Image of Man Signing Document

Image of Man Signing Document

12 Wake Forest L. Rev. Online 66

Craig S. Lerner[1]

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.


On August 30, 2020, Virginia Governor Ralph Northam issued what was touted, in an accompanying press release, as “Posthumous Pardons for the ‘Martinsville Seven’ 70 Years After Unjust Executions.”[2] The document is, however, more ambiguous in what it purports directly to do, and it is even more puzzling in its broader ambitions. The governor’s pardon is, in this regard, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law.

Executive clemency for the dead is not unknown in American history, but it is rare. The Department of Justice’s official policy is that it will not even consider applications for posthumous pardons.[3] In 1997, President Clinton issued the first Presidential posthumous pardon—to a black West Point graduate who was convicted of fraud.[4] President George W. Bush issued another to a Florida businessman convicted of smuggling bombers to the fledgling state of Israel.[5] After a lull of over a decade, President Trump issued four posthumous pardons: to Susan B. Anthony, boxer Jack Johnson, and two lesser known persons.[6]

Governors and state clemency boards have been more liberal with posthumous pardons, but for much of American history they were still extraordinary occurrences. In 1893, Illinois Governor Peter Altgeld issued the first such pardon in our nation’s history; the recipients were three of the labor activists convicted of setting off a bomb in Haymarket Square.[7] Over the ensuing decades, posthumous pardons became more common, with some of the most high-profile being those issued to Leo Frank in 1986,[8] John Snowden in 2001,[9] Lenny Bruce in 2003,[10] Timothy Cole in 2010,[11] John Gordon in 2011,[12] Thomas and Meeks Griffin in 2009,[13] and the “Scottsboro Boys” in 2013.[14] In just the past three years, Florida Governor Ron DeSantis pardoned the “Groveland Four” (black men convicted of raping a white woman in 1949),[15] California Governor Gavin Newsom pardoned civil rights activist Bayard Rustin (convicted of a misdemeanor vagrancy violation in 1953),[16] and Louisiana Governor John Bel Edwards pardoned Homer Plessy (the defendant in the famous case, Plessy v. Ferguson).[17]

Besides Governor Northam’s pardon of the “Martinsville Seven,” the issue was thrust most prominently into the national spotlight in October 2021, when the Texas Board of Pardons and Paroles (the “Board”) recommended a posthumous pardon of George Floyd, in connection with his 2004 drug conviction.[18] Under state law, the pardon could not take effect without the governor’s signature; and for months, Governor Greg Abbott declined to do so.[19] His silent rebuke to the Board began to generate controversy, until the Board withdrew the application in December 2021.[20] The grounds for the withdrawal were shrouded in mystery, and the Board left open the possibility of renewing its application this year.[21]

Now is an apt moment, then, to reflect upon the mounting interest in posthumous pardons. In an Atlantic essay last year, “Justice for the Dead,” the author endorsed posthumous pardons for their ability to “repudiat[e] miscarriages of justice, especially those with racial overtones . . . . At their best, they have the potential to restore faith in a judicial system in which many people have lost confidence, and to further the work of building a more just, more tolerant, and more equitable society.”[22] The project was provided academic support in a recent article in the Columbia Law Review.[23] In “The Constitution After Death,” Professor Fred Smith argued that the dead should be conceived as “legally cognizable beings of memory,” and he specifically references the value of posthumous pardons in “protect[ing] the reputational interests of the dead.”[24]

Professor Smith begins his article by drawing upon Sophocles for the proposition that “[i]t is the dead/Not the living, who make the longest demands.”[25] It is an engaging opening; nonetheless, this Article operates on the optimistic hypothesis that Greek tragedy is not a useful guidepost when determining the contours of our law. More specifically, this Article aims to treat the broader issue of posthumous pardons through a close examination of two case studies: the Martinsville Seven and George Floyd. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered.

I. The Martinsville Seven

The Martinsville Seven attracted considerable publicity at the time of the crime,[26] but rapidly vanished from Virginia’s and the nation’s consciousness. Not a single law review article mentioned the case until 1996,[27] which was prompted by the publication of a book devoted to the case.[28] It is only in the past few years that the memory resurfaced, culminating in a pardon that Governor Northam announced with much fanfare, but which his successor apparently thought of so little consequence that the official government link to the document was subsequently broken.[29]

A. The Crime and Investigation

Reconstructing a crime in its immediate aftermath can be a perilous undertaking; doing so at a temporal distance of seventy years defies confident judgments. The following reconstruction of events tries to disentangle the facts known beyond peradventure with surmises of less certain probability.[30]

To begin with the certainties: On the afternoon of January 8, 1949, Ruby Stroud Floyd, a white thirty-two year old woman, walked into the predominantly black area of Martinsville, Virginia, seeking the house of a woman who owed her six dollars.[31] Several men accosted her as she asked for directions.[32] Around 7:30 that night, she knocked on the door of Mary Wade and announced that she had been raped by thirteen men.[33] According to Wade, she appeared frantic, had scratches on her arms, and her thighs were “red-rubbed.”[34] Around 8:15 p.m., Martinsville police arrived at Wade’s house and Floyd repeated her story.[35] That night, doctors examined her and found scratches on her knees, inner thighs, and buttocks, a large amount of twigs and dirt in her pubic hair, and “active, motile sperm” in vaginal smears.[36] The doctors did not discover any vaginal trauma at that time, however, and Floyd declined their recommendation to spend the night in the hospital.[37] The following morning, she checked herself into the hospital, where she spent much of the next few weeks; she was eventually diagnosed with an “‘inflammatory mass’ on the left side of her pelvis near the uterus caused by a rupture of thin-walled blood vessels.”[38]

The search for the offenders began immediately, on the evening of January 8, and concluded, except for one defendant, by dawn the following morning.[39] Police interviewed several witnesses and promptly picked up two men (Booker T. Millner and Frank Hairston, Jr.) suspected of participating in the crime.[40] Initial denials of involvement evolved within hours to signed confessions.[41] Four more men (John Clabon Taylor, James Luther Hairston, Howard Lee Hairston, and Francis DeSales Grayson) were picked up in the early hours of the morning.[42] The final confession, by Grayson, is noteworthy, as his case has figured prominently in the recent reconsideration of the case.[43] Unlike the other defendants, who were young men, Grayson was married, a U.S. Army veteran, and in his late thirties.[44] He was employed and had never been convicted of any crime.[45] According to the police report, after denying knowledge of the crime, a police detective told him that “some of the boys have told us their part in the case.”[46] After several minutes of silence, police records state that he said: “I’ll tell you the truth about it.”[47] He recounted a tale that coalesced, in almost all material respects, with what the other defendants had reportedly said: Four men (Joe Henry Hampton, Howard Hairston, Jr., Millner, and Frank Hairston) participated in an initial assault of Floyd.[48] When she tried to crawl away, three men joined the fray (Taylor, James Luther Hairston, and Grayson) and participated in a second phase of the sexual assault.[49] Hampton turned himself in on January 10.[50] Although he had had no contact with the other six over the prior forty-eight hours, he told a story that largely corroborated their collective account.[51]

The stories the seven men told included some mitigating and possibly even exonerating details. A few of the men suggested that Floyd consented,[52] which, if true, would have been a complete defense; but this seems, with full allowance for the uncertainty created by temporal distance, to be sufficiently incredible to be discounted. Some men, particularly in the first assault, pointed to their intoxication.[53] This was almost certainly true but would pose no barrier to a rape conviction then or now.[54] Finally, some men suggested that they were unable to penetrate Floyd.[55] This might be a defense to rape, but not to attempted rape, and a rape conviction would even be possible without penetration on a theory of accomplice liability.[56]

It should be emphasized that the confessions were secured through police practices that did not remotely conform to contemporary standards. None of the defendants were Mirandized, nor were any provided a lawyer until January 22.[57] That said, there is little indication that the pressure brought to bear on the suspects violated due process. The first six confessions were given in the middle of the night, with police engaging in miscellaneous “Inbau & Reid” techniques (good cop, bad cop; the cat is out of the bag; the train is leaving the station, etc.) that have been criticized but almost never result in a court holding a confession inadmissible.[58]

Legitimate questions were raised at trial, discussed below, about the reliability of the confessions.[59] Furthermore, there are also many indications that the crime triggered extraordinary passions.[60] The local jailor stated that had a lynch mob demanded the seven defendants, he would have acquiesced.[61] It is also striking that the Martinsville police chief thought it necessary to scatter the defendants to distant jails: only thus, he stated, was the risk of mob violence averted.[62]

What can we say happened on January 8, 1954? That Floyd was the victim of a sexual assault is incontestable, but by whom? It is possible that some of the defendants were not involved at all, or to the extent that they allegedly confessed, but complete confidence is not possible one way or the other. As already suggested, uncertainty about past crimes is entirely expected—a function of temporal distance. It would be the unusual case in which complete confidence about distant events is possible. The infamous Scottsboro Boys case provides a useful contrast. There, the putative victims of a sexual assault, when examined by a doctor, exhibited no injuries, nor was there even any evidence of recent sexual intercourse.[63] In the case of the Martinsville Seven, at a distance of over seventy years, we are inevitably in doubt about sundry crucial issues. Ordinarily, we would simply defer, absent compelling evidence, to the legal system’s contemporaneous judgment. This brings us to the fairness of the trials in this case.

B. The Trials

The Martinsville Seven trials can be viewed from two perspectives. When considered in the context of other criminal trials of black defendants in the pre-modern era, one understands the self-congratulatory tone taken by several Virginia public officials.[64] Indeed, compared with the trials in the Scottsboro case—an admittedly very low bar—the Martinsville Seven trials come to light as exquisitely fair.

First, each of the defendants had his own lawyer; and for some defendants, including Grayson, those lawyers were among the most skilled in the county.[65] The contrast with the Scottsboro case could not be more pronounced.[66] In addition, the judge severed the case into seven trials, thus taking steps to minimize cross-contaminating evidence.[67] The judge also cautioned the lawyers to avoid raising any racially divisive arguments, and the prosecutors apparently complied.[68] Defense lawyers filed a motion to change the venue, as a concession to the notoriety of the crime; and the judge held a hearing in which twenty-five witnesses appeared, including prominent local black citizens, several of whom testified that a fair trial was possible in Henry County.[69] The judge’s denial of the motion was not clearly wrong, even under contemporary standards.[70]

Several prosecution witnesses testified at the trial, including local individuals, police officers, medical examiners, and Floyd herself.[71] As already discussed, the evidence was not irrefutable, but it was incomparably more compelling than the flimsy evidence that produced convictions in other high-profile cases involving black defendants.[72] The defense lawyers conducted several effective cross-examinations, including of the victim herself.[73] And with respect to the police officers, defense lawyers drew attention to discrepancies and inaccuracies.[74] The defendants all took the stand in their own defense, and each repudiated his confession in some respect.[75] Finally, character witnesses took the stand for many of the defendants.[76] One would be hard-pressed to fault the defense lawyers for ineffective assistance of counsel—again, in stark contrast with the Scottsboro case.[77]

Yet if we view the Martinsville Seven trial from the perspective of 2022, the variations with modern practice are glaring. We should, however, distinguish between the respects in which those distinctions reflect legitimate differences in priorities and those differences that undermine confidence in the verdict. The brevity of the trial belongs in the former category. In the latter category, however, belong the composition of the jury and the sentence imposed. The jury pools in each case included between two and four blacks.[78] Again and again, some were excused by the judge for cause, and the remaining were peremptorily challenged by the prosecutor.[79] The result: seven all-white juries.[80] Undoubtedly, those challenges would not survive scrutiny under the modern understanding of a right to an impartial jury.[81] There is, furthermore, the sentence imposed. Rape was punishable in 1949 from five years to life in prison, or by death.[82] Of course, under the contemporary understanding of the Eighth Amendment, capital punishment is foreclosed for any crime other than homicide and possibly treason.[83] But it is anachronistic to impose our “standards of decency” in judging the constitutionality of capital punishment when imposed in prior eras.[84]

The problem is not that the jury and judge imposed a sentence that was, at law, possible. The problem is that the sentence was exclusively reserved for convicted black rapists—a fact that was brought to the attention of then Virginia Governor John S. Battle when he was considering a clemency petition.[85] White rapists, especially when the victim was black, often received lenient sentences.[86] Consider the case of Carl Burleson and Leonard Davis, two white police officers convicted of raping a black woman in Richmond in 1947.[87] Convicted of rape, they were each sentenced to seven years in prison.[88] Notwithstanding contemporaneous claims that race played no role in the trial, the sentence imposed by the jury on the Martinsville Seven fuels suspicion that the effectual truth is that race most certainly did.

The lingering question is whether any respect is owed the jury verdict and sentence. Does the composition of the jury and the sentence it imposed command us not simply to question, as an academic matter, the accuracy of the verdict but also to repudiate, as a formal legal matter, the judicial system that promulgated it?

C. The Pardon

Governor Northam answered that question with a resounding “maybe” in an eleven-paragraph pardon. The analysis below is quite critical of that pardon; the principal objections arise from defects in the reasoning and the overall sloppiness. That sloppiness is immediately apparent. After the first paragraph correctly recites the names of the seven defendants, the second paragraph jumbles the names of three defendants.[89] Even more disconcertingly, starting in paragraph three, the pardon focuses almost exclusively on one defendant: DeSales Grayson.[90] Although the names of the others are recited in paragraph seven, the legally dispositive paragraphs—in which the governor actually extends a pardon—mention only Grayson.[91] This is baffling insofar as the press release that accompanied the pardon refers to all seven.[92]

Key links in the chain of reasoning that culminates in that pardon are clumsily presented. The third paragraph pronounces that “race played an undeniable role during the identification, conviction, and the sentencing of Francis DeSales Grayson and the six other men.”[93] As already discussed, race almost certainly played a role in the death sentence imposed, but can one as confidently say that it played a role in the conviction and identification? Perhaps one can infer from the racial bias reflected in the sentence that racial bias was also evident in the finding of guilt—that is, that jurors’ prejudices played a role in their weighing of the evidence. It is unclear, moreover, what is intended by the pardon’s claim that race played a role in the identification of the defendants.[94] To be sure, the white victim identified her attackers as black men, and the defendants are black men: Is the pardon’s implication that Ruby Stroud Floyd falsely identified the defendants because of mistaken cross-racial bias? Is there any support for this claim? This is a grave source of error in the criminal justice system, and one that psychological studies have confirmed, and that the legal system should address;[95] however, the historical record is devoid of evidence that Floyd’s identification of her attackers was contaminated by cross-racial bias. The curiously allusive phrasing in the third paragraph points to a glaring absence in the pardon: none of the defendants are ever said to be innocent of the rape of Ruby Stroud Floyd.[96]

In the absence of such a finding, the pardon’s fourth through sixth paragraphs retreat to procedural questions and legal formalisms.[97] As the pardon observes, the voir dire process, which culminated in all-white juries, violated the Sixth Amendment requirement of an “impartial jury,” at least as that phrase has been understood since 1985.[98] The same objection can be raised, however, to the vast majority of convicted black defendants through the modern era: Are they all entitled to pardons?

