Gregory S. Parks
and Shayne E. Jones
Abstracted from: Gregory S. Parks and Shayne E. Jones, "Nigger": a Critical Race Realist Analysis of
the N-word Within Hate Crimes Law, 98 Journal of Criminal Law and Criminology 1305-1347, 1306-1310, 1344-1345 (2008) (290 footnotes omitted)
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and
may vary greatly in color and content according to the circumstances and the time in
which it is used. -- Oliver Wendell Holmes
Although the slang epithet "nigger" may once have been in common usage . . . [it] has
become particularly abusive and insulting . . . as it pertains to the American Negro. -- Louis H. Burke
[C]rimes motivated by bigotry usually arise not out of the pathological rantings and
ravings of a few deviant types in organized hate groups, but out of the very mainstream of
society. -- Jack Levin and Jack McDevitt
Critical Race Realism is neither a novel term nor a novel concept. As early as 1992 and as
recently as 2005, legal scholars Derrick Bell and Emily Houh, respectively, propounded this idea.
According to Bell, "Black people need reform of our civil rights strategies as badly as those in
the law needed a new way to consider American jurisprudence prior to the advent of the Legal
Realists . . . . Racial Realism . . . is a legal and social mechanism on which [B]lacks can rely to
have their voice and outrage heard." For Houh, "critical race realism encompasses not only the
goals and methodologies of the broader critical race . . . projects, but also some of the shared
goals and methodologies of legal realism . . . ."
From our vantage point, Critical Race Realism is an amalgamation of Critical Race Theory and
Legal Realism. As Critical Race Theory is the jurisprudential grandchild of Legal Realism, both
share similarities, but are yet quite different. Critical Race Theory was founded as "a race-based,
systematic critique of legal reasoning and legal institutions." Critical Race Theory was born out
of the Critical Legal Studies movement. Not only did it take part of its name from the adherents
of Critical Legal Studies (crits), it took part of its ideology from the crits as well. For one, critical
race theorists are "critical," quite like crits, in that they engage in a version of "trashing"--a
hallmark of the crits. In this approach, they (1) take legal arguments seriously in their own terms,
(2) discover that the arguments are "foolish," and (3) look for some order in the "internally
contradictory, incoherent chaos [they have] exposed." Critical Race Theorists do not endorse
rights-trashing, like the crits. Nonetheless, both sets of scholars engage in a "full frontal assault"
on modern jurisprudence. Earlier, the realists employed a similar technique called debunking.
This entailed subjecting questionable judicial opinions to logical analysis in order to expose their
inconsistencies, unsubstantiated premises, and tendency to "pass off contingent judgments as
inexorable." Debunking flowed from two methods of attack: rule and fact skepticism. Rule
skeptics argued that case decisions do not necessarily flow from general legal propositions--that
logic did not govern judicial thought processes. Other features were argued to have factored into
the equation, such as policy considerations. Fact skeptics either argued that the facts found by the
judge or jury are inconsistent with the actual facts or that the reactions of judges and juries to
facts are unpredictable.
Despite these similarities, Critical Race Theorists are arguably distinguished from the realists in
that the latter, and not the former, made the synthesis of law and social science a hallmark of
their agenda. The empirical exploits of Realists such as Charles E. Clark and William O. Douglas
at Yale, Underhill Moore at Yale, and Walter Wheeler Cook and colleagues at Johns Hopkins are
well-documented. Many of the Critical Race Theory founders were formerly active in the law
and society movement, which had its roots with the realists. The crits, however, ultimately
disagreed with their law and society colleagues on key issues. One issue that cleaved the crits
from the law and society movement was the debate about the utility of empirical social science.
In a 1977 article in the Law and Society Review, crit theorist David Trubek assailed empirical
social science. First, Trubek suggested that empirical research legitimates the status quo in that it
implies that facts researched were objectively "'there"' and "part of the permanent 'reality' of
American culture." Second, he argued that a scholar could not separate ideology from
methodology in any type of research, including empirical research. Ultimately, according to G.
Edward White, Trubek argued that "to be politically reformist and methodologically neutral was
a contradiction in terms."
