Race, Rules, and Disregarded Reality

Abstract

Exploring issues of racial bias and social injustice in the law school classroom is a modern imperative. Yet, important conversations about systemic inequality in the law and legal profession are too often dissociated from core doctrinal courses and woodenly siloed to the periphery of the curriculum. This dissociation creates a paradigm of irrelevancy-by-omission that disregards the realities of the lived experiences of our students and the clients they will ultimately serve. Using Evidence as a launch pad, Professor Deborah Merritt has paved a pathway to incorporate these disregarded realities in doctrinal teaching. This important pathway leads to safe spaces necessary for both faculty and students to explore the historical context of racial subordination in law. Professor Merritt’s disruptive pedagogy upends the casebook method of law school teaching. Her groundbreaking “uncasebook” has prompted deeper thinking about the meaning, purpose, and role of law. This Article serves dual aims. First, it lauds Professor Merritt’s career-long commitment to the goals of equity and inclusion in law teaching and the legal profession. Second, it complements the existing discourse on the role of race and the record of racial disparity in the Rules of Evidence by adding the personal narrative of an outgroup insider. We can do more to promote equity and inclusion in the law school classroom. This Article offers a revealing example of why we must.

Keywords: FRE, Federal Rules of Evidence, evidence, race, racial realities, lived experience, FRE 404, FRE 609, doctrinal curriculum, Deborah Jones Merritt, Marsha Griggs, characterizing race, criminalizing race, FRE

JEL Classification: K00, K10, K14, K30, K39, K40, K41, K42, I24, J15