Roy L. Brooks is the Warren Distinguished Professor of Law at the University of San Diego.
Professor Brooks served as a senior editor of the Yale Law Journal, clerked for the Honorable Clifford Scott Green of the U.S. District Court in Philadelphia, and practiced corporate law with Cravath, Swaine & Moore in New York City. He joined the USD School of Law faculty in 1979.
Professor Brooks is a member of the American Law Institute and the Authors Guild. He has received national book awards including the Gustavus Myers Outstanding Book Award (twice) and the Brandeis University Library Learned Research Journal Award. He received the Thorsnes Prize for Excellence in Scholarship (twice) and the Thorsnes Prize for Excellence in Teaching (twice).
Professor Brooks was named a USD University Professor in 2005 and 2018. He teaches and writes in the areas of legal and critical theory, civil procedure, civil rights, employment discrimination, and international human rights.
Ambiguity aversion is a person's rational attitude towards the indeterminacy of the probability that attaches to his future prospects, both favorable and unfavorable. An ambiguity-averse person increases the probability of the unfavorable prospect, which is what criminal defendants typically do when they face a jury trial. The prosecution is not ambiguity averse. Being a repeat player interested in the overall rate of convictions, it can depend upon any probability, however indeterminate it may be. The criminal process therefore is systematically affected by asymmetric ambiguity aversion, which the prosecution can exploit by forcing defendants into harsh plea bargains. Professors Segal and Stein examine this issue theoretically, empirically, and doctrinally. They demonstrate that asymmetric ambiguity aversion foils criminal justice and propose a law reform that will fix this problem.
In this essay, I shall explain why I believe the tort model, our current approach to slave redress, is misdirected. I shall also explain the direction in which I believe slave redress should move. After setting forth the major features of the tort model (Part II) and its normative deficiencies (Part III), the essay briefly outlines the contours of the atonement model (Part IV). My objective is to indicate the direction-the tenor and terms of the discussion-I believe the debate on slave redress should take.
The question of judicial atonement can be analyzed through a series of cognate questions. First, what approach should we use in analyzing the question of judicial atonement? This is the threshold question. Second, can the Court’s moral culpability for slavery and Jim Crow be established? Third, is the Court’s post-Brown v. Board of Education, post-Jim Crow judicial philosophy sufficient to atone for slavery and Jim Crow? Assuming the answer to that question is negative, then a final question arises: is it possible to construct a new judicial philosophy that atones for slavery and Jim Crow? I shall address these questions
I wish to challenge this view of contemporary America and, in so doing, make the case for the necessity of the U.S. government's atonement for slavery and Jim Crow. In spite of President Obama's election, there is in my view a very good reason why the federal government should atone-by which I mean apologize and provide reparations'-for slavery and Jim Crow: living victims. Beyond the obvious fact that many African Americans (including myself) lived during portions of Jim Crow, the great majority of blacks today, including those who were born after the Jim Crow Era, are victims of both slavery and Jim Crow. Hence, even the victims of slavery are not all dead.
My argument rests upon a particular understanding of racial dynamics in "post-racial America." As I will explain, post-racial America is a society defined by continuing and contrasting racial dynamics.' Next, within my living-victims thesis, I will argue that these contrasting dynamics exist as a lingering result of slavery and the Jim Crow Era.' Finally, I will argue that this contrast can be resolved by a bill similar to the GI Bill.
Any commission on reparations has a more delicate and complex task. It must ask: How can the government attain moral clarity in the aftermath of slavery, the nation's worst atrocity? What conditions are necessary to repair the broken relationship between the government and the victims of that atrocity? In this article, I shall explain and defend a reparations model that answers these questions. It is, in my view, the best model for black reparations as it offers the best path toward racial reconciliation.
Also available in print at the LRC.
If the conservative view of the American race problem is frightening, the traditional liberal view seems impotent. Analyzing the race problem from neither right nor left, Brooks sheds a new and clarifying light on America's longest running social and moral dilemma. This incisive book provides a bold new examination of the seemingly intractable racial problems confronting Americans at the end of the twentieth century. In a wide-ranging and probing study, Brooks calls into question the prevailing wisdom about racism, civil rights legislation, and the composition of the Black community, going on to offer a dramatic new approach to the race problem. In Brooks' mind, civil rights laws--laws targeted at racial discrimination--have not only failed to engender racial equality, but have in fact had a negative effect on the standard of living of many Blacks. Brooks defines the American race problem so as to carefully separate racial oppression from (economic) class oppression and explains how civil rights legislation since the 1960s has hurt Black Americans of every class. He offers a strategy for resolving the country's racial inequities, unique in its attentiveness to class division in Black society, that combines governmental remedies and an unprecedented program of Black self-help. While Brooks argues that the government has the means to resolve the race dilemma, he suggests that it lacks the spirit to do so. Thus, it may be time for Black Americans to come to grips with an unpleasant reality--namely, that they can count on the government only for minimal alleviation, and must take on the larger portion of responsibility for resolving the American race problem themselves. Certain to arouse controversy, Rethinking the American Race Problem offers new understandings of issues often clouded by misconceptions and backward notions. It is an important book for anyone concerned about the current state of race relations in America.
