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The Group Dangers of Race-Based Conspiracies

Catherine E. Smith

University of Denver Sturm College of Law

Rutgers Law Review, Forthcoming
University of Denver Sturm College of Law Legal Studies Research Paper Series No. 07-14

Most lawyers, judges, and members of the legal academy are well versed in the underlying rationales for criminal conspiracy law -- that punishing a conspiracy as a separate crime protect[s] society from the dangers of concerted criminal activity and the greater threat to social order. While this group dangers rationale thrives in criminal conspiracy law, its absence from the interpretation of 42 U.S.C. § 1985(3) has led a majority of federal courts to apply a legal fiction from anti-trust law, the intracorporate conspiracy doctrine, that shields racist conspirators from § 1985(3) liability.

This article argues that federal courts should recognize the special dangers of race-based conspiracies, reject the intracorporate conspiracy doctrine as they have done in criminal law, and hold racist corporate officers liable for racially driven intracorporate conspiracies under § 1985(3).

Drafted during the Reconstruction era to counter white resistance to blacks' civil rights, § 2 of the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1985(3), prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the laws. The 1871 Congress enacted the statute to combat the special dangers of race-based collective action, based largely on a common sense that conspiracies present unique threats. Today, common sense no longer serves as the sole basis to treat collective action differently than individual action.

This article uses current social psychology literature to demonstrate that race-based conspiracies pose special dangers to society. Driven by in-group favoritism -- not just out-group derision -- individuals act based on racial distinctions that lead to three group dynamics, identified in this article for the first time: racial loyalty, racial persuasion and racial conformity. These group dynamics increase the chances that the object of the conspiracy will be achieved, and reduce the chances that an individual conspirator will withdraw from the conspiracy.

This article's findings mandate a re-conceptualization of contemporary race-based civil conspiracy law so that corporate actors are held accountable for harnessing the power of collective action to engage in racial discrimination; the rejection of the intracorporate conspiracy doctrine's application to § 1985(3) claims is a critical reform.

Number of Pages in PDF File: 43

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Date posted: February 7, 2007 ; Last revised: March 22, 2012

Suggested Citation

Smith, Catherine E., The Group Dangers of Race-Based Conspiracies. Rutgers Law Review, Forthcoming; University of Denver Sturm College of Law Legal Studies Research Paper Series No. 07-14. Available at SSRN: https://ssrn.com/abstract=961869

Contact Information

Catherine E. Smith (Contact Author)
University of Denver Sturm College of Law ( email )
2255 E. Evans Avenue
Denver, CO 80208
United States

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