Article 1 – Race-ing to Justice: Gendered Justice Paves the Way for Adopting the Reasonable Black Man Standard into Fourth Amendment Jurisprudence – By Yasmin Paula Carlos

August 28th, 2015 Leave a comment Go to comments

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RACE-ING TO JUSTICE: GENDERED JUSTICE PAVES THE WAY FOR ADOPTING THE REASONABLE BLACK MAN STANDARD INTO FOURTH AMENDMENT JURISPRUDENCE

 

Yasmin Paula Carlos*

 

 

Abstract

 

The Supreme Court’s race-neutral analysis of the free-to-leave test, which asks whether a reasonable person would have felt free to leave or otherwise terminate a police encounter, is incomplete because being Black is a glaring part of a Black person’s “circumstances,” especially with regard to police encounters.  The idea of making the legal system responsive to the unique experiences of a particular group by adopting a modified standard for what is “reasonable” under the circumstances is not novel.  Feminists have long advocated for the adoption of the reasonable woman standard into sexual harassment law when a woman is the victim and self-defense law when a woman is the defendant.  Similarly, scholars like Professor Devon W. Carbado, Professor Dwight L. Greene, and Professor Tracey Maclin have argued for integrating race into the Fourth Amendment’s seizure analysis.  Carbado and Maclin have asserted that the Supreme Court must adopt a “reasonable Black man” standard into the free-to-leave doctrine when assessing whether a Black man felt free to leave a police encounter.  Only adopting this standard will address the disconnection between Supreme Court jurisprudence and the reality of what a Black person—especially a Black man—experiences when dealing with the police.

This paper advances Carbado’s and Maclin’s arguments by analogizing the need for a reasonable Black man standard in free-to-leave jurisprudence to some reasons feminists have used to justify the need for a reasonable woman standard in sexual harassment and self-defense cases.  As this article shows, several of the reasons feminists have used to justify the adoption of the reasonable woman standard in sexual harassment and self-defense cases can also be applied to the argument for applying a reasonable Black man standard to the Fourth Amendment’s free-to-leave test.

First, the judiciary suffers from pluralistic ignorance because it is composed of mostly White males.  In the same way that male judges have a hard time imagining what a reasonable woman would do under many circumstances, White judges have a hard time imagining what a reasonable Black man would believe he is free to do during a police encounter.  Second, similar to the difference between the perspectives of women and men regarding sexual harassment and self-defense, a distinct difference exists between the perspectives of Black men and White men with regard to police encounters.  This difference is due to this country’s long history of racial policing.  Third, similar to the unsafe feeling many battered women have about leaving an abusive relationship due to our society’s gender socialization, many Black men do not feel safe leaving a police encounter because of their racial socialization.  Finally, much like the reasonable woman standard, the reasonable Black man standard is not a new standard, but a clarification of the current standard.  The reasonable Black man standard is a measure of reasonableness that forces judges to consider being a Black man as a crucial part of the totality of the circumstances when analyzing the reasonableness of Black men during police encounters.  Likewise, being a woman is part of the totality of circumstances when analyzing the reasonableness of women who are sexually harassed or assert self-defense to a murder charge.

The Fourth Amendment’s free-to-leave doctrine has long troubled lawyers and scholars in the criminal justice field. With this article, the inequities will also become apparent to those readers less familiar with the Supreme Court’s search and seizure decisions.

Introduction

The Supreme Court’s race-neutral analysis of the free-to-leave test, which asks what a reasonable person under the circumstances would have done, is incomplete because an individual’s race is not considered.  Race is a glaring part of a person’s “circumstances,” especially for a Black person[1] during a police encounter.[2] The Court’s insistence on remaining silent about the impact of race on the totality of the circumstances during police encounters is nonsensical because “[m]ost, if not all, [B]lack people—especially [B]lack men—are apprehensive about police encounters.”[3] Apprehension results because most of them “grow up with racial stories of police abuse.”[4] So real is this racial dynamic between the police and Black people, that Black comedian Dave Chappelle satirized it in his 2000 performance at Lincoln Theater in Washington, D.C.:

I’m not saying I don’t like police, I’m not saying that. I’m saying I’m just scared of them.  Nothing wrong with that.  Sometimes, [Black people] wanna call them too.  Somebody broke into my house once; that was a good time to call them.  But I didn’t … mmm-mmm <Shakes head>.  House is too nice.  And it ain’t a real nice house, but they’d never believe I lived in it.  They be like, “<Gasp> He’s still here!” <Uses microphone to imitate a cop hitting the black homeowner with a baton>.  “Oh my god.  Open and shut case, Johnson.  I saw this once before when I was a rookie.  Apparently this nigger broke in and hung up pictures of his family everywhere.  Well, let’s sprinkle some crack on him and get out of here.”[5]

Chappelle’s seemingly exaggerated depiction of Black people’s interaction with the police in Dave Chappelle: Killin’ Them Softly is humorous because the situation he described is, for many Black people, not an exaggeration at all.[6] The depiction is funny not only because of Chappelle’s witty lines and spot-on impersonations, but for the tacit absurdity of the reality described in the skit.  Despite the serious consequences of race-based policing, Black people find humor in this skit because many can relate to it.  Sometimes humor is needed to make more palatable the articulation of this ludicrous reality when the Supreme Court refuses to even engage in the matter.  Chappelle accurately described critical race theorist Devon Carbado’s sentiment that the Black collective consciousness of the history of race-based policing has made Black people inherently apprehensive about police encounters.[7]

The issue of racial incongruence is manifested in the Fourth Amendment’s free-to-leave test.  The Court has ruled that a person’s Fourth Amendment right against an unreasonable seizure has not been violated if a reasonable person under the circumstances would have felt “free to decline the officers’ requests or otherwise terminate the encounter.”[8] For example, where a “reasonable person” could have ended the encounter—perhaps by leaving the scene,—but did not, the Court has ruled that no seizure occurred and thus, the Fourth Amendment was not implicated.[9] The Court has described such encounters as “cooperative” and ruled that no Fourth Amendment rights are violated in such situations.[10] By ignoring race, the Court has sustained the way in which Fourth Amendment law has systematically protected White people, while not extending the same protection to their Black counterparts.

The idea of making the legal system responsive to the unique experiences of ­a particular group of people by adopting a modified standard for “reasonableness” under the circumstances is not novel.  In fact, Professor Carbado’s article, (E)racing the Fourth Amendment, makes a good case for integrating race into the free-to-leave test.[11] However, this paper asserts that his case could be made even stronger by analogizing the need for a reasonable Black man standard in free-to-leave jurisprudence to some reasons used by feminists to justify the need for a reasonable woman standard in sexual harassment and self-defense cases.  Feminists’ rebuked the “reasonable person” standard for continuing to measure what a reasonable man would have done under the circumstances.[12] In response, some courts have adopted the “reasonable woman” standard to account for feminist concerns that the “reasonable man” standard does not consider how men and women are different.[13] Thus, much like the “reasonable woman” standard adopted by some jurisdictions in sexual harassment and self-defense cases, the Court must adopt a “reasonable Black man” standard in free-to-leave cases when assessing whether a Black man felt free to leave during a police encounter.  A “reasonable Black man” standard would address the disconnection between Supreme Court jurisprudence and the reality of what a Black person—especially a Black man—experiences when dealing with the police.

Part two of this paper outlines some of the circumstances that have prompted courts to adopt a reasonable woman standard and the justifications advanced to defend the modification of the traditional reasonable person standard.  Part three discusses how the Supreme Court’s “colorblind” Fourth Amendment jurisprudence is not race neutral.  Consequently, this “colorblind” jurisprudence renders the current free-to-leave test unfair to many Black people during police encounters.  Part four argues that the reasons advanced to justify using a reasonable woman standard in certain circumstances should also be advanced to justify using a reasonable Black man standard in the application of the free-to-leave test for a Fourth Amendment seizure analysis.  Part five advances a normative argument: race, unlike gender, is a more injurious social construct because its total arbitrariness sends a message of animus.  If courts adopt a “reasonable Black man” standard in Fourth Amendment jurisprudence, some of the unjustifiable harms this country has imposed on Black people will be mitigated.  This paper concludes by asserting that justice will not be served until we commit to telling the whole truth about race realities in the United States.  One of the first steps is to force the courts to account for the reality of Black people’s experiences with the police, and to recognize how that reality affects the free-to-leave test.

I.  Gendered Justice:  Male-Biased Reasonable Person Standard

Some feminist legal scholars[14] have argued for the adoption of a reasonable woman standard in cases where gender[15] matters because the purportedly neutral reasonable person standard operates as a reasonable man standard.[16] As a result, some courts have adopted the reasonable woman standard in sexual harassment,[17] self-defense,[18] and battered women who kill[19] cases.  Feminists have insisted that the reasonable person standard does not account for the differences between how reasonable men and reasonable women would react or conduct themselves under similar circumstances.[20] These courts’ responses are acknowledgments that often the “objective” reasonable person standard only measures what a reasonable man would do.