The fifth paragraph further raises the question of the appropriateness, at least for purposes of extending pardons, of deploying contemporary constitutional standards when evaluating past criminal convictions.[99] The pardon observes that “capital punishment for crimes such as rape” violates a number of post-1972 Supreme Court cases.[100] But the Eighth Amendment prohibition on cruel and unusual punishments has been held to reflect “evolving standards of decency.”[101] Implicit is the acknowledgment that those standards could evolve, and that a punishment that was consistent with standards in 1949 and constitutional at that time might be inconsistent with those standards in 2022 and unconstitutional today.[102] Given the rarity of states imposing capital punishment for nonhomicide offenses today, its imposition for rape can be said to violate the Eighth Amendment in 2022, but no such confidence is possible in 1949, when roughly half of the states reserved the possibility of death sentences for rape.[103]

Later paragraphs of the pardon trail off into rhetoric that does little to justify the extension of a pardon to Grayson or the other defendants.[104] The pardon observes that “discriminatory Jim Crow laws” disfigured Virginia’s legal system for decades, which is indisputably true, but its connection to the innocence of the Martinsville Seven is opaque.[105] The pardon also observes that the seven defendants can no longer “share their truth.”[106] This formulation, whatever its merits in contemporary discourse,[107] is woefully out of place here.

Indeed, at the risk of sounding flippant, one is inclined to ask: Did anyone run the pardon past legal before it was issued? As already noted, the bizarre conclusion focuses exclusively on one of the Martinsville Seven:

Now, Therefore, I, Ralph S. Northam, Governor of the Commonwealth of Virginia, by virtue of the authority vested in me, posthumously grant Francis DeSales Grayson a Simple Pardon.[108]

But what about the other six defendants: Was their outcome not also unjust? And note that the pardon is a Simple Pardon, and not an Absolute Pardon.[109] The latter is reserved for those whom the governor is convinced are actually innocent.[110] Are we to infer from the form of the pardon that the governor doubts that the Martinsville Seven were actually innocent? If so, what was the point of insinuating skepticism about Ruby Stroud Floyd’s identification of her assailants?

II. Lessons from the Almost-Pardon of George Floyd

The death of George Floyd on May 25, 2020, in Minneapolis, convulsed the nation.[111] In the buildup to Officer Derek Chauvin’s murder trial, Floyd’s life came under intense scrutiny.[112] There were reports that, between 1997 and 2007, Floyd had been arrested nine times and served multiple jail terms.[113] One of those convictions, in 2004, was for the sale of a rock of crack cocaine.[114] The testimony of the arresting officer, Gerald Goines, was the only incriminating evidence.[115] Although Floyd denied the accusation, he agreed to a plea bargain, his attorney later claimed, because he faced twenty-five years in prison.[116] After serving a ten-month sentence, he was released and then committed an armed home invasion for which he was sentenced to five years in prison.[117]

Floyd’s 2004 conviction was among several hundred that were revisited years later, in the wake of revelations of police misconduct.[118] Specifically, Goines, the same officer who had arrested Floyd in 2004, participated in a drug raid in 2019 that resulted in the death of two of the house’s occupants.[119] It subsequently came to light that Goines had perjured himself in the warrant application.[120] Harris County District Attorney Kim Ogg ordered her office to review hundreds of cases that had been brought based on Officer Goines’s testimony.[121] With the District Attorney’s acquiescence, at least two convicted defendants succeeded in having their convictions overturned through judicial decree.[122]

In April 2021, Allison Mathis, the public defender who had represented Floyd in the 2004 charge, submitted a pardon application on behalf of Floyd.[123] Days later, District Attorney Ogg filed a letter expressing support.[124] And in October 2021, the Texas Board of Pardons and Paroles (the “Board”) unanimously recommended that Floyd receive a posthumous pardon.[125] The pardon sat on Governor Abbott’s desk for several months, eventually attracting speculation as to the cause of delay.[126] Then, in December 2021, the Board withdrew its recommendation.[127] In a letter addressed to Governor Abbott’s office, the Board’s presiding officer wrote that it was in the process of examining its own procedures and discovered some “departures” from its rules.[128] As a result, the Board withdrew its recommendation for Floyd and twenty-four others but indicated that it would review those applications in 2022.[129] Thus, according to the governor’s press secretary, the governor “did not have the opportunity to consider” Floyd’s petition.[130]

All of this was puzzling, but as is so often true, unravelling the puzzle may further our understanding. Mathis said the application had gone through a compliance review, and none of the Board’s members had raised any issues.[131] What, then, were the late-discovered “departures”? Compounding the mystery is a mismatch between the provisions of Texas law cited in Floyd’s application for a pardon and in the Board’s cryptic statement of its withdrawal of the recommendation.[132] Floyd’s application had been made pursuant to Section 143.13 of the relevant Texas Code, but the Board’s withdrawal suggested deficiencies under Section 143.2.[133] Floyd’s application plainly failed to meet the exacting standards set forth in Section 143.2, which governs “pardons for innocence.”[134] Such relief is permissible only when the Board receives either (a) the “written recommendation of at least two of the current trial officials of the sentencing court” that, on the basis of newly discovered evidence, the petitioner is actually innocent; or (b) a judicial order pronouncing the petitioner actually innocent.[135] Neither condition was satisfied in Floyd’s case.[136]

Floyd’s petition, however, was filed under Section 143.13, entitled “Posthumous Pardon,” which provides, in full: “Upon request from a person acting on behalf of a deceased person who was convicted of a felony offense, the Board will consider recommending a full pardon for the deceased person.”[137] Floyd’s application for a pardon, through his lawyer, satisfied the sparse terms of Section 143.13. It is, therefore, unclear why the Board decided, apparently in retrospect, that the requirements of Section 143.2 also apply to petitions filed under Section 143.13.[138]

The contrast between the rigor of Section 143.2 and the laxity of Section 143.13 nonetheless puts in bold relief the question before us: What should be required for the issuance of a posthumous pardon? Texas’s scheme can at least be credited with recognizing that special rules should apply to posthumous pardons. It would be absurd to condition a posthumous pardon on evidence submitted by “two of the current trial officials” who heard the case.[139] For defendants convicted long ago, those officials may themselves be dead or unable to give credible evidence.

On the other hand, is it not possible to channel the decision-making with respect to posthumous pardons more than Section 143.13? Indeed, the only limitation on the issuance of posthumous pardons cited in that section—that the request be by one “acting on behalf of a deceased person”[140]—is ill-chosen. Who is authorized to “act[] on behalf”? If the moving party must be a legal descendant, then circumstances could arise in which a dead person, however deserving of a pardon, would be ineligible, because there are no next of kin. Or does any Texan (or American? or person?) have standing to request a pardon on behalf of a deceased? And if so, on what basis are such pardons to be issued? Must “actual innocence” be established, even for those whose trials occurred long ago and as to which the facts are shrouded in the mists of time?

In short, Texas’s pardon scheme is preferable to Virginia’s in at least three ways: first, it provides a transparent screening process, in which pardon applications are processed by an independent board; second, at least for ordinary pardons, the board operates within relatively clear guidelines; and third, posthumous pardons are carved out as special cases. The principal defect is the failure to specify or even hint at what rules should govern posthumous pardons. What those rules might be is the issue to which this Article now turns.

III. Legally Exonerating the Dead: Costs and Benefits

Academic discussions of pardons in America tend to take one of two tracks—either lamenting their rarity or condemning their frivolity.[141] Both criticisms are well-founded. There are doubtless many people languishing in prison for crimes of which they are wholly innocent, excessively punished, or genuinely repentant; this reality is all the more intolerable when one reflects that the mere stroke of a president’s or governor’s pen could often remedy the injustice. [142] And yet when that pen is wielded, alas, how randomly it seems to select its beneficiaries.[143] The catalog of manifestly unmerited pardons is long. When governors and even presidents have been left to their own devices, pardons often seem recklessly granted, for personal or partisan gain.[144]

Posthumous pardons are likewise not exempt from criticism. Consider President Trump’s posthumous pardon of Susan B. Anthony.[145] She was charged with violating New York state law in 1872, when she illegally voted in the presidential election.[146] She was afforded zealous counsel and the opportunity to speak her mind after the guilty verdict, which she emphatically did, in a speech that did much to launch the women’s suffrage movement.[147] Indeed, the trial was a boon to Anthony’s cause, in giving her an abundance of free and overwhelmingly favorable publicity.[148] No effort was ever made to collect the penalty (a $100 fine) that was imposed—which was doubtless a good thing, as Anthony repeatedly said that she would never pay it.[149] The Susan B. Anthony Museum rejected the pardon, saying in the same spirit as Anthony herself, that accepting the pardon would have validated the trial.[150] Some observers mused that the president issued the pardon as a cynical ploy to attract women voters.[151]

Or consider President Trump’s pardon of boxer Jack Johnson.[152] Johnson aroused racial animosity throughout his career, and his prosecution in 1913 under the much-denigrated Mann Act was at least in part the result of prejudice.[153] Nonetheless, the Act remains on the books (used most recently against Ghislaine Maxwell).[154] There were other notorious prosecutions under the Act, such as that of F. Drew Caminetti, also in 1913, for crossing state lines with his mistress.[155] That conviction was upheld in a 1917 Supreme Court decision that held that consensual, nonmarital sex fell within the statute’s definition of “immoral sex.”[156] In light of Lawrence v. Texas,[157] should Caminetti be pardoned? Of course, the ceremony accompanying such a pardon would not be attended by celebrities such as Sylvester Stallone and Deontay Wilder, nor would it attract praise from far-flung political quarters.[158] Curiously, President Obama resisted the many calls to pardon Johnson, with his Attorney General, Eric Holder, reportedly saying: “To know the way in which he treated women, physically abused women, gives me pause.”[159]

Other high-profile posthumous pardons also raise concerns. When New York Governor George Pataki pardoned comedian Lenny Bruce, who had been convicted of obscenity, the applause was universal.[160] Bruce’s case was supported at the time (and after) by many celebrities, such as Woody Allen, Norman Mailer, and James Baldwin.[161] But what was achieved? Although Bruce was sentenced to four months for obscenity, he died, as the result of a drug overdose, in the pendency of the appeal; and so technically, his conviction was abated.[162] In any event, he was almost certain to prevail on appeal, as his co-defendant did, and as Bruce himself did in several related cases.[163] One can celebrate Bruce’s pardon as a vindication of the First Amendment,[164] but one might more cynically observe that such proclamations are easy ways for politicians to burnish their own reputations, even if the pardon does nothing to burnish the reputation of the putative beneficiary: Has anyone’s opinion of Lenny Bruce changed as the result of the pardon? And, why just Lenny Bruce? Why not Mae West, who actually served ten days in a New York prison for obscenity, but who, alas, has fewer living acolytes to rally to her cause?[165]

One might respond that even if very little good is accomplished by such posthumous pardons, what is the harm? Indeed, those wary of government actors might applaud posthumous pardons on the premise that every minute an elected politician devotes to such matters is a minute not spent on matters likely to harm the public interest. But let us discount such cynicism and operate on the opposite hypothesis—that a public official’s time is both finite and valuable. Are posthumous pardons the best use, or even a good use, of that time? Before weighing the supposed benefits, are there costs to posthumous pardons? In the category of actuals costs, any pardon undoes the finality of a verdict. The consequent uncertainty—and controversy—can fuel an appreciation of the wisdom in the adage about letting sleeping dogs lie. The several-decade saga involving the exoneration of Leo Frank is illustrative.

Cornell-educated, Frank was the Jewish factory manager of a pencil factory in Atlanta in 1913, when fourteen-year-old Mary Phagan was found murdered in the factory basement.[166] Jim Conley, the illiterate black nightwatchman who had discovered the victim, initially proved a convenient suspect, but prosecutors soon focused on a more luscious defendant: the rich Yankee factory manager.[167] Frank’s trial was far from a model of perfection, but it was not a mockery of justice.[168] Even after the U.S. Supreme Court issued an opinion affirming the conviction,[169] doubts continued to mount, intensified by a campaign on Frank’s part by the Jewish community in Atlanta and throughout the nation.[170] Governor Slanton commuted Frank’s sentence to life imprisonment, but the reprieve was brief. [171] On the evening of August 16, 1915, twenty-five armed men broke into the prison, abducted Frank, and lynched him the following morning.[172]

In 1986, the Georgia Board of Pardons and Paroles sought to correct the injustice and issued what was described as a pardon of Frank.[173] And yet, what one might expect to have brought a measure of “closure” to this unfortunate episode in history has accomplished exactly the opposite. The pardon was careful not to absolve Frank of the crime; it simply regretted the State’s failure to protect him while in custody and expressed misgivings about some of the trial’s procedures.[174] This has not satisfied many, who have continued to push for, and even demand, the full exoneration that Frank’s memory demands.[175] And yet, if Frank is innocent, then Conley was almost certainly guilty. Is it fair, after a century, on the basis of shaky evidence, to hold him responsible for murder? And then there is the family of Mary Phagan, who continue to insist on Frank’s guilt and have strenuously opposed a pardon.[176]

Let us reconsider the Martinsville Seven pardon in light of the ongoing Frank-pardon saga. Ruby Stroud Floyd was raped, almost certainly by more than one man, on January 8, 1949.[177] Recall that according to Governor Northam’s pardon, the Martinsville Seven each have a “truth.”[178] Even allowing the post-modern possibility of a multiplicity of truths, does Ruby Stroud Floyd not also have a truth? She testified—seven times—to the guilt of the Martinsville Seven.[179] Does the pardon repudiate her truth? Or is the pardon preserving respect for her truth, but only allusively suggesting the possibility that the Martinsville Seven were innocent, without actually saying so? Threading that needle would have required a more skillful rhetorician than was apparently employed in the former governor’s office.

