This document summarizes a presentation given on the science behind racial inequalities in the legal system. It discusses how black lives were valued during slavery through mechanisms like the 3/5 compromise and the Fugitive Slave Act. It examines how pseudoscience was used to justify slavery and argues that current issues stem from a failure to reconcile the end of the Civil War and address racial inequities. The presentation suggests exploring the historical context of racial issues to better understand current problems and their solutions.

1. 1
Black Lives Matter: A Study of the Science Behind the Veil
Presented at the University of Nevada-Las Vegas School of Law as part of the Southern
Association for the History of Medicine and Science (SAHMS) 16th annual meeting, March 17-
19, 2016
By Fernin F. Eaton1
The New York Times says the name Black Lives Matter was first used it in a “Facebook
post after George Zimmerman was acquitted ... in the killing of Trayvon Martin...The movement
gained prominence after a white police officer killed Michael Brown in Ferguson.”2
[Slide 2]
I attempt three goals today: 1) to lift one small corner of ‘the veil’ to reveal some of the
legal system’s structural misuse of science which has—and does—disadvantage people of color;
and, 2) to suggest that our current system of legal education itself contributes to those concerns
and, in fact, creates a health risk to people of color; and, 3) to suggest alternatives. [Slide 3]
My title borrows from W.E.B. DuBois, who, in 1903 in The Souls of Black Folk, offered:
“I was different from the others…shut out from their world by a vast veil…...the Negro…born
with a veil, and gifted with second-sight in this American world…”
DuBois described “the police system of the South [as] primarily designed to control
slaves” and “tacitly assumed that every white man was ipso facto a member of that police…
system ... originally designed to keep track of all Negroes…”3
[Slide 4]
1
Attorney at Law, creolelaw@gmail.com Box 61, Saint Francisville, LA 70775
http://independent.academia.edu/FerninEaton
2
One Slogan, Many Methods: Black Lives Matter Enters Politics, By John Eligon, New York Times,
November 18, 2015 http://www.nytimes.com/2015/11/19/us/one-slogan-many-methods-black-lives-
matter-enters-politics.html?hp&action=click&pgtype=Homepage&clickSource=story-
heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=2 [accessed
2/14/2016]
3
DuBois, W.E.B., The Souls of Black Folk, 1903, Ch. IX, “Of the Sons of Master and Man”, A.C.
McClure, Chicago, publisher

2. 2
We can’t speak of science without algorithms, and our founding algorithm, our baseline,
describing how much ‘black lives matter’ was the Constitution’s three-fifths clause. Fast-forward
to the 1850 Fugitive Slave Act. For the first time, slavery was federalized in that marshals and
deputies risked a $1,000 fine for refusing to execute warrants in the North on behalf of Southern
slaveholders. If the slave escaped, the officer was liable for the full value of the slave.4
Judicial
commissioners received ten dollars for issuing certificates delivering the individual to the
claimant, but only five dollars for freeing the individual.5
In a perverse way, black lives mattered significantly to federal officers, either for the risk
or reward presented by how well or ill the officer performed his duty. [Slide 5]
How much black lives mattered cumulatively is shown on the graph. Slavery had been on
a gentle increase in the years shown, until the decade between1850-1860 and the entire capital
investment in enslaved men, women and children spikes, doubling to just under $3.5 billion.
It is slight wonder that within a year of the Act’s passage, the New Orleans medical
community enlisted a Dr. Samuel Cartwright to present a paper introducing the medical and legal
communities to his coined term drapetomania6
, to describe a “disease of the mind” peculiar to
enslaved Africans of running away. “With the advantages of proper medical advice, strictly
followed, this troublesome practice ...of running away, can be almost entirely prevented.”
4
Johnson, Allen. The Constitutionality of the Fugitive Slave Acts. The Yale Law Journal 31.2 (1921):
161-182, p. 170.
5
9 Stat. at Large 462, Sec. 8; The nation’s first fugitive servant clause appeared in1643 in New England,
in addition to treaties with Delaware Indians, 1778, the 1790 Creek Treaty, and others.
6
The New Orleans Medical and Surgical Journal, May, 1851, “Report on the Diseases and Physical
Peculiarities of the Negro Race,” by Samuel A. Cartwright, M.D., Chairman of the Committee appointed
by the Medical Association of Louisiana to report on the above subject, p. 692-715

