West Virginia Law Review
This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law—i.e., through a process of socio-legal construction—in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development of a number of empowered racial minority identities that were created through labor and affirmatively claimed by people of color. I analyze in this Article the concept of racial minority identity as a form of identity property and utilize examples from intellectual property and defamation law to illustrate some of the nuances of such a concept.
This Article proceeds in three parts. Part I begins by exploring the socio-legal construction of race and explains Cheryl Harris's idea that whiteness has been a form of property. Part II sets forth the argument that people of color have constructed empowering racial identities in resistance to the socio-legal construction of negative racial meaning that has been imposed on them. Finally, Part III explores the idea of identity property and provides examples of how intellectual property and reputational harm concepts can elucidate ways in which identity property can be expressed and protected.