In her essay on the Martinsville Seven, Professor Barbara Holden-Smith is very critical of a legal system that singled out black men for capital punishment, but a respect for the complexity of the case leads her to this observation:

There are two compelling stories here. On the one hand resides the horror of the South’s history of putting black men to death-first by mostly extra-legal lynching and later by state-sanctioned executions. On the other hand sits the horror of rape itself and all it symbolizes about the unjust treatment of women in our society.[180]

As with Leo Frank, a pardon of the Martinsville Seven, if approached with any legal rigor, presupposes a reassessment of the entire case; to do so requires a fuller investigation and accounting than was even begun. For starters, were Ruby Stroud Floyd’s descendants consulted before the pardon was issued? Furthermore, the curious phrasing of the pardon itself, singling out Grayson, raises the question: Were the other defendants equally exonerated? As in the Frank controversy, excusing one person of a crime may be an oblique way of accusing another; in the absence of newly discovered evidence, what justifies this remarkable step?

Pardoning George Floyd for drug possession might be said to be a less nettlesome enterprise, because there is no crime victim whose truth would be denied, or co-defendants whose guilt would be affirmed. But again, there is the hidden cost. The Texas Board of Pardons and Paroles has a stunningly large docket.[181] There are now over 150,000 people behind bars in Texas.[182] Hundreds of thousands more people labor under the miscellaneous burdens of a felony conviction.[183] In addition to clemency recommendations, the Board is responsible for which prisoners to release on parole, what the conditions of parole should be, and when revocation of parole is appropriate.[184] Is the best use of the Board’s time to debate what happened in 2004, when Officer Goines claimed to witness Floyd sell a $10 rock of crack cocaine?[185] Goines, we may assume, lied in a warrant application that resulted in a disastrous search in 2019,[186] but presumably at various points in his earlier life he told the truth. Harris County District Attorney Kim Ogg joined in the request to issue Floyd a posthumous pardon,[187] but it is unclear what steps, if any, were taken to arrive at any confidence of George Floyd’s innocence. Said Goines’s attorney in June 2020: “this is a transparent and opportunistic effort to capitalize on Floyd’s murder.”[188]

Ogg was narrowly reelected in November 2020.[189]


Posthumous pardons are emblematic of what has become a large and growing part of our government’s docket: symbolic legislation and executive orders.[190] The attraction of such gestures is straightforward: it allows public officials to associate themselves with noble causes at relatively little risk of offending anyone, or at worst, by offending only the incorrigibly dyspeptic.

This Article might seem to fall within the latter camp, but the aim is to persuade the reader that a measure of skepticism about posthumous pardons is appropriate. First, the costs to unraveling a long-ago conviction are often understated. Second, given the finitude of a public officials’ time and attention, the benefits conferred by the posthumous pardon are secured only at the expense of other pardons that might confer tangible benefits.

Viewed from this perspective, posthumous pardons are less clearly to be celebrated. In Floyd’s case, the Harris County District Attorney appropriately ordered a comprehensive review of every case Officer Goines brought over the course of his twenty-year career,[191] but surely priority should be assigned to living convicted defendants. Floyd’s tragic death sixteen years later and over 1,000 miles away cannot be undone by the pardon.

The Martinsville Seven pardon is almost a case study in how not to exonerate the dead. The pardon sloppily mixes insinuations that the victim misidentified the defendants, with implications that some, but not all, defendants might really have been guilty. The death sentences imposed on all seven defendants in that case were plainly the consequence of their race. That should have been the straightforward statement of Governor Northam, without the embellishments and flowery rhetoric that complicated the message and undermined its power.

The communal impulse to recognize past errors committed under the color of law is praiseworthy. At times, it is even appropriate to solemnize that impulse in the legal form of a pardon. But that impulse can take many other nonlegal forms—most notably, declarations of contrition by heads of state.[192] Such apologies can, and often should, be joined by monetary relief. Illustrative is the Civil Liberties Act of 1988, in which the U.S. Government not only apologized for the internment of Japanese Americans but also created a $1.25 billion compensation fund.[193] A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

  1. . Professor of Law, Scalia Law School, George Mason University. The author thanks Thomas Coleman for research assistance.
  2. . Press Release, Governor Ralph Northam, Governor Northam Grants Posthumous Pardons for ‘Martinsville Seven’ 70 Years After Unjust Executions (Aug. 31, 2021) (available at [hereinafter Northam Press Release]; Simple Pardon, Commonwealth of Virginia, Executive Department, Martinsville Seven Grant (Aug. 31, 2021), [hereinafter Martinsville Seven Pardon].
  3. . Policies, Off. of the Pardon Att’y, (last updated Dec. 23, 2020).
  4. . Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251, 1251 (1999).
  5. . Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. Times (Dec. 23, 2008),
  6. . Policies, supra note 2.
  7. . Stephen Landsman, When Justice Fails, 84 Mich. L. Rev. 824, 829 (1986).
  8. . Jackson, supra note 3, at 1288.
  9. . John Snowden (1890-1919), Archives of Md., (last visited Apr. 5, 2022).
  10. . John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003),
  11. . The Innocence Project & Maurice Possley, Timothy B. Cole, Nat’l Registry of Exonerations, (last updated Mar. 10, 2015).
  12. . Press Release, Off. of the Governor, Governor Lincoln D. Chafee Pardons John Gordon, (Jun. 29, 2011) (available at
  13. . Frank James, Tom Joyner’s Wrongly Executed Relatives Cleared ­– 94 Years Too Late, NPR (Oct. 14, 2009, 8:15 PM),
  14. . Verna Gates, Alabama Pardons Scottsboro Boys in 1931 Rape Case, Reuters (Nov. 21, 2013, 11:20 AM),
  15. . Jacey Fortin, Florida Pardons the Groveland Four, 70 Years After Jim Crow-Era Rape Case, N.Y. Times (Jan. 11, 2019),
  16. . Samantha Schmidt, Decades After His Arrest For Having Sex With Men, A Gay Civil Rights Leader Is Pardoned, Wash. Post (Feb. 5, 2020),
  17. . Press Release, Off. of the Governor, Gov. Edwards Signs the First and Historic Posthumous Pardon of Civil Rights Leader Mr. Homer A. Plessey (Jan. 5, 2022) (available at
  18. . Kevin Reynolds, Texas Board Recommends George Floyd Receive a Posthumous Pardon for 2004 Houston Drug Arrest, Tex. Trib. (Oct. 4, 2021, 7:00 PM),
  19. . Jolie McCullough, Texas Gov. Greg Abbott Remains Silent on Posthumous Pardon for George Floyd, Tex. Trib. (Nov. 29, 2021, 7:00 PM),
  20. . Kate McGee, Texas Board Rescinds Recommendation for Posthumous Pardon of George Floyd, Tex. Trib. (Dec. 23, 2021, 6:00 PM),
  21. . Id.
  22. . Scott D. Seligman, Justice for the Dead, Atlantic (Oct. 26, 2021),
  23. . Fred O. Smith, The Constitution After Death, 120 Colum. L. Rev. 1471 (2020).
  24. . Id. at 1472, 1513.
  25. . Id. at 1473 (quoting Sophocles’ Antigone).
  26. . Carol S. Steiker, Remembering Race, Rape, and Capital Punishment, 83 Va. L. Rev. 693, 695 (1997).
  27. . Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. Crim. L. & Criminology 1571, 1574 (1996).
  28. . See generally Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (1995).
  29. . The link that was active when Ralph Northam was governor is now broken. The document is now accessible only through Wayback Machine Internet Archives. See Martinsville Seven Pardon, supra note 1.
  30. . The facts of the following two paragraphs are drawn from Rise, supra note 27, at 7–20, and Hampton v. Commonwealth, 58 S.E.2d 288, 289–90 (Va. 1950).
  31. . Rise, supra note 27, at 7.
  32. . Id. at 8.
  33. . Id. at 9.
  34. . Id.
  35. . Id. at 10.
  36. . Id. at 11.
  37. . Id.
  38. . Id. at 17, 19–20.
  39. . Id. at 10, 16.
  40. . Id. at 10.
  41. . Id. at 12–15.
  42. . Id. at 14.
  43. . See id. at 16; Martinsville Seven Pardon, supra note 1.
  44. . Rise, supra note 27, at 15.
  45. . Id.
  46. . Id.
  47. . Id. at 16.
  48. . Id.
  49. . Id.
  50. . Id. at 17.
  51. . Id. at 18.
  52. . See id.
  53. . Id. at 13.
  54. . Under Virginia law, voluntary intoxication is only a defense to premediated murder. Lawlor v. Davis, 764 S.E.2d 265, 276 (Va. 2014).
  55. . Rise, supra note 27, at 15–17.
  56. . Technically, the conviction would be for rape as a principal in the second degree. Sutton v. Commonwealth, 324 S.E.2d 665, 671 (Va. 1985).
  57. . Rise, supra note 27, at 19.
  58. . See, e.g., Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by Police, 76 Or. L. Rev. 775, 785 (1997).
  59. . See infra Subpart I.B.
  60. . Rise, supra note 27, at 18–19.
  61. . Id. at 18.
  62. . Id. at 19.
  63. . Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 385 (2009).
  64. . Hampton, 58 S.E.2d at 294 (quoting trial judge: ‘The public in this community should be congratulated upon the way they have conducted themselves”).
  65. . Rise, supra note 27, at 29 (the defense lawyers included a state legislator, a former commonwealth’s attorney, and “one of the foremost defense lawyers in this entire area”).
  66. . See Klarman, supra note 62, at 383 (defense lawyers included a “local septuagenarian” and an alcoholic who “could scarcely walk straight in the morning”).
  67. . Rise, supra note 27, at 29.
  68. . Id. at 30.
  69. . Id. at 31–32.
  70. . Compare Hampton, 58 S.E.2d at 293–94 with Skilling v. United States, 561 U.S. 358, 378 n. 11, 382 (2010).
  71. . Rise, supra note 27, at 38–40.
  72. . See, e.g., Ellis Cose, The Saga of the Scottsboro Boys, ACLU (July 27, 2020),
  73. . Rise, supra note 27, at 38–45; Hampton, 58 S.E.2d at 296–97.
  74. . Rise, supra note 27, at 43–45.
  75. . Id. at 43.
  76. . Id. at 45.
  77. . Compare Rise, supra note 27, at 38–45, with Klarman, supra note 62, at 383.
  78. . Rise, supra note 27, at 36.
  79. . Id. at 36–37.
  80. . Id.
  81. . See Batson v. Kentucky, 476 U.S. 79, 79–80 (1986).
  82. . Rise, supra note 27, at 47.
  83. . Kennedy v. Louisiana, 554 U.S. 407, 473 (2008).
  84. . See Trop v. Dulles, 356 U.S. 86, 100–01 (1958).
  85. . Dale M. Brumfield, Seven Black Men, Seven Death Penalties, Medium (June 5, 2019), See generally David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004).
  86. . Baldus & Woodworth, supra note 84, at 1415–17.
  87. . See Davis v. Commonwealth, 45 S.E.2d 167, 169 (Va. 1947).
  88. . Id. at 168.
  89. . “James Luther Taylor” in the second paragraph is a curious amalgam of two of the defendants: James Luther Hairston and John Clabon Taylor. See Martinsville Seven Pardon, supra note 1. Also, the second paragraph refers to “James (Joe) Henry Hampton,” which apparently corresponds to “Joe Henry Hampton” in the first paragraph. Id. At no point in any of the legal filings was this defendant referred to as “James (Joe),” so it is unclear what inspired the pardon’s author to adopt this formulation. See, e.g., Hampton, 58 S.E.2d at 288–92, 299, 301–02 (referring to “Joe Henry Hampton” throughout).
  90. . See Martinsville Seven Pardon, supra note 1.
  91. . Id.
  92. . Northam Press Release, supra note 1.
  93. . Martinsville Seven Pardon, supra note 1.
  94. . Id. at ¶ 3.
  95. . See, e.g., John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 214 (2001).
  96. . Martinsville Seven Pardon, supra note 1.
  97. . Id.
  98. . See Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L. Rev. 107, 109 (1994) (discussing the Batson doctrine, which “hinders both sides in a criminal case from the use of racially based peremptory strikes in jury selection”).
  99. . Martinsville Seven Pardon, supra note 1.
  100. . Id.
  101. . Trop v. Dulles, 356 U.S. 86, 101 (1958).
  102. . See Kennedy v. Louisiana, 554 U.S. 407, 422–24 (2008) (relying on fact that between 1930 and 1964, 455 people convicted of rape were executed, whereas death sentences for rape became rare thereafter).
  103. . Herbert L. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1073 (1964).
  104. . See Martinsville Seven Pardon, supra note 1.
  105. . Id.
  106. . Id.
  107. . See Conor Friedersdorf, The Difference Between “Your Truth” and “The Truth,” Atlantic (Jan. 8, 2018),
  108. . See Martinsville Seven Pardon, supra note 1.
  109. . Id.
  110. . Types of Pardons in Virginia and Eligibility Information, Sec’y of the Commonwealth, (last visited Apr. 3, 2022).
  111. . See Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020, 6:49 AM),
  112. . See Luis Andres Henao et al., A Long Look at the Complicated Life of George Floyd, Chi. Trib. (June 11, 2020, 11:17 AM),
  113. . Some of the more extravagant claims of Floyd’s criminal history are meticulously fact-checked in Gabrielle Settles, A Post Exaggerates George Floyd’s Criminal History, Politifact (Jul. 28, 2021), That article includes a screenshot of the nine offenses listed in the County database. Id.
  114. . See Juan A. Lozano, Texas Board Recommends Posthumous Pardon for George Floyd in 2004 Drug Arrest; Request Awaiting Governor’s Approval, USA Today (Oct. 5, 2021, 2:29 P.M.),
  115. . See Michael Daly, The Monster Cop Who Encountered George Floyd in Houston, U.S. News (Jun. 11, 2020),
  116. . St. John Barned-Smith, George Floyd Should Receive Posthumous Pardon in 2004 Goines Arrest, State Board Recommends, Hous. Chron., (last updated Oct. 4, 2021, 6:50 PM).
  117. . Arelis R. Hernandez, George Floyd’s America: A Knee On His Neck, Wash. Post, (last updated Oct. 26, 2020, 7:54 AM) (noting that after arrest, Floyd faced up to forty-years in prison but, due to circumstantial evidence, was offered a twelve-year plea deal and then the ultimately accepted five-year plea deal).
  118. . Chloe Alexander, Texas Parole Board Recommends Posthumous Pardon for George Floyd in 2004 Conviction, KHOU 11, (Oct. 4, 2021, 6:30 PM).
  119. . Letter from Kim Ogg, Harris Cnty. Dist. Att’y, to Texas Bd. of Pardons & Paroles (Apr. 28, 2021) (available at [hereinafter Ogg Letter].
  120. . ‘Procedural Errors’ Mean No Posthumous Pardon For George Floyd Regarding 2004 Drug Arrest In Houston, CBS DFW 21 (Dec. 24, 2021, 7:35 AM),
  121. . Ogg Letter, supra note 118.
  122. . Ex parte Otis Mallet, 602 S.W.3d 922 (Tex. Crim. App. 2020); Ex parte Steven Mallet, 620 S.W.3d. 797, 798 (2021).
  123. . See Reynolds, supra note 17.
  124. . Ogg Letter, supra note 118.
  125. . Reynolds, supra note 17.
  126. . See McCullough, supra note 18.
  127. . Letter from David Gutiérrez, Presiding Officer, Texas Bd. of Pardons & Paroles, to James Sullivan, Gen. Couns., Off. of the Governor (Dec. 16, 2021), [hereinafter Gutiérrez Letter]
  128. . Id.
  129. . Id.
  130. . Press Release, Off. of the Texas Governor, Governor Abbott Grants Clemency To Eight Texans Recommended By Texas Board Of Pardons And Paroles (Dec. 23, 2021) (available at
  131. . Kate McGee, Texas board rescinds recommendation for posthumous pardon of George Floyd, Tex. Trib. (Dec. 23, 2021),
  132. . Compare Ogg Letter, supra note 118 (request for pardon filed under 37 Tex. Admin. Code § 143.13), with Gutiérrez Letter, supra note 126 (finding “departures” under §§ 143.2, 143.6, 143.10).
  133. . See Ogg Letter, supra note 118; Gutiérrez Letter, supra note 126.
  134. . See 37 Tex. Admin. Code § 143.2 (2018).
  135. . Id.
  136. . See Ogg Letter, supra note 118 (agreeing with pardon recommendation because arresting officer later found to be unreliable but not attaching any recommendation from trial officials or a judicial order).
  137. . 37 Tex. Admin. Code § 143.13 (2018).
  138. . See Gutiérrez Letter, supra note 126.
  139. . 37 Tex. Admin. Code § 143.2.
  140. . 37 Tex. Admin. Code § 143.13.
  141. . See, e.g., Paul J. Larkin, Guiding Presidential Clemency Decisionmaking, 18 Geo. J. L. & Pub. Pol’y 451 (2020); Chet Flanders, Pardons and the Theory of the Second Best, 65 Fla. L. Rev. 1559 (2013); Robert L. Misner, 41 Wm. & Mary L. Rev. 1303 (2000).
  142. . In some states, governors can only issue pardons after first receiving a recommendation by a parole board; in a minority of states, the legislature has delegated the power to issue pardons exclusively to a parole board. See Kristen H. Fowler, Comment, Limiting the Federal Pardon Power, 83 Ind. L.J. 1651, 1662–64 (2008).
  143. . See, e.g., Sarah Schindler, Pardoning Dogs, 21 Nev. L.J. 117 (2020).
  144. . A recent, notably ill-conceived pardon was issued by Kentucky’s Governor Matt Bevin in his final days in office to a convicted killer, whose family had hosted a political fundraiser for him. Pardoned Kentucky Killer Sentenced to 42 Years in Prison, NBC News (Jan. 19, 2022, 6:18 AM), Federal charges were subsequently brought, and the pardoned individual was convicted in federal court for the same offense. Id.
  145. . Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Posthumous Pardon of Susan B. Anthony (Aug. 18, 2021) (available at
  146. . For the details of Anthony’s trial, see Rayne L. Hammond, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981, 982 (2000).
  147. . See id. at 1029–31.
  148. . Id. at 1032.
  149. . See id. at 1031–32.
  150. . See Neda Ulaby, Susan B. Anthony Museum Rejects President Trump’s Pardon of the Suffragist, NPR (Aug. 20, 2020, 2:45 PM),
  151. . Libby Cathey, Critics Pressure Trump to Rescind Susan B. Anthony Pardon, ABC News (Aug. 19, 2020, 4:15 PM),
  152. , Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Pardon of John “Jack” Arthur Johnson (May 4, 2018) (available at
  153. . See Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L. Rev 529, 549–55 (1999); see also 18 U.S.C. § 2421.
  154. . Melissa Gira Grant, The Law Was Never Meant for Ghislaine Maxwell, New Republic (July 10, 2020),
  155. . See Caminetti v. United States, 242 U.S. 470, 482–83 (1917).
  156. . Id. at 491–93.
  157. . 539 U.S. 558, 578 (2003) (“The State cannot demean [petitioners’] existence or control their destiny by making their private sexual conduct a crime.”).
  158. . See John Eligon & Michael D. Shear, Trump Pardons Jack Johnson, Heavyweight Boxing Champion, N.Y. Times (May 24, 2018),
  159. . Kelefa Sanneh, Donald Trump, The Fighter-in-Chief, Pardons Jack Johnson, New Yorker (May 26, 2018),
  160. . Kifner, supra note 9.
  161. . Obscenity Case Files: People v. Bruce (The Lenny Bruce Trial), CBLDF, (last visited April 2, 2022).
  162. . See Kifner, supra note 9; Durham v. United States, 401 U.S. 481, 482–83 (1971) (holding that death during the pendency of an appeal “abates not only the appeal but also all proceedings had in the prosecution from its inception”).
  163. . Ronald K.L. Collins, Lenny Bruce and the First Amendment: Remarks at Ohio Northern University Law School, 30 Ohio N.U. L. Rev. 15, 30 (2004).
  164. . Id. at 31.
  165. . Charlotte Burns, Sex: The Play That Put Mae West in Prison Returns to New York, Guardian (Sept. 29, 2016),,of%20success%20wrong%20by%20wrong%E2%80%9D.
  166. . The account here relies on Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank (2004).
  167. . See Oney, supra note 165, at 118–44.
  168. . The issue is still hotly debated, but Oney’s elaborate discussion of the trial, id. at 190–344, does much to undercut the narrative implicit in Justice Holmes’s dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345–50 (1915). Oney makes clear that Frank had extraordinarily diligent counsel, a fair judge, and attentive jurors; he implies that the case was crucially lost because Frank, although honest, was an unappealing witness—cold, humorless, repetitive. Oney, supra note 165, at 300–03.
  169. . See Frank, 237 U.S. at 345 (1915).
  170. . Oney, supra note 165, at 474–80.
  171. . Id. at 503–12.
  172. . See Clement Charlton Mosely, The Case of Leo M. Frank 1913–1915, 51 Ga. Hist. Q. 42, 54 (1973); Oney, supra note 165, at 561–72.
  173. . Georgia Pardons Victim 70 Years After Lynching, N.Y. Times (Mar. 12, 1986),
  174. . See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 74 n.274 (1987).
  175. . Our View – The Pardon, Atlanta Jewish Times (Aug. 24, 2015),
  176. . On the ongoing controversy, see Steve Oney, Did Leo Frank Kill Mary Phagan? 106 Years Later, We Might Finally Find Out for Sure, Atlanta (May 31, 2019),
  177. . See supra text accompanying notes 31–51.
  178. . See Martinsville Seven Pardon, supra note 1.
  179. . See Rise, supra note 27, at 36–38.
  180. . Holden-Smith, supra note 26, at 1581.
  181. . See Exec. Serv., Texas Dep’t. of Crim. Just., Fiscal Year 2019 Statistical Report 6 (2020).
  182. . Incarceration Trends in Texas, Vera Inst. of Just., (last visited May 13, 2022).
  183. . See supra note 180, at 6.
  184. . See About Us: Texas Bd. of Pardons and Paroles, (last visited Apr. 5, 2022).
  185. . See supra notes 113–15.
  186. . See supra notes 113–15.
  187. . See Ogg Letter, supra note 118.
  188. . Jack Bleiberg, Texas Prosecutors Probe Irregularities in 2004 Floyd Arrest, AP News (June 13, 2020),
  189. . See Kim Ogg, Ballotpedia, (last visited May 20, 2022).
  190. . William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 531–32 (2001); Andrew Cohen, Symbolic Legislation to Nowhere, Atlantic (Feb. 23, 2012),
  191. . See Ogg Letter, supra note 118.
  192. . See Hugh Mulligan, Better Late Than Never—Sephardic Jews Savor Spain’s Apology, L.A. Times (May 17, 1992, 12:00 AM),
  193. . Civil Liberties Act of 1988, Pub. L. No. 100–383 (codified at 50 U.S.C. § 1989).