A. Sexual Harassment in the Workplace and the Reasonable Woman Standard

 

The reasonable woman standard appears in cases litigating sexual harassment.  Title VII of the Civil Rights Act of 1964[21] makes sexual harassment actionable as a form of sex discrimination.[22] To bring forth a claim of Title VII hostile environment or sexual harassment in the workplace, one of the elements a plaintiff must allege is that the harassment was so severe and pervasive that it altered the conditions of employment and created an abusive working environment.  According to the seminal Supreme Court case on sexual harassment, Harris v. Forklift Systems, Inc.,[23] this element requires both a subjective and an objective component.[24] The objective prong requires an analysis of whether a reasonable person would find the conduct severe or pervasive enough to create an abusive environment.[25] Feminists protested this reasonable (un-gendered) person standard because, more often than not, this standard measured offensiveness using a male-centered barometer.[26]

Feminist scholars have extensively criticized the un-gendered reasonable person standard in cases of sexual harassment in the workplace.[27] One scholar, Kathryn Abrams, reasoned that gendered perspectives matter in the area of sexual harassment “because men still exercise control over most workplaces” and “their views of sexual behavior in the workplace remain the norm.”[28] Thus, men define what is reasonable.  In addition, most judges are men.[29] Consequently, their decisions are affected by their own gendered socialization, allowing them to accept the male-defined standard of appropriate conduct in the workplace.[30] Finally, feminists have asserted that men are particularly ill equipped to empathize with a woman’s perspective as a victim of sexual harassment because men are generally the perpetrators of sexual harassment.[31]

In the early 1990s, compelled by such feminist reasoning, some courts started adopting the reasonable woman standard into sexual harassment jurisprudence to properly consider the experience and perspective of reasonable women when determining the types of behavior constituting sexual harassment.[32]

B. Self-Defense and the Reasonable Woman Standard

 

Feminists have identified the criminal self-defense doctrine as another instance in which the traditional reasonable person standard is problematic because it fails to account for the unique perspective of a reasonable woman.[33] Women tend to be unjustifiably less successful than men when asserting self-defense as an affirmative defense.  These low success rates stem from the fact that the traditional reasonable person of the self-defense doctrine is “really the [r]easonable [m]an dressed up in gender-neutral clothing.”[34]

Even in murder case, self-defense is a complete defense when a reasonable man believes he is in imminent danger of a harm “he did not create and from which he cannot reasonably retreat.”[35] One of the most important elements of traditional self-defense is the “reasonableness” standard, an objective standard from a reasonable man’s perception of imminent danger.[36] Although courts now use the more politically correct reasonable “person” term, a defendant’s behavior is clearly compared to the standard of a reasonable man.[37] If, under the circumstances, a reasonable man would have believed that he was in imminent danger and committed murder to protect himself, then the defendant’s behavior was reasonable and is considered self-defense.[38] As a corollary, if a reasonable man would not have perceived the danger to be imminent, then the defendant’s violent conduct was unreasonable and is not considered self-defense.

In response to the injustice perpetuated by the reasonableness standard’s silencing of the female perspective in the “objective” prong of the analysis, some courts started to embrace gender specificity when the issue was self-defense and the defendant was a woman.  For example, in State v. Wanrow,[39] the Washington Supreme Court held that the trial court erred by giving the jury a self-defense instruction using the male pronoun exclusively.[40] Criticizing the reasonable person jury instruction, the Wanrow court said the jury instruction “not only establishes an objective standard, but through the persistent use of the masculine gender leaves the jury with the impression the objective standard to be applied is that applicable to an altercation between two men.”[41] Further, in justifying the use of what amounted to a reasonable woman standard, the Wanrow court said:  “The [female defendant] was entitled to have the jury consider her actions in the light of her own perception of the situation, including those perceptions which were the product of our nation’s ‘long and unfortunate history of sex discrimination.’”[42] Thus, the Wanrow court determined that the case should be evaluated using the reasonable woman standard and the woman’s actions should be evaluated with consideration of her gendered perception of the situation.

C. The Reasonable Battered Woman Standard

Feminists have argued that in domestic violence self-defense cases, when a battered woman is the defendant, the reasonable perception of imminence ought to be measured by a “reasonable battered woman” standard instead of a “reasonable person” or a “reasonable woman” standard.[43] The abuse inflicted on battered women has a significant effect on the expected behavior of those women in situations of violence.  Consequently, some courts have recognized that this modified standard will do these battered women justice, as opposed to the objective reasonable person standard or the objective reasonable woman standard.[44]

In cases of battered women who kill their abusers, some courts have adopted a “reasonable battered woman” standard to account for the unique perspective of battered women.  Feminists have said that the measure of what a “reasonable man” would do is particularly problematic in battered woman self-defense cases because of the power dynamics inherent in domestic violence.[45] A typical woman is usually unable to physically defend herself against a man during an attack.  Consequently, a battered woman who kills her abuser in “self-defense” will sometimes do so in non-confrontational circumstances, when the abuser is unable to overpower her.[46] With this dynamic in mind, a battered woman is likely to strike back while the abuser is asleep.[47] Under a reasonable man standard, the threat in this circumstance is probably not imminent.  Indeed, under the traditional self-defense theory, the battered woman’s conduct would be considered unreasonable.[48] Thus, a battered woman’s self-defense claim has traditionally, and unfairly,[49] been defeated.

Some state courts have recognized the need for and use of the “reasonable battered woman” standard in domestic violence self-defense cases.[50] The rationale is that abuse towards women has long been ignored due to the prevalence of the reasonable person standard.  This standard has almost categorically been a reasonable man standard, which has created a lack of justice for women within the domestic violence category of the law.

II.   Race-d (In)justice: Race-less Reasonable Person in Fourth Amendment Jurisprudence Does Not Account for the Unique Experience of

Black People During Interactions with Police

The United States Supreme Court applies the free-to-leave test to determine whether a seizure has occurred during a police interaction with a citizen.[51] Under this test, there is no seizure and no Fourth Amendment implication if, under the circumstances, a reasonable person would have believed that he or she was free to leave or otherwise terminate the police encounter.[52] “[T]he ‘touchstone of the Fourth Amendment is reasonableness,’”[53] and under the free-to-leave test, the Court measures reasonableness by objective terms.[54] The Court asks what a reasonable person would have believed under the totality of the circumstances.[55] This test’s outcome can be crucial.  If the Court determines that a reasonable person in the defendant’s circumstances would have felt free to leave or otherwise terminate the encounter, but did not do so, the ensuing seizure is consensual and the Fourth Amendment is not implicated.[56] As a result, the exclusionary rule is not triggered and evidence found during the search is admissible against the defendant.[57]

Carbado identifies the free-to-leave test as a doctrine “within which the construction of race exploits and exacerbates existing racial inequalities”[58] because the Court’s espousal of a colorblind standard is tantamount to a reasonable (White) person standard.  Such a standard fails to account for the unique experience and perspective of Black people and operates to nullify their “consent” in police encounters.  Thus, the free-to-leave test is detrimental to Black men whose racial consciousness often makes them believe that terminating a police encounter is not an available option.[59]

A. The History that Race-s Police Encounters for Black People

 

 Comedian Dave Chappelle is speaking as a Black man when he says: “I’m not saying I don’t like police, I’m not saying that.  I’m saying I’m just scared of them.”[60] Many Black men share this fear, which is not unfounded.[61] Police, especially White police, have a long history of violently oppressing Black males.  For example, the police were complicit in the violent enforcement of the fugitive slave laws[62] and Jim Crow laws.[63] The police were also among the agents of public lynching, such as “those of Jesse Washington in Waco, Texas and Emmett Till in Mississippi.”[64] Police were also linked to the Ku Klux Klan.[65] Moreover, police perpetrated the violence that resulted in the death or severe injury in the cases of “Malice Green, Michael Stewart, businessman Arthur Miller, . . . [the] videotaped police savagery of Rodney King[, the] [p]olice shootings [of] fifteen year old Jose Perez, the Houston police killing of Joe Torres, and the police incidents that triggered a series of Miami riots.”[66] Oftentimes, police frame Black men for unsolved crimes and target innocent men, for example baseball Hall of Famer Joe Morgan, based on racial profiling.[67]

Considering this history, it is not surprising that one’s blackness plays a significant role in the script that unfolds when a Black man faces the police.  As a survival tactic, many Black men are socialized to be acquiescent to the police.  This socialization is relevant to the question of whether a reasonable Black man would have felt free to terminate a police encounter.  Even worse for Black men, high socio-economic status does not appear to mitigate the threat of police abuse.  Accordingly, Black people of high status are also socialized to do as instructed by the police.  For example, Christopher Darden, one of the lead prosecutors in the O.J. Simpson murder trial, said that his survival strategies when faced with a police encounter include: not getting into verbal arguments with the cop; and complying with whatever the officer is telling him to do, even if that means getting on the ground.[68] Additionally, Professor Jerome McCristal Culp, in writing about the brutal beating of Rodney King, talked about “the rules of engagement of [B]lack malehood, [sic]” which includes not making any sudden movements, lest one become a victim of police violence.[69]