Also available in print at the LRC.
Integrated in principle, segregated in fact: is this the legacy of 50 years of progress in American racial policy? Is there hope for much better? Roy L. Brooks, a professor of law and a writer on matters of race and civil rights, says what few will admit - integration hasn't worked and possibly never will. Equally, he casts doubt on the solution that many African-Americans and mainstream whites have advocated: total separation of the races. This book presents Brooks's strategy for a middle way between the increasingly unworkable extremes of integration and separation.
Also available in print at the LRC.
Leading scholars, activists, and political leaders on being victim's of the world's worst atrocities "How much compensation ought to be paid to a woman who was raped 7,500 times? What would the members of the Commission want for their daughters if their daughters had been raped even once?"--Karen Parker, speaking before the U.N. Commission on Human Rights Seemingly every week, a new question arises relative to the current worldwide ferment over human injustices. Why does the U.S. offer $20,000 atonement money to Japanese Americans relocated to concentration camps during World War II, while not even apologizing to African Americans for 250 years of human bondage and another century of institutionalized discrimination? How can the U.S. and Canada best grapple with the genocidal campaigns against Native Americans on which their countries were founded? How should Japan make amends to Korean "comfort women" sexually enslaved during World War II? Why does South Africa deem it necessary to grant amnesty to whites who tortured and murdered blacks under apartheid? Is Germany's highly praised redress program, which has paid billions of dollars to Jews worldwide, a success, and, as such, an example for others?More generally, is compensation for a historical wrong dangerous "blood money" that allows a nation to wash its hands forever of its responsibility to those it has injured? A rich collection of essays from leading scholars, pundits, activists, and political leaders the world over, many written expressly for this volume, When Sorry Isn't Enough also includes the voices of the victims of some of the world's worst atrocities, thereby providing a panoramic perspective on an international controversy often marked more by heat than reason.
Also available in print at the LRC.
How America can achieve greater racial equality in the post-civil rights era With the election of Barack Obama as the first black president of the United States, the issue of racial justice in America occupies center stage. Have black Americans finally achieved racial justice? Is government intervention no longer required? Racial Justice in the Age of Obama considers contemporary civil rights questions and theories, and offers fresh insights and effective remedies for race issues in America today. While there are now unprecedented opportunities for talented African Americans, Roy Brooks shows that lingering deficiencies remain within the black community. Exploring solutions to these social ills, Brooks identifies competing civil rights theories and perspectives, organizing them into four distinct categories--traditionalism, reformism, limited separation, and critical race theory. After examining each approach, Brooks constructs the best civil rights theory for the Obama phase of the post-civil rights era. Brooks supports his theoretical model with strong statistics that break down the major racial groups along such demographics as income and education. He factors in the cultural and structural explanations for the nation's racial divisions, and he addresses affirmative action, the failures of integration, the negative aspects of black urban culture, and the black community's limited access to resources. The book focuses on African Americans, but its lessons are relevant for other groups, including Latinos, Asians, women, and gays and lesbians. Racial Justice in the Age of Obama maps out today's civil rights questions so that all groups can achieve equality at a time of unprecedented historical change.
The US Supreme Court's legitimacy-its diminishing integrity and contribution to the good of society-is being questioned today like no other time in recent memory. Criticisms reflect the perspectives of both 'insiders' (straight white males) and 'outsiders' (mainly people of color, women, and the LGBTQ community). Neither perspective digs deep enough to get at the root of the Court's legitimacy problem, which is one of process. The Court's process of decision-making is antiquated and out of sync with a society that looks and thinks nothing like the America of the eighteenth century, when the process was first implemented. The current process marginalizes many Americans who have a right to feel disenfranchised. Leading scholar of jurisprudence Roy L. Brooks demonstrates how the Court can modernize and democratize its deliberative process, to be more inclusive of the values and life experiences of Americans who are not straight white males.