10 Wake Forest L. Rev. Online 149 (Opens PDF in new tab)

Ilhyung Lee*

The COVID-19 pandemic drastically affected the operations and daily routines of the university and college town that have been my home for the past twenty-two years.  In mid-March 2020, the University of Missouri (“MU”),[1] in Columbia, Missouri, suspended all in-person classes for the remainder of the semester, with classes to be taught remotely,[2] and also prohibited employees from working on campus, with rare exceptions, for a three-week period,[3] later extended.[4]  The City of Columbia issued a general stay at home order for a one-month period,[5] which was also extended.[6]  Intercollegiate athletic contests of the Missouri Tigers were cancelled for the remainder of the academic year.[7]  This appears to have been the norm for many universities across the country as a result of COVID-19.[8]

An event that occurred at MU that was not seen in all other institutions involved an action by the university’s faculty council.  The Missouri faculty council, similar to those of other universities, is “the elected representative organization of the [university] Faculty,” which “develops policies that affect academic life.”[9]  During the council’s meeting on April 9, 2020, it issued an “Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination” (“Open Letter”).[10]  “[I]t is with sadness,” the Open Letter states, “that we note that some members of the Chinese, Korean, and other Asian communities on our campus and in our community have experienced incidents of discomfort and discrimination in their dealings with others because of the pandemic.”[11]  The council urged the university community and elected officials to refer to the disease by its scientific name and “to reject and push back against any xenophobia triggered by racist descriptions of COVID-19.”[12] 

I imagine that different readers will have different reactions to the 362-word Open Letter, and I encourage those interested to voice their views.  For me, the document prompts a discussion of various issues relating to the field of Asian American jurisprudence. 

By way of necessary background, in 1993, Professor Robert S. Chang announced an “Asian American Moment,” and with it called for an Asian American Legal Scholarship.[13]  He noted that the new field was necessary because neither traditional civil rights methodology nor critical race theory adequately addressed the Asian American experience.[14]  In the twenty-seven years since Professor Chang’s call to action, the movement has seen significant scholarship in the field[15] (including criticism from one author that the movement has failed, with Asian American law scholars to blame),[16] symposia exploring legal issues affecting Asian Americans,[17] and efforts to include Asian American jurisprudence in the law school curriculum.[18] 

One characteristic of Asian American Legal Scholarship, as well as other forms of “outsider jurisprudence,”[19] is the personal narrative (or the less professorial label of “storytelling”), in which authors incorporate their personal experiences in their work.  For example, in Professor Chang’s opening text, he recounted the times he was refused service at a gas station,[20] stopped by the police for suspicion of possessing a stolen vehicle,[21] and mistaken for a copy boy by a faculty colleague at his law school.[22]  Professor Margaret (H.R.) Chon recalled the experience of a nine-year-old boy chanting a fake Asian language at her and her two kids when she picked them up from school.[23]  Professor Chris Iijima began his article: “My six-year-old half-Asian son has just had his first ‘Ching Chong Chinaman’ taunting in school.  I was expecting it, but it threw me off-balance nevertheless.”[24] 

There is considerable commentary on the use of the narrative in legal scholarship, indicating a polarized debate on the subject.[25]  Criticisms against the narrative form range from the view that personal experiences are not relevant and do not contribute much to the development of law,[26] to the more dyspeptic statement that some who “forswear[] analysis in favor of storytelling . . . come across as labile and intellectually limited.”[27]  Another observer has noted that in the “victim talk world” that we live in, some stories might sound of “testimonials of pain in a contest over who suffered more.”[28]  For their part, Professors Daniel A. Farber and Suzanna Sherry conclude that stories can legitimately and significantly contribute to legal scholarship and our understanding of the law, if they are accurate, typical, and legally relevant.[29]

It seems to me that the Open Letter was motivated by the same type of individual personal experiences seen in much of Asian American Legal Scholarship.  Members of the faculty council learned of incidents where persons of Asian descent experienced racism on campus or in the surrounding area.  These experiences were the basis for action that led to the drafting and approval of the letter.  But here lurk Farber and Sherry’s warnings on reliance of “stories from the bottom.”[30]  I hasten to add that Farber and Sherry’s demand for truth and typicality was designed for legal scholarship, and not action by a university faculty council.  Still, the faculty council at the University of Missouri “serves as a reflection of faculty thought.  It is the public face of MU faculty members to university officials, stakeholders, and media.”[31]  Moreover, the actions of a body at a public university might evoke thoughts of “state action” and public accountability.  Although the Open Letter does not have the force of law, the basis for the council’s actions should be concrete and bona fide. 

