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Concerning a Strict Liability Interpretation of Racism or

Unveiling the Invisible Hand of Racism

It is extremely rare for a White American to admit that he or she is racist. Yet, we
live in the United States of America. This land was to be post-racial after the election of
its first black President in 2008. Personally, I am not sure if anyone truly believed that a
post-racial America was possible or is possible anytime in the near future. Since many
Americans view racism as overt forms of bigotry and hatred, ignoring the subtler, covert
forms that permeate American society. But a recent poll showed that a majority of Whites
believe they are the primary victims of racial discrimination in modern America.1 This
essay is not an attempt to understand the results of that poll.2 Its goals are humbler. It is a
plea for Americans to wake up to the realization that we all have prejudices and biases,
and to understand that racism is not just Bull Conner and the Ku Klux Klan. It is a public
plea for Americans to call racism out whenever one sees it. To assist in this goal, I have
articulated a definition of racism based on strict products liability to make it easier to
recognize racism, and at the same time more difficult to deny. In Part I of this essay, I will
discuss strict liability, its history and purposes, focusing on strict products liability. Then,
in Part II, I will lay out my formulation for the Strict Liability Definition of Racism, as
well as how its use may possibly assist in combating systematic racism.
I.
Strict Liability
Strict liability is a term that finds it use in both criminal and civil law. For the
purposes of this essay, I am focusing on strict liability in civil law, specifically the law of
torts. Most law schools teach the law of torts in distinct parcels, starting with Negligence,
next Intentional torts, before studying the law of Strict and Absolute Liability. Some
schools may change the order in which the topics are presented by opening the course
1 Michael L. Norton & Samuel R. Sommers, Whites See Racism as a Zero-Sum Game That They Are Now
Losing, 6 PERSPECTIVES ON PSYCHOLOGICAL SCIENCE 215 (2011).
2 A much more in-depth discussion would be needed, perhaps an entire volume on the subject, in order to
understand why White Americans have this belief.

with Intentional torts, but all will delegate Strict Liability for later in the semester. This
lends to a lessening of strict liabilities importance in tort law in the minds of law students.
a. The Beginnings of Strict Liability
Contrary to common notions as well as the order the law of torts is presented in
American law schools, the the foundation of tort law is absolute liability.3 A civil suit
for damages existed long before a system of establishing fault was established.4 As long
as a plaintiff could show that the defendant was the cause in fact5 of the plaintiffs
injury or harm, the defendant was absolutely liable; negligence was not even an issue.6 A
careful review of the history of the common law of torts by Professor Malone reveals that
up until 1800, liability was absolute.7 It was not until the case of Brown v. Kendall8 in
1850 that negligence liability began to take its firm hold on that law of torts.9 For the next
fifty years, negligence law, which consists of four distinct elements in a cause of action,
was the status quo for civil suits. In order to recover damages from a defendant, a
plaintiff must prove each of the following: (i) dutydefendant owed a duty of care to the
plaintiff; (ii) breachdefendant breached that duty of care; (iii) injurythe plaintiffs
injury was proximately caused by the breach; and (iv) damagesmonetary or equitable.
Often this burden is too high for a plaintiff to meet and the defendant is not held
accountable for his or her actions. But now, more and more plaintiffs are using strict
3 FRANK J. VANDALL, STRICT LIABILITY: LEGAL AND ECONOMIC ANALYSIS , 1 (1989) [hereinafter STRICT
LIABILITY].
4 Wex S. Malone, Ruminations on the Law of Faults in the History of the Common Law of Torts, 31 La. L.
Rev. 1 (1970).
5 Cause in fact Also called but-for causation. Defendant was the proximate cause of plaintiffs injury.
Plaintiffs injury would not have happened but-for the defendants conduct. See DAVID K. DEWOLF, THE
LAW OF TORTS: CASES AND MATERIALS 63 (2004).
6 See STRICT LIABILITY supra note 1, at 1.
7 Malone supra note 2, at 24.
8 60 Mass. 292 (1850).
9 STRICT LIABILITY supra note 1, at 4-5.

liability as a means of recovery.10 There is substantial growth in the areas of products


