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Yale Law & Policy Review



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Leon Higginbotham, racism, comparative race relations


Judge A. Leon Higginbotham, Jr.'s scholarly legacy is one that continues to provide guidance for civil rights activism in the American legal process today. While the Judge's work as a legal scholar is justifiably lauded for its significant contribution to the development of a legal history of slavery and its consequences in the United States, his work also serves another significant role for legal scholars. I refer to Judge Higginbotham's pioneering use of comparative race relations in legal scholarship. In his examination of the South African racial context, the Judge methodically demonstrated the commonalities between the United States and South Africa that allowed each country to sustain racial subordination despite distinctions in culture, history, and demography. In doing so, the Judge served up an enduring lesson for civil rights scholars. In particular, Judge Higginbotham's combined use of racial history and comparative race relations in his legal scholarship demonstrated the global nature of racism and its features, and how racism functions as a societal process that preserves racial hierarchy and privilege across distinct landscapes and cultures. This fundamental insight articulated by the Judge has been implicitly deployed by scholars in a variety of international contexts: comparing the anti-discrimination laws of France with those of the United States, comparing Germany's racial history with that of the United States, comparing caste-based affirmative action of India with race-based affirmative action of the United States, and comparing legislation-based affirmative action in South Africa with policy-based affirmative action in the United States. The Judge's juxtaposition of historical and comparative models of race continues to inform the work of current scholars, including myself, and should do so more as we look deeper into the role of race in a diverse society. Before detailing the ways in which the Judge's pioneering work has informed my own scholarship, an exploration of the Judge's comparative studies will be instructive.