A Project by HLS Students for Inclusion!


A. Johnson, JD '16

As you read these critical case briefs for Criminal Law, you will notice several themes emerge: objectivity, veiled neutrality and surface level treatments of race and gender. 


A.   Objective Epistemology    

“What looks the same if you are generalizing from your own experience may be construed differently by others: sameness as a uniform standard assumes that one can generalize from the perspective or intent of the person setting that standard.”   -- Lani Guinier – HLS Professor[1]


In most of the cases you encounter 1L year, you will notice a theme of objectivity running through the opinions.  But a judge, usually a white man, narrates the opinion even if he cannot be seen; there’s always a story behind the case.  This guide notes many of the instances in which white male “reasonableness” is presented as neutral but cloaked in perspective.


B.   Veiled Neutrality

“The jury decided that no man is reasonable when he’s surrounded by four thugs.”   – Alan Dershowitz – HLS Professor[2]


Another common thread is the idea that the law is neutral.  Despite the law’s claim to neutrality, many of the cases presented often show some explicit or implicit hostility toward oppressed groups.  Even when a judge appears to be neutral, there is often some social context in the background animating the opinions.


C.   Surface Level Treatments of Race and Gender

If you are going to discuss race or gender at all during the first-year curriculum, it will most likely be in a Criminal Law course.  But, do not mistake comment for inclusion.  Unfortunately, by and large, professors who discuss race and gender in law school will often do so in a haphazard or marginal manner, which does not fundamentally address concerns about racial justice or gender equality.  If you thought you were going to have a substantive discussion about police reform and ending police brutality, it will not happen unless you bring it to the classroom.  I would encourage students to do just that.

[1] Lani Guinier, Becoming Gentlemen, 11 (1997).

[2] Joseph Berger, Analysis; GOETZ Case: Commentary On Nature Of Urban Life, New York Times, Jun. 18, 1987 http://www.nytimes.com/1987/06/18/nyregion/analysis-goetz-case-commentary-on-nature-of-urban-life.html.