liability, abnormally dangerous activities and animals, wild animals, vicarious liability,
res ipsa loquitur, negligence per se, implied warranty,11 and respondeat superior,12 which
has even been extended to an employees intentional torts.13 For the purposes of this
essay, however, my focus will be on products liability.
b. Strict Products Liability Today
Strict liability is often referred to as liability without fault, yet this phrasing
almost implies that the responsible party is not at fault for causing the harm, which is not
correct. Liability without showing fault or liability without proving fault is a more apt
description. Even this oft referred to reference to strict liability brings with it frustration,
so it is unsurprising that Justice Traynor would have frustrations with the way negligence
law was being used in the early 20th century.
Justice Traynor articulated his frustrations with the unjust results that the
negligence liability standard was causing in his concurring opinion in Escola v. CocaCola Bottling Co. of Fresno.14 In Escola, a soda bottle exploded in the hands of an
unwitting waitress while she was placing sodas in a refrigerator, inflicting a deep fiveinch cut and other injuries.15 Justice Traynor jettisoned the majoritys reliance on the
manufacturers negligence and instead opted for absolute liability as a means for recovery
in products liability cases.16 His reasoning for doing so found its basis in public policy:
10 Id. at 7.
11 Id. at 7-8.
12 Restatement (Third) of Torts: Phys. & Emot. Harm 4 Scope Note (2010)
13 See Michael J. Sartor, Respondeat Superior, Intentional Torts, and Clergy Sexual Misconduct: The
Implications of Fearing v. Bucher, 62 WASH. & LEE L. REV. 687, 704 (2005)(discussing how courts have
taken it upon themselves to draw the line for intentional torts that are within the scope of employment).
14 24 Cal.2d 453 (Cal. 1944).
15 Id. at 456.
16 Id. at 462. (Traynor, J., concurring).

Even if there is no negligence [by a manufacturer] public policy demands that


responsibility be fixed wherever it will most effectively reduce the hazards to life
and health inherent in defective products that reach the market.17
Justice Traynors omnificent concurring opinion remained only such for almost
two decades, until the California Supreme Court adopted its reasoning into its majority
opinion in Greenman v. Yuba Power Products Inc.18 There, the court held:
The purpose of such liability is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on the
market rather than by the injured persons who are powerless to protect
themselves.19
California was the first state in the modern era to recognize that public policy
obliges courts to remove the barriers to recovery and place responsibility for a defective
product and the damage caused where it lies, at the feet of the ones who caused itthe
manufacturer.20 In products liability cases today, the manufacturer assumes the risk when
manufacturing a product and placing it into the stream of commence and it stays with the
manufacturer unless a user does something to the product like altering or changing it.21
In these cases, the courts emphasize policy reasons such as: loss shiftingthe seller is in
a much better position to swallow the damages than the consumer; safetyin order to
protect human life and health the seller is held strictly liable on the theory that she will
exercise a higher degree of care; availability of insurancethe seller can absorbed a law

17 Id (emphasis added).
18 STRICT LIABILITY supra note 1, at 8 citing 59 Cal. 2d 57 (1963).
19 Id. citing Greenman, at 63 (emphasis added).
20 Jimenez v. Superior Court, 29 Cal. 4th 473, 477 (2002). In [Greenman] California became the first
state to allow recovery for strict products liability.
21 Guido Calabresi, Product Liability: Curse or Bulwark of Free Enterprise, 27 CLEV. ST. L. REV. 313,
319 (1978).

suit as a cost of doing business; ease of prevention for consumer recovery,22 and abstract
justice.23
Today, jurisdictions in America more or less follow the same rule: A
manufacturer is strictly liable in tort when an article he places on the market, knowing
that it is to be used without inspection for defects, proves to have a defect that causes
injury to a human being.24 Strict products liability has grown substantially from the
negligence dominated tort arena of the early 1900s; it now encompasses a much larger
class of both plaintiffs and defendants.25 Donees, third parties, and bystanders all may
now sue retailers, wholesalers, and component-part suppliers.26 Strict products liability
has been applied to almost all products on the market today.27 In essence, courts realized
that consumers needed added protection and a means of recovery when harmed, so they
held manufactures strictly liable for the harms caused by their products.
II.

Unveiling the Invisible Hand of Racism in America


Adam Smith, the 18th century economist, is often credited with coining the term

the invisible hand, referencing the natural phenomenon that guides economic markets
in free markets through competition for scarce resources.28 Free markets are argued to

22 STRICT LIABILITY supra note 1, at 9-25.


23 Siegler v. Kuhlman, 81 Wash. 2d. 448 (1973). The rule of strict liability rests not only upon the
ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract
justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible[.]
Id. at 455 emphasis added.
24 Greenman, at 62.
25 STRICT LIABILITY supra note 1, at 9-10.
26 Id.
27 William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 MINN. L. REV. 802,
806 (1966). There is virtually no indication of any limitation to things that are extremely or inherently
dangerous in themselves, in spite of all precautions.
28 Gavin Kennedy, Adam Smith and the Invisible Hand: From Metaphor to Myth, 6 ECON J. WATCH 239
(2009).

