Volume 36

Race Ethics: Colorblind Formalism and Color-Coded Pragmatism in Lawyer Regulation

by Anthony V. Alfieri

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville “Unite the Right” Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholar- ship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more generally. Spoken in archetypal tropes, seen in stereotypical images, and heard in stock stories, race infects the central lawyering roles of advocate and advisor, echoing inside and outside courthouses and resounding in the rules of professional responsibility and the norms of professionalism. By turns cast in colorblind, color-coded, and color-conscious oral, written, and symbolic forms, the meaning of racial identity, racialized narrative, and racially demarcated community is both con- structed and contested in the lawyering process and in the regulation of lawyer conduct.


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