of race-consciousness in a particular circumstance: where a private act favoring a racial minority group is intended to evade specific, historical, legal discrimination against that racial minority group.

alien land laws, japanese american, ywca, trust, race, property, constructive trust

Abstract:
This essay explores the puzzle of persistent racial inequality. It probes the well-worn alternatives of racism and merit by raising a provocative comparison between the intelligent design creationism and racial conspiracy theories. In each case, proponents observe complexity and, with deep personal commitments at stake, reason that some kind of agent must be responsible, either a benevolent God or a malevolent racist. In each case, respondents agree about the definition of religion or racism as grounded in an agent of some kind, but argue that ordinary science - either evolutionary biology or classical economics - proves that no such God or racist exists. The essay then surveys the historic misuses of evolutionary and economic rhetoric with regard to race, noting that such misuses depend on a self-serving appeal to the natural, simple, scientific inevitability of progress. The complex, interconnected historical development of religion, race, and evolutionary and economic theory are examined, and the essay argues that the rhetoric of economics often serves as a secular theology that functions to support Whiteness. The essay suggests that the fundamental questions of racial inequality are ultimately theological questions, and offers some avenues for finding common ground.

critical race theory, network economics, law and economics, whiteness, evolution, religion, race, intelligent design