Social beings act out roles according to their perception of the expectations of others.[70] Thus, a person’s color often creates impossible “choices” for Black people when they encounter the police[71] because the history of racial policing is rooted deeply in the minds of Black men and survival requires Black men to behave a certain way during police interaction.  The impossibility of the “choice” is manifested in the fact that many Black people do not believe the choice of refusing to cooperate during police encounters exists.  Black people hold this belief despite the existence of their Fourth Amendment right to terminate a police-initiated encounter devoid of a rational basis for suspicion.  What courts consider “consensual” encounters escaping Fourth Amendment protection are not actually consensual if Black men subject to these encounters never feel free to leave without facing grave consequences.  No justice exists in the Fourth Amendment free-to-leave doctrine if the reasonableness test does not account for the reality that “[i]n virtually every encounter between a [B]lack male and [W]hite male police, there is [the] palpable tension: Are these [W]hite men going to start something?”[72]

B. The Notion of Colorblindness is a Mirage Considering Black People’s Socialization

 

The criticism of the Court’s colorblind jurisprudence is not new.  Almost two decades ago, Professor Greene asserted that the “colorless” reasonable person does “not reflect the realities of color” and “deliver[s] a false justice.”[73] He argued that doctrinal colorlessness is “[p]remised on a mirage of neutrality” that ought to be addressed by “necessary contextualization,” which should include Blacks as reasonable persons, if justice is to be served.[74] Almost a decade after Professor Greene’s article, Carbado echoed this need for necessary contextualization.[75] Carbado suggested a “totality of the circumstances” analysis, which unlike the Bostick test, would consider the race of the suspect and officer in determining whether the suspect felt free to leave the police encounter.[76]

Both Greene and Carbado assert that when the Court is blind to the race factor in seizure cases, the Court is not being racially neutral because inherent bias exists when White privilege permits racial ignorance to the systematic detriment of Black people.[77] Both also assert that using a reasonable race-less person standard does not reflect the reality of Black people when they encounter the police.[78] However, while Greene generally identifies the “pluralistic ignorance”[79] of judges as the reason for their inability to integrate the Black perspective into their analysis, Carbado’s charge appears to be slightly harsher.[80] Carbado particularly targets the Supreme Court Justices and alleges that in choosing the doctrine of “colorblindness,” the Justices are choosing to construe race in a way that disadvantages Black people because colorlessness does not reflect reality.[81]

Carbado asserts that when the Court chooses to ignore race, the Court is construing race in a particular way—as if race does not matter.[82] The Court’s approach is problematic precisely because “there is no reasonable person who is racially unsituated [sic].”[83] In reality, the racial game pits Black men against the police and includes, among other things, the rule that Black citizens are supposed to do what police officers ask them to do regardless of the circumstances.[84] Thus, the Supreme Court reifies race—and racism—through its Fourth Amendment jurisprudence by ignoring the reality that Black people are socialized to behave in a particular manner during police interaction.  As a result, the reasonableness element of the free-to-leave doctrine is applied differently to Black versus White people.

More specifically, Carbado asserts that Black men are socialized into following a racial script during police interaction.  This script is borne out of the Black collective consciousness of race-based policing.[85] Thus, many Black men are inherently apprehensive about police encounters because people of color are “socialized into engaging in particular kinds of performances for the police.”[86] According to Carbado, “[m]ost, if not all, [B]lack people—especially [B]lack men—are apprehensive about police encounters” because most of them “gr[e]w up with racial stories of police abuse.”[87]

Black men are often simply rehearsing their blackness[88] during police encounters, and the collective consciousness of blackness dictates that survival requires acquiescence to the demands of officers.  As a result, reasonable Black men often do not feel free to leave, decline a request, or otherwise terminate a police encounter.[89] Instead, Black people often feel the need to comply with the police’s attempt to use the Fourth Amendment as a “technology of surveillance”[90] against Black people.  In contrast, a “reasonable [White] person”[91] would generally feel free to terminate a police encounter precisely because the “reasonable person”—a White male—experiences the Fourth Amendment as “a constitutional guardian of property, liberty, and privacy.”[92] Thus, the reasonable White male expects his privacy to indeed be protected from police intrusions by the Fourth Amendment.  The race reality in the United States is that Blacks are more burdened by, and benefit less from, the Fourth Amendment than White people.[93]

The way the Court constructs race does not reflect the race realities of the United States because the Court pretends that Black citizens and police interactions are not poisoned by the history of racial policing and insists on “colorblind” standards.[94] The result has been racist Fourth Amendment jurisprudence.

III. The Reasonable Black Man: Justifying the Integration of Race into the Seizure Analysis Using the Road Paved by the Reasonable Woman Standard

 

While Greene’s article proposes that the Fourth Amendment reasonable person standard should include Blacks, Carbado’s article proposes that the “totality of circumstances approach” to the free-to-leave test should incorporate race into the list of factors.[95] Under Carbado’s approach, courts must consider the race of both the suspect and the officer as factors when determining whether a reasonable person of the suspect’s race would have felt free to leave or otherwise terminate the police encounter.[96]

Read together, the solution to the injustice perpetrated against Black men in Fourth Amendment jurisprudence may be to force courts to examine the “totality of the circumstances”[97] by explicitly requiring a “reasonable Black man” standard when the person who was stopped is a Black man.  Currently, the “totality of the circumstances” standard articulated in Bostick[98] does not consider being Black as part of a suspect’s circumstances.

This solution is not so radical, considering that feminists have been successful in convincing some courts to adopt modified reasonable person standards.  As discussed in Part two, when the unique experiences of women affect what constitutes reasonable conduct, some courts have applied the reasonable woman standard or the reasonable battered woman standard in the areas of sexual harassment and self-defense.  Why should courts not also apply a modified reasonable Black man standard in Fourth Amendment cases, when the unique racial experiences of Black people affect what constitutes reasonable conduct?  After all, race, like gender, is a social construct[99] that affects the way people see and interact with the world.[100]

A.   Compensating for Pluralistic Ignorance of Judges: Lack of Diversity Among Judges Perpetuates a Narrative Where False Race-Neutrality Remains Unexamined

 

Similar to the necessity for the reasonable woman standard in cases where a gendered perspective matters—as courts largely composed of men tend to be unresponsive to the perspectives of women,—the reasonable Black man standard is also needed where a race-d perspective matters—as courts largely composed of White men tend to be unresponsive to the perspectives of Black men.  The pluralistic ignorance[101] caused by the White male demographic of this country’s court system[102] heightens the need to force courts to view reasonableness in a gendered or race-d way when those characteristics of people are particularly salient.

“[I]t is almost universally recognized that the ‘situated’ stance” of a decision-maker will affect his or her perspective of reasonableness under the circumstances.[103] In the context of gender, Justice Ginsburg has stated that the presence of two “female [J]ustices would compel the men [on the Court] to ‘[l]ook at life differently.’”[104] In the same vein, Justice O’Connor has said, “like race, gender matters” to the range of perspectives that affect legal decision-making.[105] The effect of the pluralistic ignorance of White male judges is that the views of White men about Black men, which may be false, are “shared and validated within the reference group in an unbroken circle of ignorance.”[106] If courts are truly concerned with justice, they must use a reasonable Black man standard in Fourth Amendment cases.  This is especially important because most judges are White males.

After all, one of the advantages of using a “reasonable woman” or a “reasonable Black man” standard is that decision-makers are reminded to use them as the basis of the objective standard of reasonableness when necessary.  In a self-defense case with a female defendant, the “reasonable woman” standard reminds the decision-maker to be objective when judging the defensive conduct’s reasonableness and to think of reasonableness from the perspective of a reasonable woman.  The “reasonable Black man” standard would also force judges to realize that the “reasonable person” standard, which ultimately operates as a reasonable White man standard, is not colorblind.  Using these modified standards would consistently remind judges of the reality that context matters in sexual harassment, self-defense and “free to leave” cases.  A woman or Black male victim, defendant or suspect cannot be measured against an “objective” reasonable person who is not socialized as a woman or as a black man, respectively.  To do so would be unrealistic and unfair because in those circumstances, gender and race affect the reasonableness of behavior.

To the extent that some sexual harassment cases will go to a jury, female victims would have a chance to draw a non-male-dominated panel of decision-makers to analyze their cases.  For example, such a panel could address the issue of objective offensiveness of the alleged conduct based on a reasonable person standard.  On the other hand, a Black man’s Fourth Amendment rights will be decided based on the reasonable person’s perception of being free to leave by a judge who will most likely be White.  This argument is not suggesting that male decision-makers always decide against female victims or defendants or that no White judges are sensitive to Black men’s plight when facing the police.  This argument is also not about possible intentional discrimination by decision-makers.  Instead, this idea is that the un-gendered or un-raced reasonable person standards are inadequate because people tend to think of themselves as reasonable people.  Therefore, “objectivity,” in the case of the reasonable person standard, is affected by the gendered or race-d perspective of the decision-maker.  Furthermore, due to the fact that most judges are White males, a judge faced with analyzing a Fourth Amendment free-to-leave question will most likely think of a “reasonable person” who is a White male like him.  Considering the possibility of pluralistic ignorance leaving inaccurate views unexamined, the need for a “reasonable Black man” standard in the free-to-leave test is even more pressing than the need for the “reasonable woman” standard.  Unlike the free-to-leave test where the “reasonable (un-raced) person” is only measured by the perspective of a judge who is most likely a White male,[107] the “reasonable (un-gendered) person” in workplace sexual harassment cases has the chance of being measured by the perspective of a diversified jury.[108]

Modified reasonable person standards would force the judges out of the false neutrality under which they presume to operate.  Judges who use the reasonable woman standard are forced to examine women’s gendered reality when deciding reasonableness under the circumstances. Similarly, judges who use the modified reasonable Black man standard will be forced to look outside their White reference group and examine the social reality of Black men.  This approach may be particularly helpful when deciding what a reasonable person would have felt free to do in the presence of police.  Most importantly, to the extent that White judges are insulated by “distorted demographics of the . . . judiciary,” the modified reasonable Black man standard emphasizes that “they may be pluralistically ignorant of the ways in which the privilege of color . . . operate[s] in contemporary America.”[109] The reasonable Black man standard forces judges to make decisions reflecting social realities that better resemble justice.

