Harris on Innocence
Seth D. Harris (New York Law School) has posted
Innocence and The Sopranos (New York Law School Law Review Vol. 49) on SSRN. Here is the abstract:
"Innocence" can be defined in a narrow, even technical way: "[f]reedom from specific guilt; the fact of not being guilty of that which one is charged; guiltlessness." But "innocence" can also take on a larger meaning that extends beyond technicality into morality: "[f]reedom from sin, guilt, or moral wrong in general; the state of being untainted with, or unacquainted with, evil; moral purity." This broader definition conveys a larger idea that is more powerful and evocative than the former's narrow literalism.
"Innocence" has played an important role in three lines of judicial decisions addressing claims of workplace discrimination: remedies decisions, decisions reviewing affirmative action in public employment, and decisions reviewing affirmative action in private employment. From the Supreme Court's perspective, the "innocent" third parties in these workplace discrimination cases are the white and male co-workers of the African-American and women workers who have been the victims of discrimination. The Supreme Court has repeatedly relied on the "innocence" of white and male workers to deprive African-American and female discrimination victims of complete relief from discrimination.
This essay argues that the Supreme Court's "innocence" jurisprudence in the workplace discrimination cases represents a subtle bait-and-switch of one definition of "innocence" for the other. The white and male co-workers of the victims of discrimination are "innocents" only in the sense that they satisfy the narrower definition: "freedom from specific guilt." Nonetheless, the Supreme Court has afforded these "innocents" protection appropriate only for those who satisfy the broader, moral definition of "innocence." Thus, the Court's workplace discrimination decisions minimize discrimination and its victims while emphasizing the purported plight of "innocent" co-workers.
This misuse of the power of "innocence" has deprived the victims of discrimination of complete justice. The central issue became how best to resolve a manufactured struggle between the victims of discrimination and their co-workers over jobs, promotions, and wages rather than how to eliminate the vestiges of discrimination from the workplace. The Court's answer, dictated by its re-shaping of the question, has been to constrain the lower courts and other branches and levels of government from preferring the victims of discrimination over their "innocent" co-workers in the assignment of burdens and benefits in the workplace.
This essay discloses how the Supreme Court has wielded the power of "innocence" in its workplace discrimination cases. But it also responds to the Supreme Court's subtle bait-and-switch of one form of "innocence" for another with a resounding "fuhgeddaboutit!" This essay recruits America's favorite TV mob family - the Sopranos - to help in the assessment of what it means to be "innocent." Fictional New Jersey crime boss Tony Soprano, his wife Carmela, his oldest child Meadow, and only son Anthony, Jr. ("AJ") challenge the role that "innocence" plays in the resolution of disputes over workplace discrimination and help us to understand that "innocence," as defined in the only manner that befits the white and male co-workers of the victims of discrimination, is and should be irrelevant to the resolution of these disputes. In the process, the Sopranos offer a competing vision of what it means to genuinely and fully remedy workplace discrimination. It's an offer we can't refuse.