I think it is entirely fair for readers of the Open Letter to ask, civilly and constructively, elaborating questions about the referenced incidents.  I prefer to think that my colleagues in academia, engaged and interested, wish to understand and be informed about the underlying setting.  To this end, what were the “incidents of discomfort and discrimination” that members of this Missouri community experienced?[32]  I would press for clarification on the reference to “discomfort and discrimination.”  Individual discomfort seems subjective and leaves open the possibility of a hypersensitive victim, perhaps one with an “eggshell psyche.”[33]  In discrimination, was the council using the term in the lay or legal sense?  As one court has noted, the term “has a specialized meaning in the law and in lay use the term has a distinctly less precise meaning.”[34]

Toward due diligence, I contacted a member of the MU faculty council to get more details.[35]  My source on the council was not at liberty to discuss the particulars of the referenced incidents, but graciously responded to my queries.  In sum: In the spring of 2020, approximately eight persons, mostly nationals of China or South Korea who are graduate students or pre-tenured faculty at the university, approached members of the council’s Inclusion, Diversity & Equity Committee.  These persons related their experiences of discriminatory comments and actions directed at them, on campus and in the surrounding area, which made them feel unwelcome, unsafe, or threatened.[36] 

One wonders if these stories would satisfy Farber and Sherry’s test for truth.  As they explain,

We can distinguish three different statements about the perception of an event:

(1) “If you had been watching, this is what you would have seen”;

(2) “The situation might not have looked this way if you had been watching, but this is how it felt to me”; and

(3) “The situation didn’t feel this way to me at the time, but this is how it seems to me now.”[37]

To Farber and Sherry, only “[t]he first standard is the customary test for the truth of a description of events,” “the ordinary understanding of truth.”[38]  Practically, other readers might react to stories of discrimination with skepticism and doubt.  Professor Chang acknowledged this possibility in his own work: 

I usually keep these stories to myself because when I tell them to people, I often hear doubt in their voices and their questions.  How do you know it was racism?  How do you know that the same thing would not have happened to anyone else?  They question the details. . . .  As the questions keep coming, I realize that people do not want to believe me. . . .  From their perspective, since Asian Americans do not suffer from discrimination, I must be mistaken, deluded, or lying.[39]

If, assuming for purposes of discussion only, that the incidents referenced in the Open Letter did occur and any reasonable person would describe them as “incidents of discomfort or discrimination,” it is also a fair question to ask if they are merely isolated incidents,[40] which returns us to Farber and Sherry’s call for typicality.  They explain that, in legal scholarship, “if the story is being used as the basis for recommending policy changes, it should be typical of the experiences of those affected by the policy.”[41]  Readers can decide for themselves whether due to the COVID-19 pandemic, racially motivated acts against persons of Asian descent in America are isolated and atypical, or are instead, if not common, at least not uncommon, and of sufficient frequency to require some public action.  The major American media outlets have reported a number of such incidents of racial bias, including violence, in the several States.[42]  In the early months of 2020, there were reports of Asian Americans being stabbed,[43] kicked,[44] punched,[45] spat on,[46] sprayed with an air freshener,[47] verbally assaulted.[48]  One person was attacked allegedly for wearing a mask,[49] another, for not wearing one.[50]  Importantly, a New York Times report, whose title includes “Chinese-Americans Fear for Their Safety,” also notes that “[o]ther Asian-Americans—with families from Korea, Vietnam, the Philippines, Myanmar and other places—are facing threats, too, lumped together with Chinese-Americans by a bigotry that does not know the difference.”[51]  That is, perpetrators are discriminating, but not that discriminating.[52]

A brutally simple syllogism appears to be at work here: The virus that led to a pandemic that caused death, illness, mass unemployment, and profound disruption of everyday life in America and many other countries originated in ChinaTherefore, blame, displeasure, assault, or violence against those stateside who appear Chinese (“enough”) is warranted.  That would seem to qualify as nativistic racism, however defined.[53]

It was racism that the Missouri faculty council’s letter sought to address, hence the unambiguous title, “Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination.”[54]  Thus, the council emphatically urged all to reject “any xenophobia triggered by racist descriptions of COVID-19.”[55]  In its capacity as “the elected representative organization of the MU Faculty” and “the public face of MU faculty members,”[56] the council took decisive action to issue the letter. 

The Open Letter was well-intentioned.  Yet I have questions, which relate to lessons and teachings of Asian American jurisprudence.  Note the phrasing to identify the persons in the referenced group: “[S]ome members of the Chinese, Korean, and other Asian communities on our campus and in our community”; “our Chinese, Korean or other Asian friends and colleagues”; “our Asian friends and colleagues”; “the Chinese, Korean, and other Asian friends and colleagues.”[57]  With the chosen phrasing, was the faculty council referring to (1) nationals of countries in Asia who are on campus or in the area as international students or visiting scholars (and their families), whose stay in the university community is temporary, inclusive of their terms of study; or (2) U.S. nationals—with permanent residence or citizenship—of Asian descent; or (3) both?  Although persons in the first two subgroups are both of Asian descent, those in the first might see themselves as transients in America.  Those in the second, for whom America is their domicile or permanent home, are persons whom I would approximate as comprising of “Asian Americans.”[58]  Given the letter’s later reference to the university’s International Student and Scholar Services office, which is “available to help students and scholars navigate their responses and cope with such incidents,”[59] the focus of the council’s attention seemed to be on the first subgroup above, Asians temporarily in America.  My contact on the faculty council confirmed to me that persons who reported the incidents were mostly nationals of China or South Korea.[60]  But if this is the case, the letter would inexplicably fail to include Asian Americans.[61]  Indeed, the “Asian American” description does not appear at all in the letter, nor “American citizens of Asian descent.”  The media reports provide ample examples that regardless of their national origin, immigration status, or time stateside, persons who appear Asian are subject to incidents of bias and violence.[62]  Moreover, in a letter whose purported goal was to reject racism, xenophobia, discrimination, and bias, it is puzzling to leave out U.S. nationals who are of Asian descent.

The Open Letter reminds of otheringMerriam-Webster has explicitly raised the question of whether other is a verb.[63]  The well-known dictionary source notes that although the word has served as an adjective, adverb, noun, and pronoun over the past few centuries, “[i]n recent decades, other has increased its part-of-speech portfolio to include verb use, having acquired the meaning ‘to treat or consider (a person or a group of people) as alien to oneself or one’s group (as because of different racial, sexual, or cultural characteristics).’”[64]  Thus, in mid-Missouri in the spring of 2020, those whose actions led to “the incidents of discomfort and discrimination” were othering, and those who were targeted were othered (or otherized).  This is classic othering, when the otherers view the othered as aliens from other countries.  Arguably, there was another form of othering, when U.S. nationals—permanent residents and citizens—also of Asian descent, some of whom were born stateside (and some in Boone County, Missouri, and lived all their lives there), were omitted. 

The Open Letter re-invites a discussion of what it means to be “Asian American.”[65]  The term includes persons from twenty different countries, and “[e]ach group has its own national identity with accompanying differences in language, culture, ethnicity, religious beliefs, and socioeconomic conditions.  In addition to the vast diversity among Asian groups, there are numerous subgroups within each national group.”[66]  There is also a history of tension and conflict between and among some Asian countries,[67] and sometimes within each country.[68]  Despite these differences and the complexity of the collective, there appears to be an emergence of a pan-Asian identity among persons of Asian descent.[69] 

In the Open Letter, the faculty council took the additional next step of calling on elected officials “to refer to [the disease] by its scientific name” and not “racist descriptions of COVID-19.”[70]  This was likely in response to reports of various politicians’ use of “Chinese virus” or “Chinese flu”[71] for COVID-19.  Just twelve days after the council issued its letter, the Attorney General of the State of Missouri filed a complaint in the United States district court in St. Louis against the People’s Republic of China and others, alleging that “defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians.”[72]  The complaint avers that Chinese authorities engaged in a “sinister”[73] and “appalling campaign of deceit, concealment, misfeasance, and inaction”[74] that allowed the virus to spread,[75] and then a cover up.[76]  The Show Me State was the first to commence such an action,[77] and perhaps there is substance to some of the charges.[78]  Commentators have offered their opinions on whether the action can overcome the sovereign immunity defense.[79]  Also of interest is what the Missouri lawsuit might say about local politics and what resonates with the electorate.[80]  These appear to be times when anti-Chinese sentiment is high nationwide, such that those seeking re-election in closely contested elections are employing an “attack China” message.[81]

Senator Josh Hawley of Missouri has argued that this message has “long resonated with voters at home.”  He stated, “The typical, ordinary, normal everyday voter in my state at least, in Missouri—if you ask them what they think about China, they’d say they think they’re a threat, they’re an opponent.  Working voters have been concerned for years about China cheating on trade, taking their jobs, and the military threat.”[82]  I must hasten to add that I am not qualified to assess the merits of the criticisms against China for its actions in contemporary geopolitics.  Rather, my question for the moment is whether policymakers should take into account the impact that anti-China rhetoric might have on the approximately 2.4 percent of the population of my home state, that is, Missourians of Asian descent.[83] 

In all events, Senator Hawley’s reference to the view that China is cheating on trade and taking Missourians’ jobs should be a chilling reminder of the infamous case of Vincent Chin.  A Chinese American, Chin was beaten to death with a baseball bat by two Detroit autoworkers, one of whom apparently believed that Chin was Japanese and was quoted as saying, “[I]t’s because of you little mother fuckers that we’re out of work.”[84]  As one commentator noted,

Even if one presumes that [defendants Ronald Ebens and his stepson Michael Nitz’s] unemployment was caused by unjust trade practices of the Japanese government, when Ebens and Nitz brained Vincent Chin, they transferred blame not only from the Japanese government to the Japanese people, not only from the Japanese people to United States citizens of Japanese descent, but finally from Japanese Americans to anyone unlucky enough to bear Asian features.[85] 

As discussed above, the personal narrative is an element of Asian American Legal Scholarship, as well as other fields, albeit with some controversy.  Perhaps I would be remiss in not offering some of my own personal experiences.  I will share one. 

For the first two and a half years of my life in the States, I lived in Iowa, when my father was a graduate student.  Beginning from the spring of my third-grade year, to the end of fifth grade, after which I moved to the East Coast, I attended elementary school in the Hawkeye State.  I remain in touch with a few of my Iowa classmates, my first friends in a new country, some fifty years later.  One—incidentally, the only Black student in my elementary school classes in Iowa—related to me a conversation that he had had with one of our other classmates when they reached the eighth or ninth grade.  In my friend’s conversation with John (not his real name), my friend mentioned that he was still in touch with me.  John responded, “He was one of them rich Japs.”[86] 

First, is the story, as I relate it, true?  Per Farber and Sherry, would a disinterested third party have seen and heard what I have described had she been present?[87]  That seems simple enough, as there is a binary character to my narrative.  Either my friend told me what he told me with the quoted words, or he did not.  Next, I acknowledge that my story sounds of hearsay, in that I am relating “something heard from another.”[88]  More accurately, it is hearsay within hearsay,[89] because I am offering that my friend told me what John told him.  For purposes of discussion, even if this Essay were considered a form of a “trial or hearing” under the formal rules of evidence,[90] I would argue that John’s statement to my friend is not hearsay, because although the declarant (John) is not making the statement here, it is not being offered “in evidence to prove the truth of the matter asserted in the statement,”[91] to wit, that I was a wealthy person of Japanese descent.  Rather, as seen herein, I urge that the matter asserted was false.  But that is not the end of the hearsay analysis, because the assertion from my friend that John said what he said is hearsay.  To evidence experts, I ask if one of the exceptions to the rule against hearsay[92] or the residual exception[93] might apply.  To everyone, I ask for a little leeway.

My parents’ tax returns from those two years of my life when John and I were classmates would confirm that my family was far from wealthy.  During that time, my family lived in the temporary barracks that my father’s university built after World War II, for married student housing.[94]  Although both of my parents were graduates of the top university in South Korea[95] and began careers as elementary school teachers there, my father was the first in his family to attend college, and my mother worked minimum wage jobs in Iowa to support the family, before re-directing to a new professional career in computer programming.  With respect to my national origin, John apparently did not know of my father’s bitterly resentful recollections of growing up under Japanese colonial rule, a period of “forced assimilation,” in which Koreans were to be made Japanese.[96] 

Then why offer in this record a false statement, by an adolescent, from the previous millennium.  Here, could I be accused of resorting to storytelling merely and unnecessarily for emotive appeal[97] or gratuitous “victim talk”?[98]  I would argue that there is much in John’s terse statement, the elements of which are seen in Asian American Legal Scholarship.  Perhaps my classmate from that Iowa school many years ago saw me as a foreigner from Asia, specifically a Japanese person, or perhaps he described everyone of Asian descent that way (“them . . . Japs”).  Perhaps he believed that persons of Asian descent stateside are all well-to-do (“rich”).  Over the years, scholars in the field have elaborated on my classmate’s simple statement and emphasized the societal perception of Asian Americans as perpetual foreigners,[99] regardless of their citizenship, place of birth, or length of years stateside, who are othered[100] and will always be viewed, not as Americans, but as Asian Americans,[101] and who, as members of the “model minority,” do not suffer from discrimination.[102] 

In 1993, the same year of Professor Chang’s landmark work, Professor Jerry Kang’s student note also examined racial violence against Asian Americans, and asserted that such violence “is not only brutalizing Asian American individuals, but also casting terroristic fear over their communities.”[103]  Twenty-seven years later, the COVID-19 pandemic has shown that microaggressions to slights to verbal assaults to physical violence against this demographic of the U.S. population continue.  Thus, Chang’s hope that Asian American Legal Scholarship would “speak our oppression into and out of existence”[104] has not yet been realized, in a country that is still struggling to resolve the most intractable problem of race.[105] 

The work of Asian American Legal Scholarship must continue.  Chiefly, if it is true that anti-Asian harassment is “surging” nationwide but with “little action from the federal government,”[106] then what policy or institutional changes could be implemented to address racial discrimination against Asian Americans?[107]  Some scholars may choose to further explore the interplay between electoral politics, Asia-related measures, and their impact on Asian Americans.[108]  The sudden increase in sales of firearms to Asian Americans[109] invites an ethnographic study on the support of the Second Amendment by this growing group of gun owners.  Building on the previous commentary regarding Asian Americans’ place in the traditional Black-White approach to race,[110] the time is ripe for a fresh look at the question of what role Asian Americans play in the Black Lives Matter movement.  Fully aware that others may disagree, I believe personal experiences, narratives, and stories (and open letters too) are relevant in this scholarship, toward an understanding of the tenets of Asian American jurisprudence. 

After some twenty years in academia, I have settled into my principal fields of (i) dispute resolution, with a special interest in the impact of culture on the dispute resolution process and (ii) law and society in East Asia, with a focus on Korea.  It is my license to note that the field of Asian American jurisprudence lies smartly in between.  Within the boundaries of the East Asia discipline is the subject of the societal diaspora.  Relocation stateside has given rise to legal issues affecting Asian immigrants, for the first and subsequent generations, resulting in disputes and opportunities for settlement.  Culture is the common denominator in all three fields.  For Asian American jurisprudence, culture appears on both sides of the U.S. dynamic.  On one is the societal and legal culture that allows for, among others, the exclusion of immigrants from a particular country;[111] the internment of American citizens based on their national ancestry,[112] while drafting some of them for U.S. military service;[113] the Vincent Chin case, whose defendants did not serve time as part of their sentence.[114]  On the other is an emerging culture of a demographic group comprising approximately 6 percent of the national population,[115] which includes persons of diverse national origins, seeking acceptance by the mainstream.  I readily concede that the notion of an “Asian American culture”—somewhat diffusive, amorphous—is contested.[116]  Yet somewhere between Eric Liu’s description of Asian American culture as “anything that Asian Americans are doing”[117] and his wry observation that “[w]hat’s missing from Asian American culture is culture”[118] lies the foundations for the work of a continuing Asian American Legal Scholarship.  At a minimum, this scholarship must continue to join the issue, of the comparative presence and role of Asian Americans, under law.

