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On Precedent and Progeny: A Response to Professor Gabriel J. Chin's 'Unexplainable on Grounds of Race' - Doubts About Yick Wo

12 Pages Posted: 3 Feb 2010  

Lenese C. Herbert

Albany Law School; Howard University School of Law

Date Written: 2008


Although Yick Wo v. Hopkins is celebrated as a classic equal protection case, establishing the rule against discriminatory prosecutions, Professor Gabriel Chin lamented that it was the first and last case that invalidated a racially-motivated criminal prosecution and did so not based on race, but because the property interest at state was constitutionally protected. In an invited Response to Professor Chin’s criticism, this Article disagrees with his criticism of Yick Wo. Focusing so heavily on Yick Wo and its lack of progeny ignore the true brokers of constitutional protections or minimizing them as an afterthought: the Court (which, strangely, ignored its own precedent, allowing it to remain dormant and waft into desuetude, despite repeated citation of it by lower courts) and, to a lesser extent, criminal prosecutors (whose unchecked discretion allows the freedom not to bring charges). Given the Court’s incubation in an immature country with a well-documented history of eschewing of racial equality, it is little wonder that despite Yick Wo’s availability as a tool that could be deployed in a rejection of segregation on the merits, it was not. Nevertheless, that Yick Wo was decided and continues to be hailed as a seminal decision in equal protection law and lore, it remains difficult to argue convincingly that the cause of justice would have been advanced, had Yick Wo never been decided.

Keywords: Yick Wo, Constitutional Protections

Suggested Citation

Herbert, Lenese C., On Precedent and Progeny: A Response to Professor Gabriel J. Chin's 'Unexplainable on Grounds of Race' - Doubts About Yick Wo (2008). University of Illinois Law Review, Vol. 5, pp. 1415-1426, 2008. Available at SSRN:

Lenese C. Herbert (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

Howard University School of Law ( email )

2900 Van Ness Street, N.W.
Washington, DC 20008
United States

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