Thursday, May 21, 2015
Frank Rudy Cooper (Suffolk University Law School) has posted Always Already Suspect: Revising Vulnerability Theory (North Carolina Law Review, Vol. 93, p. 1339, 2015) on SSRN. Here is the abstract:
Martha Fineman proposes a post-identity “vulnerability” approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people’s burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary sacrifice of those overrepresented in arrest statistics for the greater good of protecting the majority from vulnerability to crime.
I argue that acknowledging relative privilege can help us analyze practices such as racial profiling. Privileges are invisible, unearned assets that automatically attach to people because an aspect of their identity is made socially normative. Because privileges can make the impact of racially targeted policing of others invisible to their holders, vulnerability theory needs to incorporate this concept if it wishes to address racial profiling. A revised vulnerability theory could then use the fact of our shared vulnerabilities and its justification of a strong state to call for extensive federal monitoring of policing. Linking vulnerability theory to analysis of privilege is a necessary precursor to such a conversation.