       *.   Edward W. Hinton Professor of Law & Director, Center for the Study of Dispute Resolution, University of Missouri.  I thank Kathy Cerminara, Susan Kuo, and Fred Yen for their comments and suggestions on a previous version of this Essay.  In the interest of full disclosure: I was a member of the University of Missouri Faculty Council, referenced herein, from 2011 to 2014; U.S. Senator Josh Hawley, also referenced herein, was a faculty colleague, from 2011 to 2016; while at work on this text, I received a message from the university system president informing me that I would not be selected for a faculty award for which I was nominated. 

      [1].   In the fall of 2015, the University of Missouri campus in Columbia was the site of racial tensions, which saw demonstrations, a student’s hunger strike, a boycott by the football team, and subsequent resignations of both the then university system president and campus chancellor.  See John Eligon & Richard Pérez-Peña, University of Missouri Protests Spur a Day of Change, N.Y. Times (Nov. 12, 2015),  For a discussion and analysis, by a faculty colleague, see Ben Trachtenberg, The 2015 University of Missouri Protests and Their Lessons for Higher Education Policy and Administration, 107 Ky. L.J. 61 (2018–2019).

      [2].   UM System Universities Suspend In-person Classes for Spring Semester, Univ. Mo. Sys. (Mar. 14, 2020),

      [3].   Presidential Directive To Reduce In-person Work, Effective Mar. 23, Univ. Mo. Sys. (Mar. 19, 2020),

      [4].   Work from Home Directive Continues, Univ. Mo. (Apr. 28, 2020),

      [5].   Dir. of Pub. Health & Hum. Servs., City of Columbia, Order No. 2020-03, Stay at Home Order (2020),

      [6].   Dir. of Pub. Health & Hum. Servs., City of Columbia, Order No. 2020-04, Renewal of Stay at Home Order (2020),

      [7].   The University of Missouri is a member of the Southeastern Conference, which announced the cancellation of all regular-season conference and non-conference competitions “for the remainder of the 2019–20 athletic year.”  SEC Statement on Remaining 2020 Competition, Se. Conf. (Mar. 17, 2020),

      [8].   See The Coronavirus Is Upending Higher Ed. Here Are the Latest Developments., Chron. Higher Educ. (Mar. 25, 2020),

      [9].   About, MU Faculty Council on University Policy, Univ. Mo., (last visited Nov. 16, 2020).

     [10].   Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination from the Univ. Mo. Fac. Council (Apr. 9, 2020) [hereinafter Open Letter],

     [11].   Id.

     [12].   Id. 

     [13].   Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1245–46, 1314 (1993).

     [14].   Id. at 1247–48. 

     [15].   A partial list includes: Robert S. Chang, Disoriented: Asian Americans, Law, and the Nation-State (1999); Neil Gotanda, New Directions in Asian American Jurisprudence, 17 Asian Am. L.J. 5 (2010); Frank H. Wu, The Arrival of Asian Americans: An Agenda for Legal Scholarship, 10 Asian L.J. 1 (2003).  Other works are cited herein. 

     [16].   Elbert Lin, Identifying Asian America, 33 Sw. U. L. Rev. 217, 218, 256 (2004).

     [17].   Symposium, In Honor of Neil Gotanda, 4 Asian L.J. 1 (1997); Symposium, Reigniting Community: Strengthening the Asian Pacific American Identity, 3 U.C. Irvine L. Rev. 801 (2013); Symposium, The Long Shadow of Korematsu, 40 B.C. L. Rev. 1 (1998).  The Asian American Law Journal, formerly, the Asian Law Journal, holds an annual spring symposium and lecture.  About This Journal, Asian Am. L.J., (last visited Nov. 16, 2020).

     [18].   E.g., John Hayakawa Torok, Asian American Jurisprudence: On Curriculum, 2005 Mich. St. L. Rev. 635, 636–37; Leti Volpp, Rethinking Asian American Jurisprudence, 10 Asian L.J. 51, 53–56 (2003).  Teachers of a course devoted to the subject have shared their syllabi and reading lists.  E.g., Robert S. Chang, Syllabus: Asian Americans and the Law, 10 Asian L.J. 105 (2003); Gabriel J. Chin, Syllabus: Asian Pacific Americans and the Law, 10 Asian L.J. 115 (2003); Leti Volpp, Syllabus: Asian Pacific Americans and the Law, 10 Asian L.J. 97 (2003).

     [19].   Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2323–26 (1989); Steven H. Shiffrin, Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 Cornell L. Rev. 43, 44–45 (1994).

     [20].   Chang, supra note 13, at 1244.

     [21].   Id. at 1244, 1299.

     [22].   Id. at 1299.

     [23].   Margaret (H.R.) Chon, On the Need for Asian American Narratives in Law: Ethnic Specimens, Native Informants, Storytelling and Silences, 3 UCLA Asian Pac. Am. L.J. 4, 21 (1995).  “[T]he boy was on the same little league baseball team that my son had been on—and that my husband had coached.”  Id

     [24].   Chris K. Iijima, The Era of We-construction: Reclaiming the Politics of Asian Pacific American Identity and Reflections on the Critique of the Black/White Paradigm, 29 Colum. Hum. Rts. L. Rev. 47, 47 (1997).

     [25].   See, e.g., Daniel A. Farber & Suzanna Sherry, Telling Stories out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807, 808 (1993); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1745 (1989); Mark Tushnet, The Degradation of Constitutional Discourse, 81 Geo. L.J. 251, 251 (1992); see also infra note 29.

     [26].   By way of one notable example, Professor Susan Estrich begins her article with the following narrative:

Eleven years ago, a man held an ice pick to my throat and said: “Push over, shut up, or I’ll kill you.” . . . 

I ended up in the back seat of a police car.  I told the two officers I had been raped by a man who came up to the car door as I was getting out in my own parking lot (and trying to balance two bags of groceries and kick the car door open).  He took the car, too.

Susan Estrich, Rape, 95 Yale L.J. 1087, 1087 (1986).  In a law review colloquy entitled “Human Voice in Legal Discourse,” Professor Mark Yudof describes Estrich’s article as “an excellent and moving work on rape.”  Mark G. Yudof, ‘Tea at the Palaz of Hoon’: The Human Voice in Legal Rules, 66 Tex. L. Rev. 589, 590 (1988).  But regarding Estrich’s experience of being raped, he asks, “In what sense, if any, is her personal story relevant to her legal scholarship?” Id. at 598.  Yudof concludes, “Estrich’s diverse uses of the human voice do not contribute much to her elaboration of what the law of rape should be.”  Id. at 599.

     [27].   Richard A. Posner, The Skin Trade, New Republic, Oct. 13, 1997, at 40, 43 (reviewing Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (1997)).

     [28].   Martha Minow, Surviving Victim Talk, 40 UCLA L. Rev. 1411, 1430 (1993).

     [29].   Farber & Sherry, supra note 25, at 808, 809, 830–31.  In addition, they counsel that storytellers also need “to include an analytic dimension in their work.”  Id. at 809.  The two authors further elaborated on their views, in Daniel A. Farber & Suzanna Sherry, The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and Truth, 46 Stan. L. Rev. 647 (1994), and Farber & Sherry, supra note 27.  Farber and Sherry’s approach is not without critics.  E.g., Kathryn Abrams, How to Have a Culture War, 65 U. Chi. L. Rev. 1091, 1092 (1998) (reviewing Farber & Sherry, supra note 27); Jane B. Baron, Resistance to Stories, 67 S. Cal. L. Rev. 255, 256 (1994); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665, 667 (1993); William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607, 609–10 (1994); Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 Geo. L.J. 1845, 1845 (1994); Alex M. Johnson, Jr., Defending the Use of Narrative and Giving Content to the Voice of Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 Iowa L. Rev. 803, 806 (1994).

     [30].   Farber & Sherry, supra note 25, at 808, 819, 822, 824, 827, 838.

     [31].   About, MU Faculty Council on University Policy, supra note 9.

     [32].   For my part also, I was interested in the details, as a university employee, especially one who might be categorized as a member of the so-called “Chinese, Korean, and other Asian communities,” and as a parent of a university student.

     [33].   Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1285 (Me. 1987) (“We do not provide compensation for the hurt feelings of the supersensitive plaintiff—the eggshell psyche.”); see also Frank S. Ravitch, Hostile Work Environment and the Objective Reasonableness Conundrum: Deriving a Workable Framework from Tort Law for Addressing Knowing Harassment of Hypersensitive Employees, 36 B.C. L. Rev. 257, 273–77 (1995) (discussing the “eggshell skull” rule in cases involving the harassment of hypersensitive employees in the workplace).

     [34].   Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir. 1985).

     [35].   I also tried to view the minutes of the faculty council meeting when the Open Letter was approved.  Although minutes of most faculty council meetings are posted on the university’s internet site, minutes of the April 9, 2020 meeting are not, as of this writing.  See Meetings and Minutes 2019–2020, Univ. Mo., (navigate to “April 9, 3:30 pm”) (last visited Nov. 16, 2020).  I exchanged emails with a staff member in the provost’s office about gaining access to the meeting’s minutes and a recording of the meeting, but without success.  A media report describing the meeting and the letter does not address the details that I sought.   Laura Evans, MU Faculty Council Puts out Letter About COVID-19 and Racism, Columbia Missourian (Apr. 10, 2020),

     [36].   Zoom Interview with Member, Univ. Mo. Fac. Council on Univ. Pol’y (July 28, 2020). 

     [37].   Farber & Sherry, supra note 25, at 833.

     [38].   Id.

     [39].   Chang, supra note 13, at 1274 (footnotes omitted). 

     [40].   See id. (“[E]ven if they believe my stories, they discount them as isolated incidents.”). 

     [41].   Farber & Sherry, supra note 25, at 838–39.  They continue:

Studies by cognitive psychologists demonstrate that humans tend to overrely on atypical examples.  Because individuals assume that dramatic or easily remembered events are typical, they often overestimate the likelihood of such events.  Even when they correctly appraise a trait as typical, they overestimate its prevalence, assuming that more members of the group possess the trait than really do.  In other words, people frequently engage in what we commonly call stereotyping.  Finally, people are too quick to assume the presence of a pattern from a small number of cases.

Id. at 839 (footnotes omitted).

     [42].   E.g., Peter Aitken, Asian Americans Reported Hundreds of Racist Acts in Last Week, Data Shows, Fox News (Mar. 27, 2020), (“Asian Americans reported more than 650 racist acts over the last week in the wake of coronavirus, according to new data.”); Alex Ellerbeck, Over 30 Percent of Americans Have Witnessed COVID-19 Bias Against Asians, Poll Says, NBC News (Apr. 28, 2020), (“More than 30 percent of Americans have witnessed someone blaming Asian people for the coronavirus pandemic . . . .  Sixty percent of Asian Americans, who made up about 6 percent of the survey’s respondents, told [the survey] they’ve seen the same behavior.”); Tiffany Hsu, Anti-Asian Harassment Is Surging.  Can Ads and Hashtags Help?, N.Y. Times (July 21, 2020), (“A coalition of civil rights groups recorded more than 2,100 incidents in 15 weeks . . . .”).

     [43].   Danielle Wallace, Texas Man Accused of Stabbing Asian Family over Coronavirus Could Face FBI Hate Crime Charge, Fox News (Apr. 2, 2020), (“A man who allegedly tried to kill an Asian family [including a 2- and 6-year-old] inside a Texas supermarket last month to prevent them from spreading the coronavirus could be charged by the FBI for a hate crime, according to reports.”). 

     [44].   Ewan Palmer, New York Police Investigating Two Alleged Coronavirus-Inspired Hate Crimes Occurring on Same Day, Newsweek (Mar. 13, 2020),

     [45].   Id.

     [46].   Sabrina Tavernise & Richard A. Oppel Jr., Spit on, Yelled at, Attacked: Chinese-Americans Fear for Their Safety, N.Y. Times (June 2, 2020),

     [47].   Kashmira Gander, Suspected New York Coronavirus Hate Crime Investigated After Man Sprays Air Freshener at Asian Passenger, Newsweek (Mar. 6, 2020),

     [48].   Tavernise & Oppel, supra note 46.  Asian American health care workers have not been spared.  Tracy Jan, Asian American Doctors and Nurses Are Fighting Racism and the Coronavirus, Wash. Post (May 19, 2020),

     [49].   Ewan Palmer, Asian Woman Allegedly Attacked in New York Subway Station for Wearing Protective Mask, Newsweek (Feb. 5, 2020),

     [50].   Jacob Henry & Olivia Bensimon, Victim of Possible Coronavirus Hate Crime in Queens Speaks Out, N.Y. Post (Mar. 14, 2020),; Palmer, supra note 44.

     [51].   Tavernise & Oppel, supra note 46.

     [52].   Perhaps perpetrators in Asia proper are more discriminating.  See List of Incidents of Xenophobia and Racism Related to the COVID-19 Pandemic, Wikipedia, (last visited Nov. 16, 2020) (reporting that natives of Wuhan, where the virus originated, were turned away from hotels in China, and establishments in Japan and Korea displayed signs saying, “No Chinese Allowed”).

     [53].   See Chang, supra note 13, at 1288–1303 (discussing “formal expressions of nativistic racism” in U.S. immigration, naturalization, and voting rights laws).

     [54].   Open Letter, supra note 10 (emphasis added).

     [55].   Id. (emphasis added).

     [56].   About, MU Faculty Council on University Policy, supra note 9.

     [57].   Open Letter, supra note 10 (emphasis added). 

     [58].   Highlighting the distinction between the two subgroups is the presence at some university campuses of separate organizations for both (i) international students from an Asian country and (ii) American students of that national origin.  For example, at The Ohio State University, contrast OSU KISO (Korean Int’l Student Organization / 한인학생회), Facebook,, with Korean Student Association at The Ohio State University, Facebook,

     [59].   Open Letter, supra note 10.

