Mixed Race Studies

The Re-Emergence of Race as a Biological Category: The Societal Implications—Reaffirmation of Race

The Iowa Law Review
Volume 94, Number 5 (July 2009)
pages 1547-1587

Alex M. Johnson, Jr., Perre Bowen Professor of Law; Thomas F. Bergin Teaching Professor of Law and Director, Center for the Study of Race and Law
University of Virginia

Table of Contents

• I. INTRODUCTION
• II. PLACING RACE IN CONTEXT: DEFINING THE ISSUE
  • A. AN HISTORICAL ANALYSIS
  • B. REALISTS AND ANTIREALISTS—COMPETING CONSTRUCTIONS OF RACE IN THE LEGAL COMMUNITY
• III. THE SOCIETAL COSTS OF USING RACE IN BIOMEDICAL RESEARCH
• IV. ETHNICITY VERSUS RACE: DEVELOPING A NEW, SOFTER PARADIGM
• V. CONCLUSION

As the Dean of the University of Minnesota Law School in 2005, I was privileged to host and attend a conference at the Law School entitled, “Proposals for the Responsible Use of Racial and Ethnic Categories in Biomedical Research: Where Do We Go from Here?”1 To say the least, it was a fascinating conference replete with interesting speakers engaged with topical and controversial issues. The papers presented and discussed were proof of the success of the conference and the relevance of issues addressed.2 Professor Susan Wolf prepared a concise summary of those articles for Nature Genetics, and the reader is encouraged to review that summary before continuing with this Article.

Although the conference quite appropriately focused on the topic at hand—the use of racial categories in biomedical research—my thoughts kept drifting to a related, and perhaps more important, issue: the re-emergence of race as a biological category rather than as a social construct. I also pondered the implications of that development in a society in which race continues to be the most prominent social issue, even though an African-American was recently sworn in as President of the United States.6 I kept returning to this thought because of the topics addressed during the conference, topics which were not new to me.

As a scholar who has written several articles about “race” and its place in in legal scholarship, have given a lot of thought as to how “race” impacts every significant facet of American society and how this society’s history is inextricably tied to its legacy of slavery and the vestiges (for example, “separate but equal” comes to mind) of that awful chapter in American history. I have gone so far as to advocate, in two separate articles, the destabilization of racial categories as a vehicle to eliminate “race” and, ultimately, the effects of race (i.e., racism and racialism) in American society.

As a result, during the twenty-plus years I have been researching, writing, and thinking about race and race-related issues, I have always been puzzled by an event that happens regularly: the release of medical reports and studies that report differential results, findings, or outcomes based on the race of the test subjects. It is fairly common for some reporter to quote a statistic indicating that African-Americans have a higher rate of, say, hypertension than whites…

Read the entire article here.

Destabilizing Racial Classifications Based on Insights Gleaned from Trademark Law

California Law Review
Volume 84, Number 4 (July, 1996)
pages 887-952

Alex M. Johnson, Jr., Perre Bowen Professor of Law; Thomas F. Bergin Teaching Professor of Law and Director, Center for the Study of Race and Law
University of Virginia

Analogy to trademark law offers solutions to the problematic binary system of race classification in the US by exposing and deconstructing the notion of whiteness as a property right. Maintaining the racial dichotomy between blacks and whites preserves whiteness as the position of privilege and blackness as the marginalized other. Promotion of multi-racial categories would make racial identification generic and would destroy the value of marking as a way of protecting the property right of being white. Ethnic identities could be retained because of the benefits of voluntary identification.