Rethinking Colorblind State Action: A Thought Experiment on Racial Preferences

32 Pages Posted: 20 Aug 2010

See all articles by Michele Goodwin

Michele Goodwin

University of California, Irvine School of Law

Nevin Gewertz

University of Chicago - Law School

Date Written: August 18, 2010


The authors consider the future impact of the United States Supreme Court decision, Parents Involved to analyze its potential import among other legal regimes. Goodwin and Gewertz consider decoupling race in government-sponsored programs by examining a pressing healthcare issue for all Americans, but especially for Blacks: organ transplantation. Organ demand has increased in the past twenty years while organ supply has remained relatively constant. The problem is acute among Blacks, who wait for organs longer than other groups, and, while waiting, suffer higher death rates. Some argue that if more Blacks participated as organ donors, their involvement would alleviate the organ shortage among them. But the authors’ research proves otherwise, at least in the current donation and allocation system, which does not allow donors to select recipients by race. The authors conduct a thought experiment to examine the utility of allowing groups to select among their affinity group (or any group they choose) as the recipients of their organs. Goodwin and Gewertz hypothesize that by reducing organ demand among Blacks (by increasing the number of Blacks donating directly to others in their communities), all transplant-waitlist patients will benefit, for organs that may have randomly been assigned to Blacks could be provided to others. Grounded in the new-legal-realism approach to public-policy questions, the authors advocate piercing the veil of ignorance behind which less socially responsive policy is formed and argue for regulations that reflect the concerns and sensitivities of those individuals whom they affect. The authors forecast and respond to the primary legal objections that a race-preference proposal might engender, most notably that such a system violates the altruistic mandate of the National Organ Transplant Act (NOTA) or that the use of racial criteria is unconstitutional.

Keywords: law, society, economics, medicine, health care, race culture, politics

Suggested Citation

Goodwin, Michele and Gewertz, Nevin, Rethinking Colorblind State Action: A Thought Experiment on Racial Preferences (August 18, 2010). Law and Contemporary Problems, Vol. 72, 2009; Minnesota Legal Studies Research Paper No. 10-39. Available at SSRN: or

Michele Goodwin (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Nevin Gewertz

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
917-716-1128 (Phone)

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