3. 3
The cause, he wrote, is the failure of owners to understand and follow the “Creator’s will
in regard to the negro” as set forth in the Pentateuch. One cure was “whipping the devil out of
them.”
It could be argued that black lives mattered most immediately before the civil war. The
value then of all enslaved men, women and children exceeded the capital investment of all other
resources combined, railroads, etc., other than the land of the country itself.7
Further, owners of that capital investment passed and enforced laws that penalized
anyone who inflicted harm on their “property.”8
In no sense do I suggest anything redemptive in
the Fugitive Slave Act, the capital investment or the laws protecting that investment, except—
except--to pose for debate the idea that it offers a record of incentivizing white behavior that
may—just may—offer scientific analysis as to why and how to train lawyers and judges to advise
and to require that police train in, and practice, less lethal encounters of all citizens today.
We will revisit the Fugitive Slave Act later.9
Historian Henry Adams said “[t]he quarrel between law and history is old, and its source
lies deep...The lawyer is required to give facts the mould of a theory; the historian need only
state facts in... sequence.”10
I’m attempting both today: to frame a theory, but one based on
sequential facts. I risk failing today both as historian and as lawyer. As Mark Mazower said,
““Historians have allowed the vagaries of intellectual fashion, and a perhaps well-founded fear
of treading on lawyers' toes, to turn the history of law into a ghetto in historical studies while the
7
Huston, James L. Calculating the Value of the Union: Slavery, Property Rights, and the Economic
Origins of the Civil War. UNC Press Books, 2003, p. 28
8
Schafer, Judith Kelleher. Slavery, the Civil Law, and the Supreme Court of Louisiana. LSU Press, 1997,
p. 28-58, “cruelty to slaves and legal intervention”
9
See, page 8ff, and the discussion of retired U.S. Supreme Court Justice John Paul Stevens
10
Henry Adams, History of the United States of America During the Administrations of Thomas
Jefferson, 1986, The Library of America, p. 632

4. 4
history of how law has been deployed in international politics remains a ghetto within a
ghetto.”11
I suggest the study of race in America is very much the study of international politics,
and thus relegates what otherwise should be a robust study of race and law to that “ghetto within
a ghetto” of academic study. We just don’t talk about race today. One reason I suggest it is a
study of international, rather than national, politics, is that we still haven’t reconciled with the
idea that two nations, with irreconcilable ideas, warred against each other for four years in the
event known as the Civil War, over a “right” to own peoples of yet entirely different nations.
One more algorithm suggests the extent to which black lives mattered, and that is the cost
in lives of combatants to free the lives of the enslaved. Some 750,000 men died12
in an event
which resulted in the freedom of some 4,000,000 men, women and children, or an algorithm of
one dead combatant for every 5.3 newly freed individuals. Freedom did not come cheap.
[Slide 6]13
We make two more stops before leaving the Civil War era. We were taught
that the heroic imagery of Lee’s surrender at Appomattox defined the end of the war. I suggest
that is a mistake. Von Clausewitz’s definition of war as a “mere continuation of policy by other
means,”14
puts the event into proper context. The two most powerful men on the American
continent, never having studied Clausewitz, nevertheless decided it was time to return the
question of policy to the civilian, i.e., political arena. [Slide 7]
11
Mazower, Mark. "The strange triumph of human rights, 1933–1950." The Historical Journal 47.02
(2004): 379-398, p. 380
12
Hacker, J. David. "A census-based count of the civil war dead." Civil War History 57.4 (2011): 307-
348.
13
CIVIL WAR: APPOMATTOX, 1865. /nThe Surrender of General Lee to General Grant, 9 April 1865.
Oil on canvas by Louis Guillaume, 1867.
14
Von Clausewitz, Carl. On war. Vol. 1. London, N. Trübner & Company, 1873., p. 12, Ch.1, No. 24.