lead to efficient outcomes, as if lead by an invisible hand.29 Individuals seeking their


own individual goals collectively produce a fair market with correct prices. Although, not
explicitly referencing Adam Smith, David T. Courtwright, in Dark Paradise, claims, It
would be wrong, therefore, to describe American narcotic policy as a function of the
changing addict population 30which went from a white middle-age housewife to a
person of color. Courtwright describes the sequence of events, which involved diplomatic
motives, pressures from special-interest lobbies, constitutional problems, the ulterior
political motives of certain individuals leading up to Americas narcotics laws, as
extremely complex.31 This extremely complex sequence of events that led to the
mass incarceration of millions of blacks in this country, I would like to describe as the
invisible hand of racism. Like the individuals in an economic market, acting
independently in their own self-interest, collectively producing a fair market, individuals
in America, acting in their own self-interest, independently, and at times collectively,
have managed to create a society that is full of institutional, systematic, racial
discrimination and biases.32 One where Whites can speak for the human race, and any
other ethnicity can only speak of their own race. One where White is the us and any
one else is them.33 One where Black is criminal34 and implicit racial biases can

29 Id. at 240 citing, Joseph E. Stiglitz, Information and Change in the Paradigm of Economics.
AMERICANECON. REVIEW 92(3): 460 (2002).

30 David T. Courtwright, DARK PARADISE: A HISTORY OF OPIATE ADDICTION IN AMERICA 4 (2001).


31 Id.
32 MICHELE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS
(2012).
33 THOMAS SZASZ, CEREMONIAL CHEMISTRY: THE RITUAL PERSECUTION OF DRUGS, ADDICTS, AND
PUSHERS 3-57 (1974)(describing how White Americans historically use drugs and drug users as scapegoats
starting with opium and the Chinese before moving on to African Americans).
34 Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality or Why the War on Drugs was a
War on Blacks 6 J. GENDER RACE & JUST. 381 (2002).

ultimately lead to death.35 One where millions of Black Lives are valued less than a
single White persons hurt feeling.36 In order to expose this hidden hand of racism,
Americans need a better way to talk about a person or persons actions as racist. Thus, I
propose the incorporation of strict liability into a definition of racism or racist acts.
a. Strict Liability: As Applied to Racism
As a basic definition of racism, I will use a version based on the Oxford Standard
Dictionary37:
RACISM: Prejudice, discrimination, or antagonism directed against someone of a
different race because of that persons race.
Some scholars posit that racism by definition is the definition that I suggested with the
additional element of power.38 The only issue I have with that definition is that it only
allows one group to be labeled as racist. Whites, the ones with power in America. And
as Derrick Bell would argue, Whites will only adopt the Strict Liability Definition of
Racism when it is in their interest as well.39 Therefore, if I use a definition that only
allows Whites to be racist, my theory will never take off. I am not as cynical as Bell, and
I see my definition of racism as not being diametrically opposed to the interest of Whites.
Thus, it has a better chance of being adopted by the majority and applied in American
culture. The Strict Liability Definition of Racism is as follows:

35 Justin D. Levinson, et. al., Devaluing Death: An Empirical Study of Implicit Racial Bias on JuryEligible Citizens in Six Death Penalty States 89 N.Y.U. L. REV. 513 (2014) (finding that death-qualified
jurors harbored stronger implicit and explicit racial biases than excluded jurors).
36 John Metta, I, Racist, THE HUFFINGTON POST (July 10, 2015), http://www.huffingtonpost.com/johnmetta/i-racist_b_7770652.html.
37 Oxford Dictionaries. Racism: Prejudice, discrimination, or antagonism directed against someone of a
different race based on the belief that ones own race is superior, at
http://www.oxforddictionaries.com/us/definition/american_english/racism.
38 Kieth Lawrence & Terry Keleher, Chronic Disparity: Strong and Pervasive Evidence of Racial
Inequalities 5. Race and Public Policy Conference (2004). Racism is race prejudice plus power.
39 Derrick A. Bell, Jr., Comment, Brown v, Board of Education and the Interest-Convergence Dilemma, 93
HARV. LAW REV. 518 (1979).

An action or a policy is strictly racist if said action or policy proves to


prejudice, discriminate, or antagonize a person or group of persons because of that
person or group or persons race, irrespective of intent.
If the Strict Liability Definition of Racisms adoption becomes widespread, people can no
longer point to the Emanuel African Methodist Episcopal Church shooting as an example
of how they are, or what they did is, not racist. Because one would only need to establish
cause in fact between the individual and the action, in order to label it as racist. But
for the action, the unjust, prejudicial or discriminatory result would not have occurred. I
am not very concerned with the Strict Liability definition of racism lessening the effect of
calling something egregious like the Emanuel Church shooting from above as racist
because nothing can lessen the visceral feeling one gets when referencing the Holocaust,
Slavery, or apartheid South Africa as racist. Certain events in history are so egregious,
so full of raw emotion; they are not capable of being semantically diminished.
Now when a politician proposes a law that sentences a drug offender to one hundred
times the punishment for possessing a substance that is chemically the same substance
that another offender possessed, and the only difference is the race of the typical users,
that politician can not point to the Holocaust, and claim, My policy is not racist! It is not
like the policies of the Germans during world war two. Now, that is racist When a
presidential candidate gets on stage and announces, Mexicans are rapist. He can no
longer point to Slavery and claim that his statement is not racist, or pretend the statement
meant nothing racial. When a Supreme Court Justice claims that maybe the University of
Texas should have fewer Blacks because they need to be at slower paced schools, he will
have no claim that the statement was not racist. If the strict liability standard for racism is
adopted, perhaps, American society will see less of it.