There is a current effort afoot, however, which seeks to reconcile Critical Race Theory with other
elements of its realist roots. As named by Bell and Houh, this movement is called Critical Race
Realism. As articulated by the authors, Critical Race Realism situates itself within the growing
contemporary attempts--such as empirical legal studies, the New Legal Realism Project, and
Behavioral Realism--to integrate law and social science. Furthermore, its goal is to more
systematically "enable and to compel law-making . . . to take more account . . . of the social facts
upon which law must proceed and to which law must be applied." This Article applies Critical
Race Realist methodology in an effort to analyze how the law should construe the N-word in
potential hate crime cases. It does so by systematically assessing the usage of that word on the
part of Whites who might justify their usage by arguing that they are immersed in certain
elements of Black popular culture. In addition to this analytic technique, the Article imports
empirical research on implicit social cognition into our understanding of hate crimes law. In so
doing, this Article adds to the scant legal scholarship on the N-word.
Part II highlights a particular case in which a White person, who was allegedly immersed in
Black culture, used the N-word during his assault of a Black man. Part III provides a general
overview of U.S. hate crimes law and how racial epithets are traditionally viewed within this area
of law. Part IV provides a brief historical and contemporary analysis of the N-word and how it
has been and is understood. Part V makes two arguments in support of why, when the N-word is
uttered in the context of a non-Black person committing a crime against a Black person, the
crime should be construed as a hate crime. The first is that despite the proliferation of the N-word
throughout Black popular culture, even Whites immersed in that culture generally do not use that
word, especially when amongst Blacks they do not know very well. The second is that a
remarkably large percentage of Whites harbor implicit and negative racial attitudes against
Blacks. As such, a White person's utterance of the N-word while committing an act of violence
or intimidation against a Black person may be seen as a leakage of these implicit racial biases.
Part VI addresses why, despite Blacks' high rate of implicit anti-Black bias and more frequent use
of the N-Word than Whites, the arguments we put forth about inter-racial hate crimes do not
apply intra-racially among Blacks.
. . .
The N-word has long been a controversial word, symbolic of White racial animus and hostility
towards Blacks. A contemporary examination of the word, however, suggests a varied and
complex understanding of it. Among Blacks, the word is not necessarily pejorative and may, at
times, be either benign or a term of endearment. Noted Harvard Law School professor Randall
Kennedy argued that, given this fact, Whites' usage of the word does not necessarily suggest
racial animus within hate crimes jurisprudence. The error in this reasoning is twofold. A
systematic analysis of Whites who are immersed in Black popular culture indicates that they do
not routinely and publicly use the N-word. Furthermore, current research on implicit social
cognition indicates that a majority of Whites harbor implicit anti-Black attitudes, and these
attitudes are revealed within the context of hate crimes. Whites' usage of the N-word while
committing inter-racial crimes is an example of the leakage of implicit biases against Blacks.
The distinction between a "regular" crime and a hate crime is the motivation of the perpetrator to
select a victim based on their characteristics, such as race. Despite its key role in hate crimes,
motivation can be difficult to prove. Moreover, because of the often implicit nature of anti-Black
bias, one's motivation is not immediately apparent. Therefore, we must look to one's actions to
see if there is evidence of racial animus. As we have argued throughout this Article, implicit
anti-Black bias exists, and the use of the N-word among Whites is evidence of such bias. Thus, in
the Minucci case, and contrary to the testimony offered in his defense, his use of the N-word
while beating Glenn Moore provides evidence that Minucci's motivation was at least in part
racially motivated. When the N-word is used by a White perpetrator in the context of committing
a crime against a Black victim, this can, and should, be used as evidence that the crime was
This Article's findings fit within a growing corpus of legal scholarship that imports empirical,
social, and cognitive psychological research about implicit racial bias into the law. This research
demonstrates that models of "racism" predicated on overt and explicit indicia of racial animus are
outdated. Many Whites either lie about, or lack adequate access to, their actual racial attitudes.
Even when they are truly immersed in Black culture, such immersion, ironically, may amplify
their subconscious biases, including anti-Black biases. Furthermore, despite the fact that liberals,
who may be deemed to embrace Black culture more so than conservatives, have nearly twice the
implicit pro-Black attitudes that conservatives do, the distinction between the two on levels of
implicit anti-Black bias is negligible, with both above 60%. Thus, the work of social scientists
and legal scholars in this area demonstrates that a contemporary and nuanced understanding of
race bias has considerable implications for the law. And it should be such that gone are the days
when a defendant's lack of explicit racial animus, or a court's ability to discern such, should
dictate the outcome of a trial. Whether courts are grappling with Batson challenges, employment
discrimination, affirmative action policies, or hate crimes, wherever race is implicated, research
on implicit attitudes demonstrates that racial bias still exists and provides a new--and more
fitting--mode of analysis.