5. 5
One of the best—but most ominous--statements I’ve found as to the war’s effect comes
from an unlikely, but contemporaneous source, Edward Pollard, whose work “The Lost Cause”
surfaced barely a year after war’s end. Pollard, former editor of the Richmond Examiner, and
strident white supremacist, presciently described how we arrived at today’s challenges.
Pollard wrote: The South “must submit ... to what the war has properly decided. But the
war properly decided only what was put in issue: the restoration of the Union and the excision of
slavery...the war did not decide negro equality; it did not decide negro suffrage...and these things
which the war did not decide, the Southern people will still cling to, still claim, and still assert
...There may not be a political South. Yet there may be a social and intellectual South.”
One need only read the last three of the 700-plus pages to see that Pollard described the
DNA of today’s Tea Party. Why? Pollard describes, for the first time, the disembodiment of a
political movement from geography, i.e., what began April 12, 1861 with Gen. P.G.T.
Beauregard’s firing on Fort Sumter--ostensibly to protect Southern borders from reinforcements
and supplies reaching the Federal fort--morphed into a geography-free movement, to sprout its
seeds in fertile soil wherever they might take root. It is a “social and intellectual South” which
Pollard described, not a geographic South, but a political movement which can exist anywhere
irrespective of borders: Blue state, red state, and, today, largely disembodied enclaves populated
by self-segregating whites who abandoned their former geographies of inner cities and school
districts as they “fell” to federal court de-segregation orders.15
We leave the Civil War era with another example of “science” in court, consistent with
Pollard’s statement that the war decided neither suffrage nor equality. A year after war’s end, a
15
See, e.g., Wilson, William Julius. The declining significance of race: Blacks and changing American institutions.
University of Chicago Press, 2012.

6. 6
man was tried for voter fraud in Michigan,16
where only white men could vote. A witness who
had practiced as a physician and surgeon for 43years testified that he was acquainted with the
races, Indian, negro, mulatto, etc.; that he had examined the prisoner, and it was his professional
opinion that there was some African blood in the defendant; that the only clear indication of
African blood is a peculiarity in the cartilages of the nose, and this was an infallible indication.
The judge dissenting from the majority said, “If this be the correct rule, we had better
have the constitution amended, with all speed...to authorize the election or appointment of ...
nose inspectors, to attend the election polls in every township and ward ... to prevent illegal
voting.”
Time permits only a cursory, but necessary, acknowledgment of Ida B. Wells Barnett,
whose anti-lynching campaign began in May 1892 in Memphis. Ida B. Wells was marginalized
by DuBois and other black males. Hazel Carby17
takes DuBois and current (male) black leaders
to task, saying DuBois’ “complete failure to imagine black women as intellectuals and race
leaders...remains a characteristic of the work of contemporary African American male
intellectuals.” Gender is part of the science behind the veil. [Slide 8]
Two weeks after Ms. Wells editorialized against lynching, Homer Plessy boarded a train
in New Orleans, and we received ‘separate but equal’ until the Court’s Brown v. Board decision
ordered desegregation of Topeka’s schools. Federal troops, not used since Reconstruction,
occupied American cities.
‘White flight’ initially meant moving merely outside either the school district’s or the
court’s boundary. As in Plato’s Crito, those who engaged in “white flight” implicate the ethical
16
People v. Dean, 14 Mich. 406, 1866 WL 2866 (Mich.) 1866
17
Carby, Hazel V.. Race men. Harvard University Press, 2009.

7. 7
question by having voted with their feet. Plato describes Socrates’ explanation why he is turning
down offers to assist with his escape from jail, and why he accepts his imminent death rather
than attempting to flee:
“...the laws will say: ‘... we further proclaim to any Athenian by the liberty which
we allow him, that if he does not like us when he has become of age and has seen the
ways of the city, and made our acquaintance, he may go where he pleases and take his
goods with him.
“None of us laws will forbid him or interfere with him. Anyone who does not like
us and the city, and who wants to emigrate to a colony or to any other city, may go where
he likes, retaining his property.
“But he who has experience of the manner in which we order justice and
administer the state, and still remains, has entered into an implied contract that he will do
as we command him.’ ”18
Question: Is our relocation from a school district--or an urban area--an act of conscience or a
violation of the implied “social contract.” i.e., the basis of our Founding Fathers’ bedrock
charters?
Rather than demonizing those who participate either in ‘white flight’ or in the ‘black lives
matter’ movement, by stigmatizing either ‘side’ with a label—or ‘veil’—pejoratively demeaning
both their actions as well as their motivations, I suggest we put all actions to the test by which
our Founding Fathers embarked on a novel experiment in self-government.
Whether we use Thomas Hobbes’ theory of ‘implied consent,’ (which seems to take its
cue from Plato’s Crito) or Hugo Grotius’ and John Locke’s theories of a “common judge,” the
actions and motivations come into sharper focus—and understanding and possibly empathy—
whether they align either with those who participate in ‘white flight’ or in the ‘black lives matter’
movement.
18
See also, Kamtekar, Rachana. Plato's Euthyphro, Apology, and Crito: critical essays. Rowman & Littlefield
Publishers, 2004; Plato, and Reginald E. Allen. The dialogues of Plato. Vol. 1, Euthyphro, Apology, Crito, Meno,
Gorgias, Menexenus. Yale University Press, 1984.