 

B. Accounting for Unique Experiences: Making the Legal System Responsive to Black Men’s Perspectives

 

The traditional reasonable person standard was not responsive to the experiences of women, especially in the areas of sexual harassment and self-defense where the gendered perspective of reasonable women mattered.  Consequently, the un-gendered standard resulted in much injustice because it operated more as a male-centered standard.  Courts that have adopted a reasonable woman standard seem to have done so primarily for two reasons: (1) the reasonable person standard in operation is merely a reasonable man standard;[110] and (2) the reasonable woman standard is appropriate in sexual harassment and in self-defense claims.[111] A reasonable woman’s experiences and resulting perspectives are relevant to analyzing reasonable perception of offensiveness and reasonable imminence of danger.[112] Similarly, considering that the traditional reasonable person standard operates merely a reasonable White man standard, it has been unresponsive to perspectives of Black men.  Consequently, justice often does not exist for Black men in cases concerning the Fourth Amendment free-to-leave test.  Justice and logic dictate that a reasonable Black man standard be used when applying the “free to leave” test to a Black man because only a reasonable Black man’s experiences and perspective are relevant when analyzing the belief of feeling free to leave a police encounter.

In deciding a self-defense case where gender clearly mattered, the Supreme Court held that “[t]he [female defendant] was entitled to have the jury consider her actions in the light of her own perception of the situation, including those perceptions which were the product of our nation’s ‘long and unfortunate history of sex discrimination.’”[113] Similarly, in deciding a case with a Fourth Amendment free-to-leave test question, a Black man should be entitled to have the judge consider his actions in light of his perception of whether he was free to terminate the encounter, including those perceptions which are a product of this nation’s long and unfortunate history of racial discrimination.  Adopting a reasonable Black man standard in the free-to-leave test with a Black suspect is how the courts can be responsive to Black men’s police experiences, which this society has perpetuated and legitimized for so long.[114] Adopting this standard would serve Black men with a semblance of justice regarding their Fourth Amendment rights, much in the same way justice has been served to women in sexual harassment and self-defense cases through the use of a reasonable woman standard.

United States v. Drayton is an example of a Supreme Court case that would have been decided differently had the Court utilized a reasonable Black man standard.[115] In Drayton, the Court held that the Fourth Amendment permits police officers to ask questions and request consent to search passengers on a bus without advising them of their right to refuse involvement in the encounter.[116] Despite articulating that it was following the rule set in Bostick,[117] the Drayton Court failed to consider the “totality of the circumstances” in determining whether Drayton participated in a consensual encounter with Officer Lang because the Court ignored that Drayton was Black and Officer Lang (and the other officers) were White.

In failing to account for the racial context of the bus encounter, the Drayton Court could not have properly analyzed the Bostick rule because the “totality of the circumstances” cannot be considered without race; after all, when people experience police encounters, race does matter.[118] Even assuming that Drayton knew he could have lawfully terminated the police encounter, Drayton’s police encounter likely created an “atmosphere of obligatory participation”[119] because a reasonable Black man in an encounter with several White police officers could reasonably have felt obliged to cooperate or else.  In his dissent, Justice Souter discusses the idea that the police led Drayon to believe in their introduction “that they would prefer ‘cooperation’ but would not let the lack of it stand in their way.”[120] Had the Justices used a “reasonable Black man” standard in consideration of Drayton’s race and analyzed the free-to-leave test with the consciousness of what a reasonable Black man would have believed were his choices, perhaps they would have concluded that Drayton could not reasonably have believed he was free to terminate the police encounter.

Indeed, this idea of being responsive to a particular group of people’s perspective in deciding reasonableness is what allowed the Ninth Circuit, in United States v. Washington,[121] to properly preserve the Fourth Amendment rights of a Black man.  In Washington, the Ninth Circuit took into account “[r]ecent relations between police and the African-American community in Portland[, Oregon]” when analyzing whether an African-American man was seized without probable cause or reasonable suspicion despite consenting to a search of his car that revealed a gun.[122] The Court considered the “totality of the circumstances” and concluded that the man’s consent to the search was not voluntary.[123] These circumstances included the fact that, “in the one and a half years before [the officer] initiated contact with [the suspect], there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens.”[124] The Ninth Circuit properly considered racial tensions between the police and Black people that had spawned a publicity campaign urging Black people in the community to comply with police commands, and concluded that these circumstances could have contributed to the defendant’s reasonable belief that he was not free to terminate the police encounter.

Fourth Amendment jurisprudence would be fairer if courts did not need the “reasonable Black man” standard to properly account for the unique experiences and perspectives of Black men when analyzing what a reasonable person felt free to do in a police encounter.  In a more progressive world, judges would automatically engage in a totality of the circumstances discussion that would include the suspect’s race and possible race consciousness prior to the encounter in the context of the “reasonable person” standard.  Unfortunately, most judges are not as sensitive as the Ninth Circuit Washington court.  As a result, Fourth Amendment jurisprudence has continued to perpetrate injustices against Black men.  For now, adopting a “reasonable Black man standard” under the free-to-leave test when the suspect is a Black man is the way to achieve consistent justice.

 

 

 

 

 

C. Both Unable to Leave: Special Circumstances of Battered Women Also Apply to Black Men

The imminence of the danger element is the most critical element to the success of a self-defense claim.[125] To be successful, “[t]he defendant must honestly and reasonably believe that death or serious bodily injury is imminent.”[126] A defendant’s perception of future danger is not enough; the attack must be impending or currently happening.[127]

However, this “traditional [imminence] requirement[] do[es] not adequately address the circumstances surrounding why a battered woman strikes back against her abuser”[128] because the traditional notion of self-defense was developed for situations involving a man who kills another man.[129] For example, in a traditional self-defense case, the victim usually has only one encounter with the aggressor,[130] but a battered woman has an ongoing or past relationship with her male abuser.  Her perception of imminence of danger will be affected by her knowledge of the abuser’s character and propensity for violence.[131] Thus, battered women arguing self-defense usually failed.  Accordingly, courts eventually adopted the “reasonable battered woman” standard because the traditional imminence requirement considers “only the circumstances immediately surrounding the killing, and use of an objective reasonable man standard [that] necessarily defeat[s] the woman’s claim.”[132]

Courts faced with a seizure question prompting the use of the free-to-leave test should use expert testimony to explain the effect of this country’s history of racial policing on Black men’s perception of freedom to leave an encounter.  Battered women cases use expert testimony in the exact same way to address the effect of the battered woman syndrome on a woman’s perception of imminence.[133] An expert addresses the many reasons that battered women do not leave abusive relationships.[134] Perhaps the worst is the fear that her abuser would kill her if she attempts to leave.[135] In the end, “[k]illing her abuser becomes her only means of escape.”[136] Similarly, in a Fourth Amendment case, a sociologist might explain why a reasonable Black man may feel unable to freely leave a police encounter.  Compared to the potential privacy intrusion, a reasonable Black man may fear the graver consequence of police brutality.  In the end, the reasonable Black man “consents” to the police encounter for lack of a safer choice.

Moreover, similar to the battered woman who is responding to her circumstances in accordance with her acculturation as a victim of her social reality,[137] Black men are also likely victims of the social reality of racial policing and are potentially responding to police encounters based on the socialization of Black men to be acquiescent to the police.  Accordingly, much like the reasonable battered woman who does not leave due to lack of empowerment, a reasonable Black man may not feel free to leave or terminate a police encounter due to lack of empowerment.  In both cases, the lack of empowerment results from social realities that are neither the fault of battered women nor Black men.

Based on the foregoing, the objective measure of an un-gendered reasonable person and the objective measure of an un-raced reasonable man are inadequate standards for analyzing reasonableness in certain circumstances.  Just as a reasonable male person[138] standard may be unable to account for the imminent danger battered women feel in non-confrontational settings,[139] the reasonable White man standard may be unable to account for Black men’s belief that they are not free to leave a police encounter.  Thus, where a person’s gender or race socialization plays a significant role in the reasonableness of that person’s perspective, justice requires an analysis of that person’s actions based on the uniqueness of the group’s social reality.  The rationale is that the reasonableness standard is tied to what would make sense to that group of people, based on a shared history, under the circumstances.

