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98 Yale L. J. 1559 (1988-1989)
Law as Microaggression

handle is hein.journals/ylr98 and id is 1577 raw text is: Law As Microaggression Peggy C. Davist In January of 1988, the Chief Judge of the highest court of New York commissioned sixteen citizens to consider whether minorities in that state believe the court system to be biased. The answer was immediately appar- ent. With striking regularity minority people, in New York and elsewhere in the United States, report conviction that the law will work to their disadvantage. Every relevant opinion poll of which the Commission is aware finds that minorities are more likely than other Americans to doubt the fairness of the court system. Having quickly discovered evidence of a widespread minority percep- tion of bias within the courts, the Commission was left to consider its causes. The causes are not easily established. Those who perceive the courts as biased admit that incidents of alleged bias are usually ambigu- ous; that systematic evidence of bias is difficult to compile; and that evi- dence of bias in some aspects of the justice system is balanced by evidence that the system acts to correct or to punish bias in other sectors of the society. This essay places the perceptions of one minority group, black Ameri- cans, in a context that explains the source and the strength of minority conviction that courts (as well as other non-minority social institutions) are capable of bias. In terms informed by the insights of cognitive psychol- f Professor of Law, New York University. Member, New York State Judicial Commission on Minorities. Research relied upon in this essay was supported by the Filomen d'Agostino and Max E. Greenberg Research Fund of New York University School of Law and augmented by data assembled by the Judicial Commission. Opinions expressed in the essay are the author's and may not reflect the views of other Commissioners. 1. A national survey commissioned in 1977 by the National Center for State Courts reported that 49% of blacks, 34% of Hispanics and 15% of whites agree with the statement courts do not treat blacks as well as they treat whites and thought it described a serious problem that occurs often. NATIONAL CENTER FOR STATE COURTS, THE PUBLIC IMAGE OF THE COURTS 36 (1977). A 1988 New York Times/WCBS-TV News poll conducted in New York City found that 45% of whites, but only 28% of blacks, believed that judges and courts in New York City generally treat both races fairly. N.Y. Times, Jan. 19, 1988, at 1, col. 2. In the same year, a Newsday poll of black New Yorkers found that 40% believed the courts mistreat blacks all or most of the time. Newsday, Apr. 12, 1988, at 26, col. 1. A national poll, conducted in 1988 by Media General and the Associated Press, found that 40% of whites and 61% of blacks believe that minorities do not receive equal treatment in the criminal justice system. N.Y. Times, Aug. 9, 1988, at 13, col. 5. In a New York Law Journal poll, also conducted in 1988, 44% of all respondents, including 71% of blacks and 31% of whites, believed that if two people-one white, one black-are convicted of identical crimes the white de- fendant would get the lighter sentence. N.Y.L.J., May 24, 1988, at 1, col. 3. See also B. CURRAN, THE LEGAL NEEDS OF THE PUBLIC (1977); T. Tyler, Why People Follow the Law: Procedural Justice, Legitimacy and Compliance (forthcoming 1989). 1559

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