8. 8
James Baldwin, writing in 1962 during some of those events, said in The Fire Next Time,
“There is absolutely no reason to suppose that white people are better equipped to frame the laws
by which I am to be governed than I am...for I am not a ward of America; I am one of the first
Americans to arrive on these shores.” Baldwin’s statement is similar to that of DuBois, who
expressed repeatedly that he simply wanted to live as an American.
Both may take their cue from Frederick Douglass who, “speaking to a group of
abolitionists” 19
shortly before the end of the Civil War, said:
“The American people have always been anxious to know what they shall do with us.... I
have had but one answer from the beginning. Do nothing with us! Your doing with us has
already played the mischief with us. Do nothing with us! ...
“...if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a
chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive
injury.”20
Gun violence as a Public Health crisis
This past December, NPR reported that several scientists issued a call21
for the Centers
for Disease Control to “declare law-enforcement-related deaths a so-called notifiable condition.
That means public health workers — not police — would be required to report such deaths to a
state or local agency.” A current law, promoted by the National Rifle Association and currently
on the books, effectively blocks this research.
19
Cited by Justices Clarence Thomas and Antonin Scalia in their dissent to the Court’s upholding ‘affirmative
action’ in the law school admissions case, Grutter v. Bollinger, 539 U.S. 306 (2003) at p. 349-350
20
Ibid, citing the quote’s source as: “What the Black Man Wants: An Address Delivered in Boston, Massachusetts,
on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan
eds.1991) (emphasis in original).”
21
Congress Still Limits Health Research On Gun Violence, December 8, 2015 Alison Kodjak
http://www.npr.org/sections/health-shots/2015/12/08/458952821/congress-still-limits-health-research-on-
gun-violence [12/10/15]

9. 9
As Nancy Krieger, an epidemiologist at Harvard School of Public Health says, according
to NPR, "It's shocking that we in the U.S. have to turn to a U.K. newspaper's website to get
timely reporting about who is being killed by the police."
Francis Bacon, father of the scientific method, warned that we are prone to be swayed by
four idols, including the Idols of the Cave, which mask our own prejudices, and the Idols of the
Market-place, where errors arise from received systems of thought. [Slide 9]
These three images likely challenge both idols, of prejudice and of our received systems
of thought. Bacon would have us ask, against the shout that “Black Lives Matter,” why a justice
system responded differently to the men pictured. Bacon warned us not to be “like the cobweb-
weaving theorists who do but spin webs from their own intestines.”22
In other words, it’s one
thing to have theories of law; it’s quite another if the theories are not tempered by actual practice.
We have to support the police.23
Police are the first we think to call when we perceive a
threat to ourselves or others. Police respond by putting themselves in harm’s way—repeatedly.
But supporting the police does not mean we, as lawyers, stop seeking better ways to
define their mission, to minimize risk of lethal encounters. One option that we as lawyers, and
educators of future lawyers, can introduce is to mandate muscular ethical training of upcoming
attorneys, based on a premise of uniformity across race, gender and class lines.
Nor does it diminish the honorable service of police to call for better training of lawyers.
22
Redargutio Philosophiarum
23
“Some people are talking about being anti-police. You cannot be anti-police. What you have to do is to
make sure that in communities, people get together…work with police forces. Work with the
governments…try to work out a system whereby there is accountability on the part of police, because
otherwise…you will have anarchy.” Comments February 5, 2015, of William R. Harvey, president of
Hampton University and Chair of President Barack Obama’s Board of Advisors on Historically Black
Colleges and Universities, http://www.c-span.org/video/?324071-4/washington-journal-hampton-
university-president-william-harvey [accessed 4/16/2015]

