A Project by HLS Students for Inclusion!


Washington Court of Appeals (1971)

Often Ignored in Class Discussion:

  • Native-American Rights
  • Cultural Difference
  • Critiques of Objectivity as applied to “Reasonable Prudence”
  • Racial Bias Against Native Americans
  • Problem of Liberalism and its focus on the individual 


         This is the point in the course in which the class considers whether negligence should be criminalized.  As usual though the class discussion tends to focus on abstract and elusive notions of objectivity that erase the social context from the reality of the “facts.”  In the Kadish casebook the introductory note immediately starts out asking a good question, “But what circumstances should be considered,” but quickly divulges into a bad set of queries: “Do [these circumstances] include the competence and capabilities of the particular defendant?  Or should the law apply a single invariant standard for all, regardless of a particular defendant’s ability to meet that standard?”[1] The problem with these questions is that they erase the analysis of structural power in favor of simplistic individualism before any analysis can even begin.  Like the case-by-case method, which looks at the law in its isolation rather than in its total, this approach obscures the context in which Native Americans as group have endured a history of rape, murder and genocide at the hands of a white United States government.  In this view, if an objective standard were to be reasonable it would need to take into account the group particularities of the situation, not just refer narrowly to each “particular defendant.”  

         Despite the courts supposed obsession with individualism, they sure are quick to point to the defendant’s racial and class differences:

“The defendant husband, Walter Williams, is a 24-year-old full-blooded Shoshon[e] Indian with a sixth-grade education. His sole occupation is that of a laborer. The defendant Bernice Williams is a 20-year-old part Indian with an 11th grade of education.”

Despite acknowledging their membership in a marginalized class of people at the intersection of race and class, the court refuses to see how it might be reasonable for a low-income Native American family to fear that the U.S. government might take their child away.  The heartbreaking testimony by the husband says it all:

“the way the cheek looked . . . and that stuff on his hair, they would think we were neglecting him and take away from us and not give him back.”[2]

Unfortunately the court has little to no sympathy for the grieving parents.  Although it is very clear that this is a case in which in reasonable could weigh on the side of the defendant, the lower court states very plainly how it feels about the matter: “They had no excuse that the law will recognize.”[3]

Critical Questions

         Why is it that the Court chooses to ignore group differences of power and yet still acknowledges the individual differences of the defendants (e.g. native identity and lack of education)?  As a law student, do you think you are being trained to notice and challenge these hierarchical differences?  What if their lawyer presented the “group marginalization” argument to the court?  Would there be a substantive change in the result here?  What about a change in the rhetorical form of the opinion?  Is there value in demanding members of the status quo explain themselves?

[1] Id. at 472.

[2] Id. at 473.

[3] Id.