Upending Status: A Comment on Switching, Inequality, and the Idea of the Reasonable Person
Victoria F. Nourse
Georgetown University Law Center
Ohio State Journal of Criminal Law, Vol. 2, pp.361-375, 2004
Georgetown Public Law Research Paper No. 12-109
This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).
Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate crimes to cultural defenses. This offers opportunities to discuss cultural stereotypes as diverse as the “black-as-criminal” (pp. 138–46), the Mexican-American as “foreigner” (p. 155), and the Asian-American as “model-minority” (pp. 160–65). All of this is presented with the help of some of the most infamous of criminal cases of the past decades — the police shooting of Amadou Diallo (pp. 175–76), Matthew Shepard’s hate-filled death (pp. 74–75), and the made-for-tabloid Jenny Jones case (pp. 67–69).
As these latter elements suggest, this book is clearly intended not only for a scholarly audience but also a popular one. And yet, there is a scholarly aim here and an important one: to force systematic reconsideration of one of the more basic questions of the criminal law — the nature of the “reasonable person.” The author applauds Lee for turning us to this question; too many basic issues in the criminal law remain understudied, particularly from the perspective of one interested in problems of bias. To be sure, scholars will be familiar with some of the more particular arguments found here. Lee embraces Donna Coker’s critique of the highly controversial Berry case (p. 44), and weighs in on the debate between Robert Mison and Joshua Dressler about the proper response to the “gay panic” cases (ch.3, pp. 241–44). Lee borrows Charles Lawrence’s idea of unconscious racism to illuminate police claims of self-defense (pp. 181–83) and, like Jody Armour, Lee interrogates racial stereotypes of aggressiveness and passivity (pp. 183–84). Lee repeats a variety of my examples and judgments on the “hidden normativity” of provocation law (pp. 8, 33–43, 65–66) and reprises Dan Kahan and Martha Nussbaum’s view of evaluative emotion in the criminal law (pp. 230–34). The strength here is not in any particular argument but how they are woven together to show us a pattern that none of these more particular arguments, alone, suggest. Important and unanswered doctrinal questions are raised, and at the same time, these recede before the larger, and more important, question of whether the criminal law invites bias in the guise of the “reasonable person.”
Number of Pages in PDF File: 16
Keywords: switching, inequality, criminal law, upending status, murder, reasonable person, prejudice, cultural stereotypes, bias
JEL Classification: K00, K10, K19, K14Accepted Paper Series
Date posted: August 2, 2012
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