10. 10
Fugitive Slave Act-old lessons, new insights
The monetary incentives and/or disincentives attendant to court and police personnel
imposed by the 1850 Fugitive Slave Act may offer a template for reform today, and may provide
substantial reason to train lawyers, court personnel and police as to why and how ‘black lives’ as
well as all ‘marginalized’ lives, matter, albeit in the coarse and vulgar language of ‘damages.’
Retired Supreme Court Justice John Paul Stevens calls for the Court24
to reject its past
rulings which will deny financial recovery-‘damages’-against municipalities for the misconduct
of its officers.25
Until the Court heeds his call to overturn its decision26
I argue that we will never
get the most important actor to the “dispute resolution franchise” table—the insurance agent who
presents municipalities with the bill for insuring against these acts. And until we get the
insurance agent to the table, we will never get the issue to the law school curriculum in any way
other than a cursory mention of how to escape financial—if not moral and ethical—
responsibility for violating our oaths as officers of the court and as law enforcement personnel.
The case which Justice Stevens discussed, Connick v. Thompson, 131 S. Ct. 1350 (2011)
involved the Supreme Court’s overturning a $15 million-plus judgment against the New Orleans
District Attorney who had withheld evidence which would have assisted in exonerating the man
who spent 18 years in prison, 14 of them on death row, under a wrongful conviction.
24
http://www.nytimes.com/2015/02/18/opinion/prosecutors-misconduct.html [accessed 4/16/15] letter to the editor,
2/18/2015, New York Times, in which he describes the “the manifest injustice in the Supreme Court’s 2011 decision
refusing to force the New Orleans prosecutor’s office to compensate John Thompson for spending 18 years in prison
after his wrongful convictions.”
25
See, e.g., speech of retired U.S. Supreme Court Justice John Paul Stevens, March 24,
2015http://www.supremecourt.gov/publicinfo/speeches/JPS_Johns_Island_Club(Florida)_03-24-2015.pdf [accessed
4/16/2015], , initially found in op-ed piece in New York Times, 4/16/15 by Linda Greenhouse, Speaking Truth to the
Supreme Court, http://www.nytimes.com/2015/04/16/opinion/speaking-truth-to-the-supreme-
court.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-
region&WT.nav=c-column-top-span-region&_r=0 [accessed 4/16/2015]
26
Monell v. New York City Department of. Social Services. 436 U.S. 658 (1978)

11. 11
Lawyers for the condemned man only learned of the exculpatory evidence a month
before John Thompson was scheduled to be executed, and his convictions were vacated.
In the words of the Supreme Court, they reversed liability which had been assessed by the
lower court on the basis that the DA had not properly trained his staff and “that attorneys, often
fresh out of law school, would undoubtedly be required to confront Brady issues while at the
DA's Office, that erroneous decisions regarding Brady evidence would result in serious
constitutional violations...” and that the DA himself was ignorant of those facts.
At present, versions of the “Nuremberg defense,” i.e., “Befehl ist Befehl” (an order is an
order) and its corollary, “I was ignorant of the (law, facts)” are used successfully by highly
trained law officers, and their employers, to avoid liability for intentional and/or grossly
negligent wrongs inflicted upon fellow citizens.
Philosopher Max Weber27
defined a “state”28
as ‘a ... community that (successfully)
claims the monopoly of the legitimate use of physical force within a given territory.’29
[Slide 10]
Not all would agree that the district attorney’s practice met Weber’s definition as to ‘legitimate
use of physical force’ in sending John Thompson to 18 years in prison, 14 years on death row,
and to his scheduled execution based on wrongfully withheld evidence of his innocence.
27
Westley, William A. Violence and the Police. Cambridge, MA: MIT Press, 1970;
28
Englebert, Pierre. "Feature review The contemporary African state: Neither African nor state." Third
World Quarterly 18.4 (1997): 767-776, sources the quote from: Max Weber, `Politics as a vocation’ , in H
H Gerth & C Wright Mills (eds) From Max Weber: Essays in Sociology, New York: Oxford University
Press, 1958, p 78 (italics Weber’ s).
29
The economist Ludwig Von Mises stated it similarly: “State or government is the social apparatus of
compulsion and coercion. It has the monopoly of violent action.” In Human Action, A Treatise on
Economics, p. 149 (1998) Ludwig Von Mises Institute, Auburn, Alabama