     [60].   Zoom Interview, supra note 36.  For a few of the persons, my contact did not know of their nationality or immigration status.

     [61].   One wonders if the “Chinese, Korean, and other Asian communities on our campus and in our community” and “Chinese, Korean or other Asian friends and colleagues” phrasing would include the president of the university system and then interim chancellor of the campus, whose curriculum vitae notes his immigration from South Korea, United States citizenship, and top secret security clearance, Mun Young Choi, (last visited Nov. 16, 2020), or the campus provost, who one media report describes as “Indian-American,” Indian-American Appointed Provost at University of Missouri, News India (July 23, 2018),

     [62].   I would opine that perpetrators whose actions lead to what could accurately be described as “incidents of discomfort and discrimination” do not stop to first confirm distinctions between nationals of countries in Asia who are stateside and U.S. nationals of Asian descent. 

     [63].   Other, Merriam-Webster, (navigate to “Is other a verb?”) (last visited Nov. 16, 2020).

     [64].   Id.

     [65].   See Robert S. Chang, Passion and the Asian American Legal Scholar, 3 Asian L.J. 105, 107 (1996) (“Do ‘we’ exist only as an ‘imagined community’?”);Torok, supra note 18, at 649 (“Defining this category is not simple.  But it is perhaps also not impossible.  ‘Asian American’ self-definition involves racial, national, and geographic categories, as well as gender, sexual, migration, and class categories.”). 

     [66].   K.G. Jan Pillai, Affirmative Action: In Search of a National Policy, 2 Temp. Pol. & Civ. Rts. L. Rev. 1, 31 (1992) (citing Harry H.L. Kitano, Asian-Americans: The Chinese, Japanese, Koreans, Pilipinos, and Southeast Asians, 454 Annals Am. Acad. Pol. & Soc. Sci. 125, 127, 137 (1981)).

     [67].   See, e.g., Sofia Lotto Persio, South Korea Angers Japan with “Unacceptable” Military Drills near Disputed Islands, Newsweek (Dec. 18, 2017, 8:05 AM), (reporting “a history of distrust” between Japan and South Korea).

     [68].   See, e.g., Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement (with Japan and the United States in Mind), 27 Mich. J. Int’l L. 1, 2526 (2005) (discussing confrontation between social classes and conflict between the provincial regions, in South Korea).

     [69].   See Susan Taing, Comment, Lost in the Shuffle: The Failure of the Pan-Asian Coalition To Advance the Interests of Southeast Asian Americans, 16 Berkeley La Raza L.J. 23, 31 (2005) (discussing pan-Asian unity, identity, and collective).  Another part of the complexity is that of self-identification.  As two commentators note,

Do individuals from different Asian groups view themselves as “Asian Americans”? . . . American-born Japanese and Chinese Americans are the most likely to think of themselves as Asian Americans, while recent immigrant groups greet pan-Asian movements with indifference or hostility.  Recent Chinese immigrants tend not to see themselves as Asian Americans—or indeed, as Americans at all—but as Chinese.

Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 Stan. L. Rev. 855, 895 (1995).

     [70].   Open Letter, supra note 10. 

     [71].   Chief among them was the President.  See Barnini Chakraborty, Trump Doubles Down on ‘China Virus,’ Demands To Know Who in White House Used Phrase ‘Kung Flu, Fox News (Mar. 18, 2020), (“President Trump on Wednesday continued to call COVID-19, the ‘China virus,’ and said he doesn’t think labeling the novel coronavirus is racist or puts Asian-Americans at risk.”); Tavernise & Oppel, supra note 46 (“Mr. Trump and his Republican allies are intent on calling the coronavirus ‘the Chinese virus,’ . . . .”). 

     [72].   Complaint at 2, Missouri ex rel. Schmitt v. China, No. 1:20-cv-00099 (E.D. Mo. Apr. 21, 2020). 

     [73].   Id. at 3. 

     [74].   Id. at 2. 

     [75].   Id. at 17–18. 

     [76].   Id. at 18–29. 

     [77].   Frank Morris, Missouri Sues China, Communist Party over the Coronavirus Pandemic, NPR (Apr. 21, 2020, 8:30 PM),

     [78].   With respect to the culpability of Chinese officials in the spreading of the pandemic and the global crisis, there appears to be a “more nuanced and complex finding of what Chinese officials did wrong in January [2020].”  Edward Wong et al., Local Officials in China Hid Coronavirus Dangers from Beijing, U.S. Agencies Find, N.Y. Times (Sept. 17, 2020),  According to U.S. intelligence agencies:

Officials in Beijing were kept in the dark for weeks about the potential devastation of the virus by local officials in central China . . . .

. . . . 

[A new U.S. intelligence report] does not contradict the Trump administration’s criticism of China, but adds perspective and context to actions—and inactions—that created the global crisis.  

. . . . 

. . . [The report] still supports the overall notion that Communist Party officials hid important information from the world, U.S. officials said. . . .  


     [79].   See John B. Bellinger III, Opinion, Suing China over the Coronavirus Won’t Help.  Here’s What Can Work., Wash. Post (Apr. 23, 2020, 7:51 PM), (“These suits are likely to be dismissed because foreign governments enjoy immunity from suit in U.S. courts under the Foreign Sovereign Immunities Act.”); Morris, supra note 77 (“‘A sovereign is not supposed to sue a sovereign, and that’s what’s going on here,’ says Lea Brilmayer, professor of international law at Yale Law School.”).

     [80].   See Benjamin Fearnow, Missouri Files Lawsuit Against China over Coronavirus, GOP Lawmakers Lead First State ‘Negligence’ Claims, Newsweek (Apr. 21, 2020, 4:56 PM), (referring to speculation that “the GOP-led move is an election year stunt”).  Appointed as Missouri’s Attorney General to fill a vacancy in 2018, Eric Schmitt won election in his own right on November 3, 2020.  Dori Olmos, Republican Eric Schmitt Wins Missouri Attorney General Race, KSDK-TV (Nov. 4, 2020, 6:32 AM),  Schmitt defeated his Democratic opponent by over 20 percentage points, carrying all but four of the state’s 114 counties and one independent city.  2020 Missouri Attorney General Election Results, Springfield News-Leader (Nov. 7, 2020),

     [81].   See Catie Edmonson, Faced with Crisis and Re-election, Senate Republicans Blame China, N.Y. Times (July 9, 2020), (“Fighting for their political lives amid twin domestic crises—a pandemic that has battered the economy—vulnerable Republican senators running for re-election are working to divert voters’ gazes half a world away and make their races a referendum on China.”).

     [82].   Id.

     [83].   According to census estimates, persons identified as “Asian alone” comprise 2.2 percent of Missouri’s population, and “Native Hawaiian and Other Pacific Islander alone” comprise 0.2 percent.  Missouri, U.S. Census Bureau, (last visited Nov. 16, 2020).  If indeed the anti-Chinese message resonates with people in Missouri, then Missourians of Asian descent are on notice.  The “incidents of discomfort and discrimination” that occurred in mid-Missouri fueled by COVID-19 may be only the beginning.  In the years to come, continuing tension with China, or open conflict with North Korea, would make some Missourians more vulnerable to anti-Asian American actions.

     [84].   United States v. Ebens, 800 F.2d 1422, 1427 (6th Cir. 1986).

     [85].   Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1928 (1993) (emphasis added).

     [86].   Over the years, my friend and I have discussed this story a few times.  Most recently, I asked him to confirm the details.

     [87].   See Farber & Sherry, supra note 25, at 833 (“(1) If you had been watching, this is what you would have seen . . . .  The first standard is the customary test for the truth of a description of events.”). 

     [88].   Hearsay, Webster’s Third New International Dictionary of the English Language Unabridged (2002).

     [89].   Fed. R. Evid. 805. 

     [90].   Id. 801(c)(1).

     [91].   Id. 801. 

     [92].   Id. 803. 

     [93].   Id. 807. 

     [94].   See David McCartney, Temporary Housing: Not Much, But It’s Home, Spectator (Jan. 2010),

     [95].   Richard Halloran, Seoul Students Clash with Police As AntiPark Protests Mount, N.Y. Times (Nov. 16, 1973),

     [96].   Carter J. Eckert et al., Korea Old and New: A History 317 (1990); see Andrew C. Nahm, Introduction to Korean History and Culture 177-78 (1993) (stating that during the Japanese occupation, Koreans were “put under a harsh, military rule” and “humiliated and mistreated”).  Professor Chon related a part of her father’s recollections of the experience:

[M]y father told me how his mother had been tortured by the equivalent of intelligence agents in Japan-occupied Korea in the 1930’s. My grandfather had been hiding from the Japanese authorities. One night, my father woke up to find his mother gone and a Japanese soldier looking down at him.

Chon, supra note 23, at 26 n. 122.

     [97].   Farber & Sherry, supra note 25, at 849 (“[T]he emotive force of the stories is seen as [the storytellers’] primary appeal.  In our view, however, emotive appeal is not enough to qualify as good scholarship.”). 

     [98].   Minow, supra note 28, at 1413. 

     [99].   E.g., Frank H. Wu, Yellow: Race in America Beyond Black and White 79 (2002) (“[E]veryone with an Asian face who lives in America is afflicted by the perpetual foreigner syndrome.”); see Neil Gotanda, Asian American Rights and the “Miss Saigon Syndrome,” in Asian Americans and the Supreme Court: A Documentary History 1087, 1096 (Hyung-Chan Kim ed., 1992) (“[T]here is the . . . presumption that [Asian Americans] are foreigners; or, if they are U.S. citizens, then their racial identity includes a foreign component.”).

   [100].   E.g., Terri Yuh-lin Chen, Comment, Hate Violence As Border Patrol: An Asian American Theory of Hate Violence, 7 Asian L.J. 69, 82 (2000); Kelsey Inouye, Note, Asian Americans: Identity and the Stance on Affirmative Action, 23 Asian Am. L.J. 145, 165 (2016).

   [101].   E.g., Chang, supra note 13, at 1318 n.403 (“I know that my future children, and their children, will never be Americans.  They will always be Asian Americans.”); Kevin Shawn Hsu, Note, Empowerment, Discrimination, and the Façade of Leadership: Asian American Political Elites’ Failed Assimilationist Strategy, 14 Asian Am. L.J. 85, 105 (2007) (referring to “the societal belief that Asian Americans are culturally alien and will never be ‘real Americans’”); see Leti Volpp, Impossible Subjects: Illegal Aliens and Alien Citizens, 103 Mich. L. Rev. 1595, 1625 (2005) (reviewing Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004)) (discussing the suggestion that “Asian Americans, as defined as antithetical to American citizenship, can never be fully assimilated into the American nation”).

   [102].   E.g., Chang, supra note 13, at 1259 & n.78, 1275; Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 24, 55 (1994); Miranda Oshige McGowan & James Lindgren, Testing the “Model Minority Myth, 100 Nw. U.L. Rev. 331, 359–60 (2006); Note, supra note 85, at 1931.

   [103].   Note, supra note 85, at 1943.

   [104].   Chang, supra note 13, at 1312. 

   [105].   See Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 Yale L.J. 923, 923 (1988) (reviewing Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1987)) (describing race as America’s “oldest and most intractable  problem”).

   [106].   Hsu, supra note 42.

   [107].   In the spring of 2020, both houses of Congress introduced a resolution “[c]ondemning all forms of anti-Asian sentiment as related to COVID-19.”  S. Res. 580, 116th Cong. (2020); H.R. Res. 908, 116th Cong. (2020).  As of this writing, the Senate resolution is pending in its Committee on the Judiciary.  S. Res. 580,  The House passed its resolution by a vote of 243 Yeas, 164 Nays, 1 Present, and 23 Not Voting.  H.R. Res. 908,  The approved House resolution:

(1) calls on all public officials to condemn and denounce any and all anti-Asian sentiment in any form;

. . . .

(3) condemns all manifestations of expressions of racism, xenophobia, discrimination, anti-Asian sentiment, scapegoating, and ethnic or religious intolerance;

(4) calls on Federal law enforcement officials, working with State and local officials –

(A) to expeditiously investigate and document all credible reports of hate crimes and incidents and threats against the Asian-American community in the United States;

. . . .

(C) to hold the perpetrators of those crimes, incidents, or threats accountable and bring such perpetrators to justice . . . .

H.R. Res. 908, Senate version of the resolution is virtually identical to that of the House.  S. Res. 580,

   [108].   See supra text accompanying notes 72–83.

   [109].   See Tavernise & Oppel, supra note 46.

   [110].   See, e.g., Cynthia Kwei Yung Lee, Beyond Black and White: Racializing Asian Americans in a Society Obsessed with O.J., 6 Hastings Women’s L.J. 165, 170–71 (1995); Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 229 (1995); Janine Young Kim, Note, Are Asians Black?: The Asian-American Civil Rights Agenda and the Contemporary Significance of the Black/White Paradigm, 108 Yale L.J. 2385, 2385–86 (1999).

   [111].   See Chang, supra note 13, at 1296–98 (discussing the Chinese Exclusion Acts); Recent Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889), 3 Harv. L. Rev. 136, 136 (1889) (discussing the Supreme Court’s decision upholding the constitutionality of the Exclusion Act of 1888); see also Recent Case, United States v. Ju Toy, 198 U.S. 253 (1905), 19 Harv. L. Rev. 60, 60-61 (1905) (discussing the Court’s holding in Ju Toy that under the Chinese Exclusion Act of 1894, as amended, the executive branch’s decision denying admission to “a Chinaman who alleged that he was a native-born citizen of the United States returning after a temporary absence” was not reviewable by the federal courts).

   [112].   See, e.g., Eric L. Muller, American Inquisition: The Hunt for Japanese American Disloyalty in World War II (2007).

   [113].   See, e.g., Eric L. Muller, Free To Die for Their Country: The Story of the Japanese American Draft Resisters in World War II (2001).

   [114].   Both defendants, Ebens and Nitz, pled guilty to manslaughter, and the trial judge sentenced each to three years’ probation, a $3,000 fine, and court costs.  The Asian American community expressed outrage.  Federal charges were brought against the two.  Nitz was acquitted; Ebens was convicted and sentenced to twenty-five years in prison.  See Denny Chin & Kathy Hirata Chin, Asian Americans and the Law, 11 Jud. Notice 6, 18 (2016).  On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed and remanded.  United States v. Ebens, 800 F.2d 1422, 1442 (6th Cir. 1986).  The case was moved from Detroit to Cincinnati for retrial.  “In voir dire, the vast majority of the prospective jurors answered that they had never met an Asian American person.  This time, Ebens was acquitted, as the jury was not persuaded that race was a motivating factor.”  Chin & Chin, supra, at 18.