D. Not a New Standard, But Rather a Clarification of the Existing Standard

The use of this reasonable woman standard is not necessarily the introduction of a female reasonableness standard that is different from male reasonableness.[140] Instead, the use of this standard is an application of a female reasonableness standard as it is influenced by women’s experiences.[141] In this sense, the reasonable woman standard, instead of being a radical new standard, is just an attempt to force courts to apply the supposedly gender-neutral reasonable person standard more carefully.  Rather than perpetuating the default male-centered point of view, the reasonable woman standard serves as a reminder to judges that engaging in a conversation that contextualizes the woman’s gender in relation to the issue at hand is necessary in the particular case.

In the same vein, the proposed use of the reasonable Black man standard is not necessarily a Black reasonableness standard that presupposes it is per se different from White reasonableness.  Instead, the reasonable Black man standard is a measure of reasonableness that takes into account the experiences of Black people with racial policing.  In this sense, adopting the reasonable Black man standard is not as extreme as critics would claim because its purpose is to prevent the courts from continuously perpetuating a “colorblind” standard that has not been “colorblind” in its application.  While not necessarily a de facto “White” standard, the “colorblind” standard has often excluded the historical experiences of Black people in matters like racial policing.

Adopting a modified reasonable person standard for people who experience the world differently based on group membership can be justified because of the theory of socialization.[142] The Ellison court’s justification for adopting the reasonable woman standard is useful:

[B]ecause women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior.  Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault.[143]

Similarly, Black men have a stronger incentive to be concerned about possible harassment during police encounters because Black men are disproportionately victims of police harassment.[144] During a police encounter, Black men may reasonably feel disempowered to terminate the encounter due to the concern that not cooperating with the police could lead to increased suspicion, verbal harassment, or police brutality.  Accordingly, a reasonable Black man may not feel free to leave an encounter that a reasonable White man may feel free to leave.  However, judges who purport to be colorblind tend to apply a reasonable White person standard.  Consequently, they exclude by default the unique experiences of Black men when deciding what a reasonable person—who happens to be Black—would have felt free to do under the totality of the circumstances.

In addition, just as the use of a reasonable woman standard does not mean that the existence of sexual harassment is a foregone conclusion or that a woman is automatically acquitted in self-defense,[145] the use of reasonable Black man standard will not be dispositive of proper seizure.  Judges in sexual harassment cases must still analyze whether a reasonable woman would have been offended by certain conduct.[146] Additionally, judges in self-defense cases must still analyze whether a reasonable woman would have perceived an imminent threat to life that warrants deadly defensive force.[147] Thus, judges faced with the question of applying the exclusionary rule would still need to analyze whether a reasonable Black man, under the circumstances, would have felt free to leave a police encounter.

 

IV.  The “Reasonable Black Man” Standard Forces Judges to Deconstruct Harmful Socialization

 

Courts generally perceive themselves as “neutral” when adopting a reasonable person standard, which should be un-gendered or un-raced, but actually measures people against a reasonable White man standard.  Yet, both women and Black people face the double-edged sword of “the invisibility of . . . discrimination and their heightened visibility as others.”[148] However, a few differences between gender and race make race a social construct more injurious than gender.

The Black-White perception gap is more pronounced than the woman-man perception gap.[149] Due to this perception gap, an ostensibly objective reasonable person standard—that is actually a reasonable White man standard—ends up being more detrimental to justice for Black men.  White male judges have a harder time imagining the perspectives of Black men.  One reason that racial differences in the perception of discrimination are more pronounced than gender differences is perhaps the fact that “men and women are not segregated in most settings.”[150] On the contrary, almost “everyone has significant relationships, on a familial, intimate and/or social level, with people of the other sex.”[151] Although “psychological integration does not necessarily follow from spatial integration,”[152] exposure to perspectives outside one’s own reference group does help break the circle of pluralistic ignorance.[153] For example, the presence of both men and women in the typical heterosexual family provides exposure to perspectives of both sexes on gender discrimination, violence and other topics.[154]

Blacks and Whites, by contrast, typically do not form the same significant relationships on a familial or social level, which results in a relatively unified socialization on race and how to negotiate discrimination.[155] As a consequence, White people, generally unexposed to the socialization that engenders Black people’s particular aversion to challenging the police, fail to see the reasonableness of Black people’s behavior during police encounters.  Thus, if courts can acknowledge the logic behind adopting a reasonable woman standard in cases where gender matters, courts should also be able to acknowledge the logic behind adopting a reasonable Black man standard in the Fourth Amendment free-to-leave test where race matters.

The social construct of race is more injurious than that of gender.  Unlike gender where biological differences could arguably justify the differentiated socialization of gender,[156] scientific evidence offers little to support the socialization of race that, for example, treats Black people as more criminal than White people.[157] Considering that race, unlike gender, is a completely arbitrary construct,[158] the judiciary should explicitly account for the perspectives of Black men with regard to police encounters.  To do otherwise has the effect of legitimizing a seemingly neutral law that, in fact, unfairly imposes a flawed standard of reasonableness for Black men.  To account for this country’s history of racial policing that has led to the socialization of Black men to be acquiescent to the police, courts should analyze Black men’s police encounters under a reasonable Black man standard.  Some courts have embraced the reasonable woman standard to address the injustice women have suffered when measured against an “objective standard” that does not account for this country’s history of gender socialization.  Thus, courts are presented with even more compelling reasons to adopt a reasonable Black man standard to mitigate the clearly unjustifiable harms this country’s race construction has imposed on Black people.[159]

V.  Conclusion

 

What reasonable Black man who has been socialized in the United States amidst ubiquitous examples of police abuse and brutality specifically directed at Black men would still believe that he is free to leave or otherwise terminate a police encounter without suffering graver consequences than invasion of privacy or possible prosecution?  Judges do not see the world from this perspective because, being predominantly White, they do not think or worry about the possibility of police harassment on a regular basis.  Ultimately, the problem with current Fourth Amendment jurisprudence on the free-to-leave test is not the concept of reasonableness itself, but that this concept is what is reasonable to a White man.

Feminists have long protested the reasonable person standard in sexual harassment and self-defense cases, arguing that reasonableness is ultimately construed as what is reasonable to a man.  In response, many courts have adopted a reasonable woman standard to account for the different perspectives and experiences of women.  Another group of Americans that have unique perspectives and experiences is Black males and evidence suggests that Black men tend to experience police encounters differently than White men.  Therefore, the Supreme Court should adopt a reasonable Black man standard into the Fourth Amendment free-to-leave test.

Critics of adopting the reasonable Black man standard into the Fourth Amendment free-to-leave test have argued that this modified standard will invite further modifications to account for gender, ethnicity, other races or sexual orientation.[160] Professor Tracey Maclin refutes this criticism eloquently: “Just because similar claims may be presented by other groups today or at some future date is no reason not to consider the case of [B]lack males who have sufficient cause for complaint now.”[161] Just as some courts have adopted the reasonable woman standard into sexual harassment and self-defense cases, the Supreme Court should now respond to Black men’s complaints and adopt the reasonable Black man standard in the free-to-leave test.  Any difficulty in applying this standard should be of no consequence.

After all, some of this country’s greatest minds serve on our courts and surely are capable of the intellectual flexibility involved in applying the reasonable Black man standard.  Judges should be able to take the facts of a case, analyze the totality of the circumstances under the free-to-leave test, and have the ability to determine how race could have been a factor in a man’s decision not to terminate a police encounter.  Race is part of the story; thus, an analysis of the totality of the circumstances is not complete without considering race as a factor.

Justice is inextricably connected to moral values “of right, legality and truth.”[162] “Morality requires much more than just legally correct outcomes and automaton-like adherence to legal rules.”[163] Morality requires exercising intellectual flexibility when the traditional application of the law proves to be a systematic misappropriation of justice.  Furthermore, turning a blind eye to the injustice perpetrated against many Black people is not acceptable simply because it will be hard to correct.  Legal and moral principles should require us to pay attention to the human aspects of police interaction because the application of the free-to-leave test of the Fourth Amendment often affects one’s liberty interests.[164] Justice and morality should compel the courts to adopt a reasonable Black man standard when applying the free-to-leave test because our current laws do not account for the reality of black people’s police experiences.

Adopting a reasonable Black man standard into Fourth Amendment jurisprudence is only the beginning in eradicating racism.  The first step is to force the courts to consider how race factors into the decisions of a Black man, or the decisions he does not feel free to make, during a police encounter.  Hopefully, people may one day truly acknowledge the reality that in the United States, race matters when Black men interact with police.  Race matters when determining whether a police encounter is consensual because this country’s history of racial policing has scarred the consciousness of many Black people.  Thus, a reasonable Black man, for the sake of his own safety, may not feel free to exercise his legal rights and terminate a police encounter.

Real justice requires telling the whole truth.[165] Various Supreme Court cases are examples of how justice has not existed for Black people regarding Fourth Amendment jurisprudence precisely because the whole truth had not been told.  The Court has conveniently avoided the fact that racial policing is real and that it has been part of this country’s history for far too long.

Accordingly, excluding race from analysis under the totality of the circumstances test is immoral and cannot be justified any longer because colorblind jurisprudence is really just judicially-sanctioned blindness to truth.  Adopting the reasonable Black man standard is one way the truth about Black people’s police encounters can start to be told.  It is one way we can start race-ing to justice.