12. 12
Kendrick Lamar’s cover art vividly reflects the failure of the “monopoly”, as seen by a
significant cohort of our fellow Americans. The imagery of the dead judge in the cover art fairly
shouts the disconnect between the franchise and the consumer.
Using Weber’s definition we cannot claim success: 1) force, by state actors, is too often
not being used legitimately; and, 2) no effective monopoly exists on the use of force. Violence in
neighborhoods forces people to choose who to support—the uniformed police on one hand, or
those not in uniform who nevertheless police their ‘turf’ and silence their competition, witnesses
and often innocent bystanders.30
America has 207 accredited law schools31
and some18, 000 state and local police
departments,32
which employ 1.2 million individuals.33
I suggest that change will be achieved
more rapidly, efficiently and uniformly by focusing not on street protests, not on the individual
decisions of those 1.2 million law enforcement employees, and not on changing 18,000 police
departments one-by-one, but on where our miscommunication of legal justification of lethal
force begins: the 207 nation’s law schools. And the way to reach them is through the one entity
that accredits the law schools’ programming.
The organized bar and the legal academy face tremendous challenges attempting to find
their way.34
That may be because, in the words of John Locke,35
we have not “looked abroad
30
Asbury, Bret D. Anti-snitching norms and community loyalty. Oregon Law Review 89.4 (2011).
31
http://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools.html
[accessed 3/17/2016]
32
U.S. Department of Justice Bureau of Justice Statistics, 2008 (latest available)
http://www.bjs.gov/content/pub/pdf/csllea08.pdf [accessed 3/17/2016]
33
Census of State and Local Law Enforcement Agencies, 2008
http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2216 [accessed 4/12/2015]
34
The irony is inescapable, that De Tocqueville, in 1835 in Democracy in America, Vol.1, Ch, 16 said
that “the legal profession, and the influence that these individuals exercise in the government, are the
most powerful existing security against the excesses of democracy.” P. 283, Vintage Books, (1945),
Alfred A. Knopf, Inc.; yet today, the process of replenishing the ranks of that profession, and the

13. 13
beyond the smoak of [our] own chimneys” to seek “that practical Truth that is universally
receiv’d without doubt or question…Justice.”
We can back-test the validity of the judicial monopoly by Locke’s words: “Want of a
common judge with authority, puts all men in a state of nature: force without right, upon a man's
person, makes a state of war.”36
Locke is the Enlightenment author our Founding Fathers37
most
relied upon38
to justify our break with England--our establishment of the American monopoly.39
Inequities in accessing justice can only be resolved by achieving agreement, from all
stakeholders, including those on Kendrick Lamar’s cover, as to Locke’s “common judge.”
Correcting that deficit will come with exposure to, and training in, what some scholars
call “cultural sensitivity or cultural humility,”40
an ability to perceive through different eyes.
[Slide 11] We lawyers are 1.3 million, 88% white.41
The 207 accredited law schools42
faced a twelve percent drop in enrollment over two years.43
The legal academy--and employment
dissociation from the Enlightenment values during the time DeTocqueville studied, possibly represent the
greatest existential threat to the very lives of minorities today.
35
1689 Essay on Human Understanding in Three Volumes, Vol, I, Book I, Ch.3, sec. 2,
36
Locke, Two Treatises of Government, (1689) Book 2, Ch. 3 Of the State of War, sec. 19
37
35 of 55 participants at the Constitutional Convention were either lawyers or had studied law. Source:
http://www.archives.gov/exhibits/charters/constitution_founding_fathers_overview.html [accessed
4/14/2015]
38
25 of 55 signers of the Declaration of Independence were lawyers Source:
http://www.archives.gov/exhibits/charters/print_friendly.html?page=declaration_signers_factsheet_conte
nt.html&title=NARA%20|%20The%20Declaration%20of%20Independence%3A%20Signers%20Factshe
et [accessed 4/154/2015]
39
Lutz, Donald S. "The relative influence of European writers on late eighteenth-century American
political thought." American Political Science Review 78.01 (1984): 189-197.
40
See, e.g., Curcio, Andrea Anne, Teresa E. Ward, and Nisha Dogra. "A Survey Instrument to Develop,
Tailor, and Help Measure Law Student Cultural Diversity Education Learning Outcomes." Nova Law
Review 38 (2014).
41
http://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-
tables-2014.authcheckdam.pdf [accessed 4/14/2015]
42
http://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools.html
[accessed 4/12/2015]
43
http://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-
tables-2014.authcheckdam.pdf [accessed 4/14/2015]