A qualification of the strictly racist definition of racism may be in order. I do


not pretend to know where the line is for the number of racist statement, acts or actions
one can have before he or she is labeled racist. If one is found guilty of murder one time,
that person is now labeled as a murder. If one is has an affair with another person, is that
person now a cheater? If not, than how many times does this need to happen before he
or she receives the label? If at person was racist in the past, is that person still racist
today? The answers to these questions are rightly answered in the same manner all
questions of this type are answered.
b. Purpose of the Strict Liability Definition of Racism
The reasoning that lead to strict liability in tort law is the same reasoning for
applying strict liability to racism. Negligence law lead to unjust results because
manufacturers were able to hide behind the complexities of establishing causation.
Similarly, racist people are able to hide behind mistakes or thats not what I meant to
mask their racist intentions because it is difficult to prove. It was in the name of social
justice to apply strict liability to a can of soda that exploded, likewise, it is in the name of
social justice to apply strict liability to racism when we see a White family moving out of
a neighborhood because a family of color recently moved in. It was in the public interest
for manufactures to make safe products. The same public interest that helps to ensure that
your cereal does not have lost screws from a factory in it needs to be applied to people in
American society that say and/or do racist things. It is not only good for the people who
may have gotten a screw in their cereal; it is good for us all.
I am not proposing for the strict liability definition of racism use in civil or
criminal court; I am not proposing it in any legal way. I am proposing that we as a society

stop hiding behind the facade of policies and politicians as our shields that mask us from
the racism we manifest on a regular basis. Systematic racism does not happen
spontaneously; it is a process that is laid out piece by piece until completion. It started
when we first landed on this piece of land we called America, and continues today.
It occurs when a grandmother does not want to rent her spare house to a person
of color because she is afraid of those people because she has seen a disproportionate
amount of news stories of those people committing crimes, which she sees because she
lives in the era of 24 hour news cycles, which needs to keep its ratings high because the
network is accountable to share holders who need a return on their investment, and crime
sells.
It occurs because even though all races statistically use drugs more or less at the
same rate, it is easier for the police to arrest someone in the inner city where drug
transactions are more open rather than in the suburbs or on college campuses because the
police department receives its funding from the government based on arrest statistics,
which was implemented because politicians want to satisfy their constituents who are the
same people watching the news.
It occurs because the employer looking over job applications decides that John
Smith with a criminal conviction sounds like a good worker rather than Jamal Smith who
does not have any conviction because he wants to give John a second chance, and Jamal
sounds like those people he has seen on the news.
I am proposing that we look at our grandmother and question her for not renting
her rental to the person of color. I am proposing that police officers tell their sergeant they
are not going to disproportionally patrol certain neighborhoods. I am proposing we

question our employer when the new hire, John Smith, shows up to work. And if, in any
situation, we find someone being racist by my definition, we directly question him or her,
and if it turns out that the person we are questioning is strictly racist; we call them
Racist.
Conclusion
Reputation is powerful, it is even allowed as character evidence by the federal
rules of evidence.40 If people are no longer allowed to use horrendous acts of racism as a
buffer for their own asinine actions or statements without their reputations being severely
damaged, hopefully people who say or do these things will be less likely to do or say
them. Reputation affects all of American society; it is how many things in American
society work. It is how we make friends; it is how we get jobs; it is how business works;
it is how we interact with the world. Being called Racist is one of the worse things you
can call a white person in America.41 It is time to unveil the invisible hand of racism and
call a spade a spade.42

40 Federal Rules of Evidence Rule 405. Methods of Proving Character (a) By Reputation or Opinion.
41 Abby Norman, So, Somebody Called You Racist: Tips from a Formerly Ignorant White Girl (Nov. 25
2015), http://www.huffingtonpost.com/abby-norman2/so-somebody-called-you-racist-tips-from-a-formerlyignorant-white-girl_b_8642994.html
42 I am using this phrase as a way of saying, to tell it like it is. It has come to my attention recently that
this phrase may have racial overtones. See, Lakshmi Gandhi, Is It Racist To 'Call A Spade A Spade'? NPR
Code Switch: Frontiers of Race, Culture and Ethnicity (Sept. 23, 2013)
http://www.npr.org/sections/codeswitch/2013/09/19/224183763/is-it-racist-to-call-a-spade-a-spade

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