* Howard University School of Law, J.D., 2010; Brown University, B.A. Sociology, 2005.  To Professor Gregory Elliott, my sociology guru, and the reason I seek, everyday, to understand society as a product of our doing.  Because of you, I know we can do better if we try — here is one attempt of mine.  To Professor Josephine Ross, the mind behind the law school class for which this paper was written.  Not only did I enjoy your class; it truly inspired me to synthesize sociology and the law to conceive a better version of justice.  This article would not be published if not for your vision, guidance and encouragement.  To the members of the WJLER, catalysts for change, all of you.  Thank you for the undoubtedly countless hours editing my work and, more importantly, for recognizing value in this article’s thesis.  To Ike Ofobike, my law school life-saver and confidant.  Law school would not have been half as enjoyable if not for your wit, wisdom and Navan.  To Papa, for teaching me about social justice by example.  And to Mama, for having steadfast faith that my best will always be good enough to make you proud — and for loving me into believing it.  Thank you for being my number one fan.

[1] This paper uses “Black people” and “Black men” interchangeably.  Similar to sentiments expressed infra note 5, in recognition of the idea that social constructs such as race, gender, class, etc. affect each person’s perspective.  It is arguable that a Black woman’s perspective is not reflected in the un-raced reasonable person (who is ostensibly a White man) of current Fourth Amendment jurisprudence.  However, the adoption of the “reasonable Black woman” standard into Fourth Amendment jurisprudence is a topic for another to pursue.

[2] “When I say ‘Black’ I also mean ‘brown’ and ‘yellow’ and ‘red’ and all other people who suffer discrimination because of their color . . . .”  Lyndon B. Johnson, Running Against the Twelfth Man of History, N.Y. Times, Dec. 26, 1972, at L33.  Similar to Mr. Johnson, I recognize that racial policing affects not only Black people, but other minorities as well.  However, the experience of other minorities is beyond the scope of this paper because this paper’s focus is on how the history of racial policing against Black people ought to compel the courts to adopt a “reasonable Black man” standard in Fourth Amendment jurisprudence.  One could probably make a strong case for the application of this modified reasonableness standard to reasonable brown/yellow/red men, but that argument is for another to make.

[3] Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 985 (2002).

[4] Id.

[5] Dave Chappelle: Killin’ Them Softly (HBO television broadcast 2000) (originally performed at the Lincoln Theater in Washington, D.C.), available at http://icomedytv.com/Comedy-Videos/ID/1089/Dave-Chappelle-Stand-Up-Killing-Them-Softly-5653.aspx.

[6] See, e.g., Carbado, supra note 2, at 949-64.  Carbado’s narrative of his personal experience with the police is compelling because it is the sort of story that people would like to believe does not happen to respectable Black men.  See also Tracy Jan, Harvard Professor Gates Arrested at Cambridge Home, Boston Globe (July 21, 2009),  at B1.

[7] Carbado, supra note 2, at 966.

[8] Florida v. Bostick, 501 U.S. 429, 436 (1991).

[9] See, e.g., INS v. Delgado, 466 U.S. 210, 219 (1984).

[10] U.S. v. Drayton, 536 U.S. 194, 200 (2002).

[11] Carbado, supra note 2, at 974-1003.

[12] This used to be called a reasonable man standard, but was changed to the more politically-correct reasonable person standard, at the insistence of feminists.  Robbin S. Ogle & Susan Jacobs, Self-Defense and Battered Women Who Kill: A New Framework 106-7 (Praeger Publishers 2002) (“An objective standard is the ‘reasonable man’ standard.  (In these more enlightened and politically correct days, one might be inclined to say ‘reasonable person’ standard.  But the law typically does not . . . .”)).  Id.

[13] See, e.g., State v. Wanrow, 559 P.2d 548, 558 (Wash. 1977); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3rd Cir. 1990) (using a reasonable woman standard for viewing incidents of workplace harassment).

[14] See Cynthia Lee, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom 212-17 (New York University Press 2003).  Lee identifies four types of feminists: sameness feminists (because men and women are the same, the way to equality is through gender neutral standards), difference feminists (because men and women are different, gender-conscious standards are appropriate in cases where gender is known to matter), radical feminists (because the reasonableness standard fails to address issues of structural patriarchy and male dominance, the reasonableness standard itself is problematic) and critical feminists (because things like race and ethnicity also matter, a reasonable woman standard is inadequate; the inherent problem lies in the reasonableness standard itself).

[15] The term “gender” is usually used to emphasize the cultural socialization surrounding the difference between men and women, while the term “sex” is usually used to emphasize the role of biology in the difference between men and women.  See Stephanie Riger, Rethinking the Distinction Between Sex and Gender, in Power, Privilege and Law: A Civil Rights Reader 232, 233 (Leslie Bender & Daan Braveman eds., 1995) for a more complete discussion of the “gender” and “sex” debate.  Please note that this paper will use “gender” when talking about the difference between men and women, with the acknowledgement that both cultural socialization and biology play a role in the system of power that privileges maleness in the law.

[16] Lee, supra note 14, at 213-14.

[17] See, e.g., Ellison, 924 F.2d at 879; see infra note 32.

[18] See, e.g., Wanrow, 559 P.2d at 559; see infra note 39 and accompanying text.

[19] See, e.g., State v. Gartland, 694 A.2d 564, 575 (N.J. 1997) (“At a minimum, the jury in [defendant’s] case should have been asked to consider whether, if it found such to be the case, a reasonable woman who had been the victim of years of domestic violence would have reasonably perceived on this occasion that the use of deadly force was necessary to protect herself from serious bodily injury”).  See State v. Koss, 551 N.E.2d 970, 971 (Ohio 1990) (“Admission of expert testimony regarding the battered woman syndrome does not establish a new defense or justification. It is to assist the trier of fact to determine whether the defendant acted out of an honest belief that she is in imminent danger of death or great bodily harm and that the use of such force was her only means of escape”).

[20] See, e.g., Caroline A. Forell & Donna M. Matthews, A Law of Her Own: The Reasonable Woman as a Measure of Man xvii (New York University Press 2000) (arguing that a reasonable woman standard should be adopted in cases “where men’s and women’s life experiences and views on sex and aggression diverge and women are overwhelmingly the injured parties”).  See also Katherine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 837 (1990) (explaining that feminists, when asking the “woman question” examine “how the law fails to take into account the experiences and values that seem more typical of women than of men . . . or how existing legal standards and concepts might disadvantage women[, and] … assume[] that some features of the law may be not only [non-neutral] in a general sense, but also “male” in a specific sense”).

[21] 42 U.S.C. § 2000e-2(a)(1) (1964).  The Civil Rights Act of 1964 makes it illegal to discriminate on the basis of race, color, religion, sex or national origin.

[22] Meritor Sav. Bank v. Vinson, 477 U.S. 57, 59 (1986).

[23] 510 U.S. 17 (1993).

[24] Id. at 21-22.

[25] Id.

[26] See supra note 20.

[27] See, e.g., Steven H. Winterbauer, Sexual Harassment—The Reasonable Woman Standard, 7 Lab. Law. 811, 817-18 (1991) (arguing that a reasonable woman standard allows female employees a higher chance of success when asserting sexual harassment claims than the traditional reasonable person standard).  See also Sally A. Piefer, Sexual Harassment From the Victim’s Perspective: The Need for the Seventh Circuit to Adopt the Reasonable Woman Standard, 77 Marq. L. Rev. 85, 111 (1993) (advocating for a victim-centered standard, and pointing out that the “purpose of the reasonable woman standard is to combat existing stereotypes and common discriminatory practices that have become prevalent in today’s workplace”).

Feminist Carol Gilligan explains the psychology of human development that justifies a reasonable woman standard:

The failure to see the different reality of women’s lives and to hear the differences in their voices stems in part from the assumption that there is a single mode of social experience and interpretation.  By positing instead two different modes, we arrive at a more complex rendition of human experience which sees the truth of separation and attachment in the lives of women and men and recognizes how these truths are carried by different modes of language and thought.

Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development 173-74 (Harvard University Press 1993).

[28] Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1203 (1989).

[29] Women comprise: 32.4% of justices on state courts of last resort; 24.7% of U.S. District Court judges; 26.9% of U.S. Circuit Court judges; and 3 of 9 U.S. Supreme Court Justices.  American Bar Association Comm’n on Women in the Profession, A Current Glance at Women in the Law 3 (2009) available at www.abanet.org/women/CurrentGlanceStatistics2009.pdf; Members of the Supreme Court of the United States, Supreme Court of the United States, http://www.supremecourt.gov/about/members.aspx (last visited Nov. 27, 2010).

[30] Abrams, supra note 28, at 1203.

[31] Id. at 1202-03.

[32] For example, in explicitly adopting the “reasonable woman” standard for sexual harassment cases, the Ellison court, said: “we believe a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.”  Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).  See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3rd Cir. 1990) (using the standard of “a reasonable person of the same sex in that [plaintiff’s] position” where the plaintiff was a woman); see also Lehmann v. Toys ‘R’ Us, 626 A.2d 445, 457-58 (N.J. 1993) (choosing an “objective and gender-specific” standard in evaluating work-related sexual harassment cases, where the standard for analyzing a hostile or intimidating work environment for a female plaintiff is from the perspective of a reasonable woman, while the standard for a male plaintiff is from the perspective of a reasonable man).  Cf. Oncale v. Sundowner Offshore Serv’s, Inc., 523 U.S. 75, 81 (1998) (holding that the objective reasonableness standard applicable in hostile workplace environment cases is that of a “reasonable person in plaintiff’s position, considering ‘all the circumstances,’” but avoiding the explicit articulation of a reasonable woman standard).