14. 14
opportunity in the legal marketplace--has not yet recovered from the 2008 financial implosion.44
Perhaps the greatest deficit, though, is in a cultural disinclination to see that the findings of the
Enlightenment scholars as to “common judge” and “social contract” represent the same needs of
all, regardless of color or culture.
Unlike those depicted on Kendrick Lamar’s cover, a policeman under investigation has
the right to an attorney explicitly set out in many state’s “bill of rights”45
for police. Courts even
allow so-called “experts” to testify as to the purported “science” of shooting a victim in the
back.46
[Slide 12] Aside from “expert testimony,” the “force science” offers videos, trainings,
and certifications.
Federal law47
directs the U.S. Secretary of Education to select agencies to accredit
schools offering professional degrees. Entities aligned with the American Bar Association and
the American Medical Association currently accredit their respective schools. It was not until
195048
that the ABA formally admitted its first African-American lawyer.49
44
Jobs Are Still Scarce for New Law School Grads, June 20, 2014,
http://www.bloomberg.com/bw/articles/2014-06-20/the-employment-rate-falls-again-for-recent-law-
school-graduates [accessed 4/14/2015]
45
See, e.g., Louisiana’s law, LSA-R.S. 40:2531 which provides, inter alia: 4)(a) The police employee or
law enforcement officer being questioned, whether as a target or as a witness in an administrative
investigation, shall have the right to be represented by counsel, other representative, or both, of the police
employee or law enforcement officer's choice.
(b) The police employee or law enforcement officer shall be granted up to thirty days to secure such
representation, during which time all questioning shall be suspended
http://www.legis.la.gov/Legis/Law.aspx?d=98276 [accessed 4/14/2015]
46
See, e.g., http://www.forcescience.org/articles.html [Accessed 4/15/2014]
47
20 U .S.C.A. § 1099b Title 20. Education https://www.law.cornell.edu/uscode/text/20/1099b [accessed
4/12/2015]
48
The same year the U.S. Supreme Court ruled in Sweatt v. Painter, 339 U.S. 629, that Texas had to
admit Heman Marion Sweatt to the University of Texas School of Law
49
http://www.americanbar.org/about_the_aba/timeline.html [accessed 4/12/2015]

15. 15
Yet with that late repudiation of “separate but equal,” the ABA was granted authority in
1952, which it retains to this day, to accredit all law schools in the country.50
The two
accreditation entities differ in educating their respective students as to “cultural competence” and
awareness of socio-economic and other factors.51
[Slide 12]
A medical student is required to be trained, as per Standard 7.6, lower left, on his or her
own “gender and cultural biases in themselves, in others and in the health care delivery process.”
We see numerous references to socio-economics, multidimensionally diverse society, belief
systems, etc.
For lawyers, the ABA includes “cultural competency” once, added only two years ago,
and permissive, not mandatory52
. Yes, there are other references not shown, as to diversity of
students and faculty, but not as to the ultimate consumers of the dispute resolution monopoly.53
The failure to require that racial disparities be discussed or taught suggests that we do not “look[]
beyond the smoak of [our] own chimneys."54
50
http://www.americanbar.org/groups/legal_education/resources/frequently_asked_questions.html
[accessed 4/12/2015] “Since 1952, the Council of the ABA Section of Legal Education and Admissions
to the Bar of the American Bar Association has been recognized by the United States Department of
Education as the national agency for the accreditation of programs leading to the J.D. degree in the United
States.”
51
See, e.g., Moran, Beverly I. "Disappearing Act: The Lack of Values Training in Legal Education-A
Case for Cultural Competency." SUL Rev. 38 (2010): 1, one of the first, and an excellent discussion of
the "failure to speak across intellectual divides", p. 37-38, and discussing "how far behind legal education
is from medical education", p. 33, by looking at "diversity as a value rather than at cultural competency as
a cognitive and practical skill."
52
See, e.g., p. 16, Interpretation 302-1, that “the law school may include skills such as…cultural
competency..” [italics added]
http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2015_2016_a
ba_standards_for_approval_of_law_schools_final.authcheckdam.pdf [accessed 11/19/2015]
53
It is indeed ironic, given De Tocqueville’s statement that “When one visits Americans and when one
studies their laws, one sees that the authority they have given to lawyers and the influence that they have
allowed them to have in the government form the most powerful barrier today against the lapses of
democracy.”
54
Law professor Mary Lynch’s seminal journal article on the development of cross-cultural skills offers
a wonderful work platform from which to construct the argument that change is not only needed, but

