University of Denver Sturm College of Law
February 21, 2012
126 Harvard Law Review (2013 Forthcoming)
Racial capitalism — the process of deriving social and economic value from racial identity — is a longstanding, common, and deeply problematic practice. This Article is the first to identify racial capitalism as a systemic phenomenon and to undertake a close examination of its causes and consequences.
The Article focuses on instances of racial capitalism in which white individuals and predominantly white institutions use nonwhite people to acquire social and economic value. Affirmative action doctrine and policies provide much of the impetus for this form of racial capitalism. These doctrines and policies have fueled an intense legal and social preoccupation with the notion of diversity, which encourages white individuals and predominantly white institutions to engage in racial capitalism by deriving value from nonwhite racial identity. An examination of the consequences of racial capitalism is particularly timely given the Supreme Court’s pending decision in Fisher v. University of Texas, a challenge to the affirmative action policy at the University of Texas.
Racial capitalism has serious negative consequences both for individuals and for society as a whole. The process of racial capitalism relies upon and reinforces commodification of racial identity, which degrades that identity by reducing it to another thing to be bought and sold. Commodification can also foster racial resentment by causing nonwhite people to feel used or exploited by white people. And the superficial value assigned to nonwhiteness within a system of racial capitalism displaces measures that would lead to meaningful social reform.
In an ideal society, racial capitalism would not occur. Given the imperfections of our current society, however, this Article instead proposes a pragmatic approach to dismantling racial capitalism, one that recognizes that progress must occur incrementally. Under such an approach, we would discourage racial capitalism. But if racial capitalism did occur, we would identify it explicitly, call attention to its harms, and impose penalties on those who engage in racial capitalism. Moreover, we should ensure that any transaction involving racial value is structured so as to discourage future racial capitalism. I briefly survey some of the various legal mechanisms that can be deployed to discourage racial capitalism through limited commodification. Ultimately, this approach will allow progress toward a society in which we successfully recognize and respect racial identity without engaging in racial capitalism.
This article is currently undergoing editing and revision. Please do not quote or cite without permission.
Number of Pages in PDF File: 72
Keywords: equal protection, affirmative action, diversity, race, racism, capital, capitalism, commodification, antidiscriminationAccepted Paper Series
Date posted: February 24, 2012 ; Last revised: April 15, 2013
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