[33] See Forell & Matthews, supra note 20. See also Lee, supra note 14, at 214.

[34] Lee, supra note 14, at 214.

[35] Ogle & Jacobs, supra note 12, at 106.

[36] Id.  The authors observed that battered women cases have encouraged the reexamination of “imminence” in the “strict temporal sense,” in which the element seems to require that the violence from which someone is defending oneself has to be occurring at the same moment as the act of self-defense.

[37] Id. at 106-07.

[38] Id. at 107.

[39] 559 P.2d 548 (Wash. 1977).

[40] Id. at 558.

[41] Id. at 550.  In this case, the Wanrow Court found the male-centered objective standard particularly unjustified because the defendant was a 5 foot, 4 inch woman in crutches, while the victim was a 6 foot, 2 inch man.

[42] Id. at 559 (emphasis added) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)); see also Gentry v. State, 441 S.E.2d 249, 250 (Ga. Ct. App. 1994) (noting, and not disputing, the trial court’s use of the “reasonable woman” standard in instructing the jury on defendant’s self-defense claim where the defendant was a woman).

[43] See, e.g., Kim Lane Scheppele, The Reasonable Woman,The Responsive Community: Rts and Resp, at 42-43 (Fall 1991)  (a reasonable woman standard for women who kill their abusers has been adopted by some judges); Forell & Matthews, supra note 20, at 18 (explaining that a reasonable woman would likely view “killing one’s battered out of fear of severe injury or death as self-defense”).

[44] See Jeffrey M. Shawver, Battered By Men, Bruised By Injustice: The Plight of Women Who Fight Back and The Need For a Battered Women Defense in West Virginia, 110 W. Va. L. Rev. 1139, 1166-68 (2008).  See also Ogle & Jacobs, supra note 12, at 153 (“We contend that in homicide cases in which a battered woman is charged with murder of her abuser, it is critically important that the jury by allowed to understand the entire context of the battering relationship”); Lee, supra note 14, at 128.

[45] Stephanie M. Wildman, A Law Of Her Own: The Reasonable Woman As A Measure of Man, 98 Mich. L. Rev. 1797, 1798 (2000).

[46] Joshua Dressler, Understanding Criminal Law 258-59 (4th ed. 2006).

[47] Id. at 259; see also Robert F. Schopp, Barbara J. Sturgis & Megan Sullivan, Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. Ill. L. Rev. 45, 74 (1994).

[48] Ogle & Jacobs, supra note 12, at 106-7.

[49] The notion that the system has been unfair is necessarily predicated not only on the acceptance of the Battered Women’s Syndrome, but also on the acknowledgment that because women are the primary victims of domestic violence, a reasonable woman’s reaction to such violence should be the basis for the objective standard of what is reasonable conduct.  Shawyer, supra note 44, at 1146-48 (internal citations omitted)

[50] Ogle & Jacobs, supra note 12, at 153-54 (specifically naming Colorado, Ohio and South Dakota as states that have given some version of a “reasonable battered woman” instruction to the jury in domestic violence self-defense cases).

[51] Florida v. Bostick, 501 U.S. 429, 436-39 (1991).

[52] United States v. Mendenhall, 446 U.S. 544, 554 (1980).

[53] Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).

[54] Bostick, 501 U.S. at 437.

[55] Id.  The Court refrained from deciding whether a seizure occurred in this case because the trial court failed to make express findings of fact regarding the issue and “rested its decision on the single fact – that the encounter happened on a bus – rather than on the totality of the circumstances.”  Id.

[56] Id. at 434 (“So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.”) (internal citation omitted).

[57] Id. at 433-34. (stating that without reasonable suspicion to justify a seizure, evidence subsequently gathered by the government must be suppressed).

[58] Carbado, supra note 2, at 974.

[59] Id.

[60] Chappelle, supra note 4.

[61] See, Tracey Maclin, “Black and Blue Encounters” – Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 243-44 n.2 (1991) (citing six different studies and articles by scholars and researchers spanning three decades that point to police officers’ negative attitudes toward Blacks) (citations omitted).

[62] Studs Terkel, Race: How Blacks and Whites Think and Feel About the American Obsession 402-03 (1992).

[63] Dwight L. Greene, Justice Scalia and Tonto, Judicial Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v. Florida, 67 Tul. L. Rev. 1979, 2022 (1993).

[64] Id. at 2023; Chandler Davidson, Race and Class in Texas Politics xxvii-xxviii (1990); Stephen J. Whitfield, A Death in the Delta: The Story of Emmett Till 39 (1988).

[65] Greene, supra note 63, at 2023.

[66] Id. at 2023-24.

[67] David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 24-25 (1999); see also Pamela Newkirk, Helping to Defuse the Tension, Newsday, May 31, 1992, at 3.

[68] Christopher A. Darden, In Contempt 110 (1996).

[69] Jerome McCristal Culp, Jr., Notes From California: Rodney King and the Race Question, 70 Denv. U. L. Rev. 199, 200-01 (1993).

[70] Erving Goffman, The Presentation of Self in Everyday Life 3 (1959).

[71] Greene, supra note 63, at 1981.

[72] Id. at 2024.

[73] Id. at 2024-25.

[74] Id. at 2025, 2045-46.

[75] Carbado, supra note 2, at 1000-01.

[76] Id.

[77] See id.; Greene, supra note 63, at 2024-25, 2028-30.

[78] See Carbado, supra note 2, at 1002; Greene, supra note 63, at 2038-39.

[79] See Greene, supra note 63, at 2013 According to Greene, one of the potential effects of pluralistic ignorance is that the objectively false nature of knowledge shared by the group remains undetected by judges “because the false knowledge is shared and validated within the reference group in an unbroken circle of ignorance.” Id. “Pluralistic ignorance refers to the [shared] erroneous cognitive beliefs . . . regarding other individuals.”  Hubert J. O’Gorman, Pluralistic Ignorance and Reference Groups: The Case of Ingroup Ignorance, in Surveying Social Life: Papers in Honor of Herbert H. Hyman 145, 148 (Hubert J. O’Gorman ed., 1988).

[80] See Greene, supra note 63, at 2013.

[81] See Carbado, supra note 2, at 968-70.

[82] Id. at 1000.

[83] Id. at 1002.

[84] See id. at 953.

[85] Id. at 966.

[86] Id.

[87] Carbado, supra note 2, at 985.

[88] Id. note 2, at 953; See Goffman, supra note 70, at 1 (explaining that, in everyday interactions, social beings choose to perform certain roles they perceive particular audiences expect of them as a way to adopt to certain situations).

[89] Florida v. Bostick, 501 U.S. 429, 437 (1991).

[90] Carbado, supra note 2, at 969.

[91] See Leslie Bender, A Lawyer’s Primer in Feminist Theory and Tort, 38 J. Legal Educ. 3, 20-25 (1988).  Despite the fact that the term “reasonable man” has been superceded by the term “reasonable person,” the objective “reasonable person” standards remains widely understood to be based on what is reasonable for a White, middle-class man.  As Leslie Bender explains: “[l]imited male perspectives are masked, erased or universalized through techniques of objective, third-person language and author invisibility, but those techniques do not make them less limited in fact.”  Leslie Bender, From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law, 15 Vt. L. Rev. 1, 19 (1990).

[92] Carbado, supra note 2, at 969.

[93] Id.

[94] Id. at 978.

[95] See Greene, supra note 63, at 2025; Carbado, supra note 2, at 1000.

[96] Carbado, supra note 2, at 1000.

[97] Florida v. Bostick, 501 U.S. 429, 437 (1991).

[98] See id.

[99] Race as a social construct is the idea that differences based on race is the invention of culture.  Race does not exist outside of social discourses that delineate culturally perceived and legitimated sameness and differences. See, e.g., Rachel F. Moran, The Elusive Nature of Discrimination, 55 Stan. L. Rev. 2365, 2397 (2003).

[100] Some courts have even used a reasonable Black man standard in race harassment cases with a Black victim, in consideration of the fact that a reasonable Black person might perceive the offensiveness of conduct differently from a reasonable White person.  See Harris v. Int’l Paper Co., 765 F. Supp.1509, 1515-16 (D. Me. 1991) (holding that the appropriate standard to apply in a “hostile environment racial harassment case is that of a ‘reasonable [B]lack person’” when the victim is Black).

[101] See supra note 79 and accompanying text for the definition of “pluralistic ignorance.”

[102] See supra note 29 for statistics on gender composition of U.S. courts.  Additionally, “[o]nly 3.3% of all judges in the United States are black.”  Taunya Lovell Banks, Will the Real Judge Stand-Up: Virtual Integration on TV Reality Court Shows, Picturing Justice: The Online Journal of Law and Popular Culture, (Jan. 16, 2003), available at http://www.usfca.edu/pj/realjudge_banks.htm (asserting that popular media makes it seem that there are more black judges in U.S. courts than there really are).  Furthermore, the likelihood of drawing even one black judge in a panel of three on the appellate level is only 20%.  Sherrilyn A. Ifill, Racial Diversity On the Bench: Beyond Role Models and Public Confidence, 57 Wash. & Lee L. Rev. 405, 454 (2000).