   [115].   See United States, U.S. Census Bureau, (last visited Nov. 16, 2020) (indicating population estimates of persons identified as “Asian alone” at 5.9 percent of the U.S. total population, and “Native Hawaiian and Other Pacific Islander alone” at 0.2 percent). 

   [116].   Neil Gotanda, Chen the Chosen: Reflections on Unloving, 81 Iowa L. Rev. 1585, 1592 (1996) (stating that “Asian American culture may defy definition”); Hsu, supra note 101, at 94 (stating that the Asian American community in the late 1960s to the early 1980s “lacked the racial and ethnic cohesion of a homogenous ‘Asian American culture’ necessary to successfully execute a cultural nationalist project”).

   [117].   Eric Liu, The Accidental Asian: Notes of a Native Speaker 79 (1998) (quoting an unnamed Asian American activist).

   [118].   Id.

By Itané O. Coleman 

On November 21, 2006, Kathryn Johnston was ninety-two. Police entered her home. They shot her six times. Killing her.[1]

On May 16, 2010, Aiyana Jones was seven. Police entered her grandmother’s home. They shot the child while sleeping. Killing her.[2]

Though Black men are often the face of police violence for a number of reasons, Black women and girls are susceptible to violence as well. Black women are only 13 percent of the female population, but account for 28 percent of unarmed deaths in the U.S.[3] The rise of campaigns, such as #SayHerName and #BlackLivesMatter, have attempted to curtail ignorance surrounding violence against Black women and girls, but their stories remain on the fringes of justice and accountability.

Since 2015, about 250 women have been fatally shot by the police in their homes or place of residence.[4] At least forty-eight of those women were Black,[5] and Breonna Taylor was one of them. The fatal events leading to her death are a viable starting point for noting the implications of a contributor to the unarmed deaths of Black women: no-knock warrants.

On March 13, 2020, plain-clothed police officers executed a no-knock search warrant, to enter Taylor’s Louisville, Kentucky, apartment.[6] Though the actual location officers were looking for was more than ten miles away from Taylor’s home,[7] they were under the belief that her apartment was being used for drugs. Taylor and Kenneth Walker, her boyfriend, were asleep when they heard banging at the door.[8] Fearing that their home was being burglarized, Walker grabbed a legal firearm and fired one shot in self-defense, injuring an officer.[9] The officers’ response to Walker’s warning shot manifested in the form of twenty-two rounds, eight of which fatally wounded Taylor.[10] No drug evidence was found[11] and the suspect the officers were looking for was in police custody at the time Taylor’s home was raided.[12]

As a result of these events, the Louisville Metro Council voted 26-0 in favor of Breonna’s Law, an ordinance that bans the enforcement of no-knock warrants. Louisville Metro Police Detective Joshua Haynes was also placed on administrative leave for executing the warrant that led to Taylor’s death,[13] but no officers have been charged for this unarmed killing. Many states have proposed bans on no-knock warrants as an attempt of policing reform. One victim of a no-knock raid gone wrong stated, “This is about race. You don’t see SWAT teams going into a white-collar community, throwing grenades into their homes.”[14] The 2013 death of Alberta Spruill as a result of police breaking into her apartment and setting off grenades is one of countless examples of Black lives being treated as criminal and disposable.[15]

According to David Alan Sklansky, a Professor of Criminal Law at Stanford, no-knock warrants disproportionately impact Black people and other people of color.[16] This policing tactic is a racialized product of the War on Drugs.[17] During the 1960s and 70s, no-knock warrants were disproportionately enforced in Black communities, reaffirming the perception that Blackness was synonymous with criminality.[18] In fact, no-knock warrants became so problematic that Congress repealed the statute authorizing their use due to reports of mistaken violent, and often illegal raids.[19] Despite the problematic nature of no-knock warrants, Supreme Court cases in the 1990s and early 2000s paved the way for their reemergence.[20]

In deciding the parameters of no-knock warrants, the Supreme Court ruled that the Fourth Amendment incorporates a knock-and-announce requirement.[21] In Wilson v. Arkansas,[22] the Court held that knock and announce is a factor in a reasonableness test of the Fourth Amendment, but not a requirement.[23] The Court did not specify instances that would make unannounced entries reasonable.[24] Instead, it delegated the task of determining the reasonableness of unannounced entries to state courts,[25] opening the door for unpredictable enforcement of no-knock warrants. In Richards v. Wisconsin,[26] the Supreme Court expanded the likelihood of unannounced entries by “explicitly approv[ing] of states giving magistrates the authority to issue no-knock warrants.”[27] Richards became the national standard for upholding searches conducted with no-knock warrants[28] because the Court imposed a reasonable suspicion standard that would allow officers to utilize discretion in announcing their presence.[29] The Court’s reasonableness standard “amounted to reasonable suspicion, meaning that a relatively low quantum of evidence was necessary for an action.”[30]

Though most states have a knock-and-announce statute on the books, state and federal courts often interpret exceptions to these statutes, such as the destruction of evidence and danger to police officers.[31] As a result of widespread judicial discretion regarding these warrants, they are routinely issued and are easier to get than most people would think.[32] Coincided with the rate of gun ownership in this country, no-knock warrants tend to result in violent and fatal outcomes.[33] As a result, public recognition of no-knock warrants as an aggressive and intrusive practice has grown. [34] Part of the problem is that no-knock warrants are often executed at night and fail to ensure the safety of civilians and officers.[35]

The death of Breonna Taylor is one of many examples of unarmed Black women impacted by no-knock warrants. Racialized police tactics require an understanding of the ways in which Black and Brown lives are balanced against police discretion. More often than not, the loss of Black and Brown lives do not outweigh implicit bias in U.S. policing. Though the path to racial injustice is long, 2020 has seen a heightened demand for learning and change. Thus, the death of Breonna Taylor should encourage interrogation of no-knock warrants and equitable reform.[36]

[1] Regina Jennings, From Slavery to Contemporary Genocide: A Literary and Linguistic Analysis of Why American Blacks Deserve Reparations, 18 Race, Gender, and Class 73, 75 (2011).

[2] 7-Year-Old Girl Accidentally Shot By Swat Team, ACLU, (last visited October 22, 2020).

[3] Marisa Iati et al., Nearly 250 Women Have Been Fatally Shot by Police Since 2015, Wash. Post, (Sept. 4, 2020),

[4] Id.

[5] Id.

[6] Aliss Higham, Breonna Taylor: Who Was Breonna Taylor? What Happened to Her?, Express, (June 5, 2020),

[7] Pilar Melendez, Louisville Cop Placed on Leave After Applying for Search Warrant in Breonna Taylor Case, Daily Beast, (June 10, 2020),

[8] Id.

[9] Id.

[10] Higham, supra note 6.

[11] David A. Sklansky & Sharon Driscoll, Stanford’s David Sklansky on the Breonna Taylor Case, No-Knock Warrants, and Reform, Stan. L. Sch., (Sept. 28, 2020),

[12] Melendez, supra note 7.

[13] Melendez, supra note 7.

[14] Brian Dolan, To Knock or Not to Knock? No-Knock Warrants and Confrontational Policing, 93 St. John’s L. Rev. 201, 226 (2019).

[15] Jennings, supra note 1, at 75.

[16] Sklansky & Driscoll, supra note 11.

[17] Dolan, supra note 14, at 211.

[18] Carl Suddler, The Color of Justice Without Prejudice: Youth, Race, and Crime in the Case of the Harlem Six, 57 Am. Stud. 57, 58 (2018).

[19] Dolan, supra note 14, at 211.

[20] Id. at 212.

[21] Adina Schwartz, Homes as Folding Umbrellas: Two Supreme Court Decisions on “Knock and Announce,25 Am. J. Crim. L. 545, 546 (1998).

[22] 514 U.S. 927 (1995).

[23] Schwartz, supra note 21, at 550.

[24] Id.

[25] Id.

[26] 520 U.S. 385 (1997).

[27] Dolan, supra note 14, at 213.

[28] Id.

[29] See Richards, 520 U.S. at 394.

[30] David M. Jones, What Does “Knock And Announce” Mean? An Analysis of Wilson v. Arkansas and Its Progeny, 26 Am. J. Crim. Just. 287, 293 (2002).

[31] Dolan, supra note 14, at 214.

[32] See id. at 223–24.

[33] Id. at 220.

[34] Id. at 207.

[35] Id. at 216.

[36] Several cities, such as San Antonio, Texas, and Santa Fe, New Mexico, have followed Louisville’s lead in banning no-knock warrants. Ray Sanchez, Laws Ending No-Knock Warrants After Breonna Taylor’s Death Are A ‘Big Deal’ But Not Enough, CNN, (October 10, 2020, 6:03 AM), Though most states allow no-knock warrants, Breonna’s Law has inspired a ban on the national level. Chantal Da Silva, Where Are No-Knock Warrants Legal? Bipartisan Bill Seeks Ban After Breonna Taylor’s Death, Newsweek., (June 12, 2020, 10:30 AM), After speaking with Taylor’s family concerning the tragedy, Senator Rand Paul introduced a bill called the Justice for Breonna Taylor Act, which if passed, would end no-knock raids in the United States. Id.

By Taylor Ey

Did the District Court Err in Granting Defendants’ Motion for Summary Judgment for Plaintiff’s Discrimination and Retaliation Claims Brought Under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981?

On May 13, 2015, the Fourth Circuit issued its published opinion in the civil case of Boyer-Liberto v. Fontainebleau Corp.  Plaintiff Reya Boyer-Liberto was previously employed at Defendant Fontainebleau Corp., as a hostess at a restaurant in the Clarion Resort Fontainebleau Hotel.  At district court, Defendant submitted a motion for summary judgment, which the district court granted because Plaintiff’s evidence of offensive conduct, two conversations with a coworker, was too vague to support her claims of discrimination and retaliation under Title VII of the Civil Rights Act (“Title VII”) or 42 U.S.C § 1981.  The Fourth Circuit, in a split decision, affirmed the district court’s decision to grant Defendant’s motion for summary judgment.

The Facts Were Insufficient to Demonstrate a Discriminatorily Hostile or Abusive Environment

To find a hostile work environment as prohibited by Title VII and 42 U.S.C. § 1981, a plaintiff must show that the workplace is “permeated” with discriminatory insult, that the discrimination alters the conditions of the work environment and the discrimination creates an abusive working environment.  Plaintiff only provided two examples demonstrating discriminatory insult.  In both cases, each on consecutive days and with the same coworker, Plaintiff was in a conversation, where she was called a “porch monkey,” a severely insulting and racially derogatory name.  However, the Fourth Circuit explained that these two instances are isolated: Together they do not demonstrate that any one else made hostile statements towards her, or that this same employee made more of the same kind of statements.  Thus,  the Fourth Circuit concluded unanimously that the Plaintiff did not demonstrate a hostile work environment under Title VII or 42 U.S.C. § 1981.

The Facts Were Insufficient to Demonstrate That Plaintiff Had an Objectively Reasonable Belief That She Was Being Subjected to Unlawful Harassment

To demonstrate retaliation, a plaintiff must how that she “responded to an employment practice that she reasonably believed was unlawful.”  In this case, Plaintiff provided two examples where a coworker, who she later found out was a restaurant manager, called her a derogatory name.  The Fourth Circuit majority thought it was unlikely that Plaintiff would have an objectively reasonable belief that she was being unlawfully harassed because Plaintiff mistook the speaker for a coworker.  Further, the fact did not lead the majority to believe that this was the type of situation that would “ripen” into a hostile environment because both incidents were isolated.  Thus, the Fourth Circuit, split 2-1, concluded that Plaintiff did not demonstrate an objectively reasonable belief required for a retaliation claim under Title VII or 42 U.S.C. § 1981.

The Fourth Circuit Affirmed the District Court’s Decision

Because the facts in the record, taken in the light most favorable to the non-movant, did not provide sufficient evidence such that a reasonable juror could find that Plaintiff was working in a hostile work environment or that Plaintiff had an objective believe that she was subjected to unlawful harassment, the Fourth Circuit affirmed the district court’s decision granting Defendants’ motion for summary judgment.

The Chief Judge Dissented in Part as to the Retaliation Claims

The Chief Judge authored a dissent, explaining that he agreed with the dissent in the case relied upon by the majority, Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  In Jordan, Judge King described that the majority’s narrow interpretation of “what constitutes a reasonable belief” that a violation of Title VII is occurring is a “Catch-22 situation.”  As the law currently stands under Jordan, the employee can either choose to report the behavior, and risk losing her job, or continue working in the hostile environment, and lose her dignity.  Under the facts in this case, the Chief Judge stated that Plaintiff could have reasonably believed that the coworker’s conduct was actionable.  Thus, the Chief Judge respectfully dissented, and would have reversed the grant of summary judgment on Plaintiff’s retaliation claims.

By: Steven Franklin

Today, in Perry v. Mail Contractors of America, Inc., the Fourth Circuit affirmed the Western District of North Carolina’s Order granting the Defendant’s Motion for Summary Judgment against a Title VII claim for wrongful termination. The Plaintiff, Craig Perry, a person of color, claimed that Mail Contractors of America, Inc. (MCA) terminated him from his position as a truck driver because of his race.

McDonnell Douglas Corp. v. Green, sets the Fourth Circuit’s framework for a claim of discriminatory discipline. To establish a prima facie case, the plaintiff must demonstrate that (1) he engaged in prohibited conduct similar to that of a person of another race, and (2) disciplinary measures enforced against him were more severe than those enforced against the other person.

First, Mr. Perry was unable to provide evidence of a truck driver receiving less punishment for an accident similar to his. Mr. Perry was terminated because he failed to reduce his speed despite having visibly hazardous road conditions directly ahead of him. Although he did show evidence of numerous other drivers in accidents that involved other vehicles, caused property damage, or resulted in traffic citations, they did not involve the kind of culpable conduct evident in Mr. Perry’s accident.

Second, there was evidence that MCA terminated an individual who was not a member of a protected class, but was involved in a similar accident shortly after Mr. Perry’s. The employees who terminated Mr. Perry were the same ones who terminated this subsequent individual. For these reasons, Mr. Perry was unable to establish a prima facie case, and the Fourth Circuit affirmed the District Court’s Order granting MCA’s Motion for Summary Judgment.