16. 16
Public comment may be addressed to the National Advisory Committee on Institutional
Quality and Integrity (NACIQI),55
as to how legal education should occur.
Writing in the 12th
century, Jewish philosopher Maimonides56
said “The general object of
the Law is twofold: the welfare of the soul and the welfare of the body.”57
Recent events
involving police and minorities underscore a conclusion that the law has too often been used not
for the welfare of the soul and the welfare of the body, but to separate the soul from the body.
The Canadian Charter of Human Rights and Freedoms58
provides an elegant prism from
which to view the question, in providing that “the rights and freedoms of the human person are
inseparable from the rights and freedoms of others and from the common well-being.”59
I tried to shed light on three goals: 1) lift one small corner of ‘the veil’ to reveal some of
the legal system’s structural misuse of science which has—and does—disadvantage people of
beneficial for all participants: The Importance of Experiential Learning for Development of Essential
Skills in Cross-Cultural And Intercultural Effectiveness, Touro Law Center’s Journal of Experiential
Learning, Winter, 2014-2015, Vol. 1, p. 129-147 http://www.tourolaw.edu/jel/Articles/VOL1-14-
15/Cross-cultural.pdf [accessed 4/12/2015]
55
Jennifer Hong, Executive Director/Designated Federal Official, NACIQI, U.S. Department of
Education, 1990 K
Street, NW., Room 8073, Washington, DC 20006–8129, telephone: (202) 502–7696, fax: (202) 502–
7874, or email
Jennifer.Hong@ed.gov , National Advisory Committee on Institutional Quality and Integrity,
Washington, DC 20006 [accessed 3/17/2016] See: https://www.gpo.gov/fdsys/pkg/FR-2015-12-
31/pdf/2015-32933.pdf
http://www2.ed.gov/about/bdscomm/list/naciqi.html [accessed 3/17/16]
56
“Moshe ben Maimon, known in Hebrew as Rambam and in English as Maimonides (1138–1204), is
one of the most important Jewish thinkers.” Greenwald, Becky Abrams. "MAIMONIDES, MIRANDA,
AND THE CONUNDRUM OF CONFESSION: SELF-INCRIMINATION IN JEWISH AND
AMERICAN LEGAL TRADITIONS." NYUL Rev. 89 (2014): 1743-1902, p. 1747.
57
Maimonides, Moses, Guide for the Perplexed, Book III, Ch. 27, p. 314, Second edition (1910) tr. M.
Friedlander, London
https://ia600406.us.archive.org/16/items/guideforperplexe00maim/guideforperplexe00maim.pdf
[accessed 4/12/2015]
58
Chapter C-12, http://laws-lois.justice.gc.ca/eng/const/page-15.html [last accessed 10/15/14 at 8:23
p.m.]
59
This thought echoes that of Jean Jacques Rousseau’s 1762 work, Of The Social Contract, Or Principles
of Political Right, Book I, Ch. 7: “As soon as this multitude is so united in one body, it is impossible to
offend against one of the members without attacking the body”

17. 17
color; and, 2) to suggest that our current system of legal education itself contributes to those
concerns and, in fact, creates a health risk to people of color; and, 3) to suggest alternatives.
Thank you.