[103] Ifill, supra note 102, at 448.

[104] Id. (quoting Ruth Bader Ginsburg Sworn in as Supreme Court Justice (CNN television broadcast Aug. 10, 1993)).

[105] J.E.B. v. Alabama, 511 U.S. 127, 148 (1994) (O’Connor, J., concurring) (noting that “like race, gender matters” in juror decision-making).

[106] Greene, supra note 63, at 2013 (internal citations omitted).

[107]Melanie D. Wilson, The Return of Reasonableness:  Saving the Fourth Amendment From the Supreme Court, 59 Case W. Res. L. Rev. 1, 48-50 (2008) (arguing that, given their backgrounds, the Supreme Court Justices are unqualified to evaluate whether a reasonable ordinary citizen would feel free to leave during a police encounter).

[108] Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 Geo. L.J. 1567, 1578-80, 1597-98 (1989) (pointing out a possible higher success rate for jury-tried employment discrimination cases than bench-tried cases).

[109] Greene, supra note 63, at 2013.

[110] See, e.g., State v. Wanrow, 559 P.2d 548, 558 (Wash. 1977) (stating that the objective standard in self-defense implies that the standard by which to measure a woman’s actions should not be one that assumed an altercation between two men, but takes into account the physical limitations of the person asserting the defense); and Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (stating: “we believe a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women”).

[111] See, e.g., Ellison, 924 F.2d at 879; Wanrow, 559 P.2d at 559.

[112] Se,e e.g., Ellison, 924 F.2d at 879 (reasoning that “because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior,” in justifying the need for a modified reasonable woman standard in sexual harassment cases where the victim is a woman); Wanrow, 559 P.2d at 559 (holding that “[t]he [female defendant] was entitled to have the jury consider her actions in the light of her own perception of the situation, including those perceptions which were the product of our nation’s ‘long and unfortunate history of sex discrimination’”).

[113] Wanrow, 559 P.2d at 559 (quoting Frontiero, 411 U.S. 677, 684 (1764).

[114] See supra notes 62-67 and accompanying text for examples that exhibit this country’s history of racial policing.

[115] 536 U.S. 194 (2002).

[116] Id. at 200, 206.

[117] Florida v. Bostick, 501 U.S. 429, 437-38 (1991).

[118] Carbado, supra note 2, at 1002.

[119] United States v. Drayton, 536 U.S. 194, 212 (2002) (Souter, J., dissenting).

[120] Id.

[121] 490 F.3d 765 (9th Cir. 2007).

[122] Id. at 768.

[123] Id. at 776.

[124] Id. at 768.

[125] Lee, supra note 14, at 127-28.

[126] Id. at 128.

[127] Id.

[128] Shawver, supra note 44, at 1144.

[129] Cathryn Jo Rosen, The Excuse of Self-Defense: Correcting A Historical Accident on Behalf of Battered  Women Who Kill, 36 Am. U. L. Rev. 11, 34 (1986).

[130] Id. at 34.

[131] Id.

[132] Id.

[133] Shawver, supra note 44, at 1145.

[134] “The majority of women in this situation are unable to leave their batterer for a number of reasons, such as lack of financial resources, lack of any alternative place to go ‘due to the reluctance of friends, family, and police to get involved,’ or out of fear that the abuser could or has already threatened to kill her if she attempts to leave.”  Shawver, supra note 44, at 1147 (quoting Rosen, supra note 130, at 41 n.169).

[135] Rosen, supra note 129, at 41 n.169.

[136] Douglas A. Orr, Weiand v. State, and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar, 2 Fla. Coastal L.J. 125, 128 (2000).

[137] See Rosen, supra note 130, at 34.

[138] And in the case of a battered woman, even the reasonable woman standard is sometimes deemed insufficient to account for what is reasonable when a woman suffers from battered woman syndrome.  Id.

[139] Shawver, supra note 44, at 1166-67 (discussing how the standard self-defense theory does not “adequately address self-defense claims by battered women who kill their abusers” and, thus, produces harsh and unfair results for such defendants).

[140] Mane Hajdin, The Law of Sexual Harassment: A Critique 85 (Rosemont Publishing & Printing Corp. 2002).  See also Holly Maguigan, Battered Woman and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379 (1991) (arguing that the current un-gendered criminal standard can accommodate the self-defense claims of women who kill their abusers, but it is being misapplied by judges).

[141] Id. (internal citation omitted).

[142] Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991; see also Ely Chinoy, Society: An Introduction to Sociology 75 (Random House 1961). “Socialization” does two things: 1) “it prepares the individual for the roles he is to play [in society], providing him with the necessary repertoire of habits, beliefs, and values, the appropriate patterns of emotional response and the modes of perception, the requisite skills and knowledge”; and 2) “by communicating the contents of culture from one generation to the other, it provides for its persistence and continuity.” Id.; and see John A. Clausen, Socialization and Society 5 (Little Brown 1968) (describing socialization as a process “by which social and cultural continuity are attained”).

[143] Ellison, 924 F.2d at 879 (internal citations omitted).

[144] See e.g., supra notes 62-67.

[145] Ogle & Jacobs, supra note 12, at 153.

[146] Michael J. Frank, The Social Context Variable in Hostile Environment Litigation, 77 Notre Dame L. Rev. 437 (2002) (arguing that both common sense and “appropriate sensitivity to social context” are needed when applying reasonable woman standard in sexual harassment cases).

[147] Rosen, supra note 129, at 28-29.

[148] Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1136 (2008).

[149] Id.

[150] Id.

[151] Id.

[152] Id. at 1136-37.

[153] See O’Gorman, supra note 79, at 148-50.

[154] Robinson, supra note 148, at 1138.

[155] Id.

[156] See Steven Goldberg, Why Men Rule: A Theory of Male Dominance 66-67, 104 (Open Court Publishing Company 1993).  Goldberg argues that some gender characteristics, such as the predisposition of males to be more aggressive and to control leadership positions and power structures in every society about which we have information, are universally hard-wired into our genetic code.  Goldberg believes that this is so because men, as a result of biology and genetic inheritance, not socialization or learning, are predisposed to pursue status and dominance.

[157] D.J. Witherspoon et al., Genetic Similarities Within and Between Human Populations, 176(1) Genetics 351 (2007).  The biological aspect of race is described today not in observable physical features but rather in such genetic characteristics as blood groups and metabolic processes, and the groupings indicated by these factors seldom coincide very neatly with those put forward by earlier physical anthropologists.  Because of this and other issues – such as the fact that a person who is considered Black in one society might be non-Black in another – many cultural anthropologists are now in line with sociologists who consider race to be more a social construct than an objective biological fact.

[158] See, e.g., Robinson, supra note148, at 1136 ; see also J. Richard Udry, Biological limits of gender construction, 65 American Sociological Review 443, 444 (2000).  Udry suggests that both genetics and socialization experiences work together to produce observed gender differences in adults.  He argues that one root of adult gender differences may lie in the biology of sex, specifically, the extent to which fetuses are exposed to the male hormone testosterone.  Because of the pre-birth experience that exposes male fetuses to much higher levels of testosterone than females, males are more responsive to post-birth learning experiences that stress aggression and toughness.  Thus, the biology of sex may predispose males and females in very different ways and make them prone to differential socialization experiences.

[159] Many sociologists would assert that race is no more arbitrary than gender. That is, both gender and race have nothing to do with biology or genetics.  Peter Berger & Thomas Luckmann, The Social Construction of Reality, A Treatise in the Sociology of Knowledge 173 (Anchor Books 1966).  (The book asserts that differences based on race, class and gender are all social constructions, which exist only through society’s persistent legitimization.  Through persistent reciprocal interaction, society creates meaning, which becomes embedded and institutionalized into individuals and society.  Thus, a conception of what reality ‘is’ – regarding, for example, race, class, and gender – becomes embedded into the institutional fabric, and social reality is therefore said to be “socially constructed.”).  The argument remains, however, that race is a more toxic social construction, so long as many people, in their intuitive understandings, see gender as somehow more “natural” than race.

[160] Mia Carpiniello, Striking a Sincere Balance: A Reasonable Black Person Standard For “Location Plus Evasion” Terry Stops, 6 Mich. J. Race & L. 355, 383 (2001).

[161] Maclin, supra note 61, at 273.

[162] Roslyn Myers, Truth and Reconciliation Commissions 101: What TRCs Can Teach The United States Justice System About Justice, 78 Rev. Jur. U.P.R. 95, 97 (2009). citing The Winston Dictionary 534, 634 (Encyclopedic ed. 1945).  “‘Justice’ stems from the Latin justus, meaning ‘right.’ The root jus translates to ‘law’.”  Id. at 97 n.4.  “‘Morality’ stems from the Latin ‘moralis’, which means what is ‘just’ and ‘right’ as filtered through what is ‘customary.’”  Id. at 97 n.5.

[163] Id. at 97.

[164] Id.

[165] Id.

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