Document Type



“Black, White and Gray: A Reply to Alschuler and Schulhofer” (with Dan Kahan) 1998 University of Chicago Legal Forum 245 (1998)


The goal of our Article was to expose the anachronistic picture of political reality that informed the Illinois Supreme Court's decision in Chicago v Morales. Relying on civil rights era precedents designed to counteract racist policies aimed at locking minorities out of the community's civic life, the Morales Court's analysis seems to treat Chicago's gang loitering ordinance as if it were indistinguishable from those earlier policies. The truth, we argue, is that the gang loitering law is representative of a new generation of public order provisions that enjoy the enthusiastic sponsorship of minority communities. As a result offundamental reforms in American voting law, these citizens now enjoy significant political strength in the nation's inner cities. They're using that strength to rectify centuries' long denials of effective law enforcement in their communities—the vestiges of which, in the form of high crime rates, continue to stifle the social and economic advancement of American Blacks and Latinos. In these circumstances, we suggest that the most constructive role for courts is no longer to enforce tight constraints on discretionary street policing, but to insist that inner-city communities structure law enforcement in a way that doesn't dissipate their own political incentives to police their police. We believe that the Chicago gang loitering law meets this standard.

Alschuler and Schulhofer critique our account of the politics behind the gang loitering law as well as our general argument about the significance of minority political empowerment for criminal procedurejurisprudence. We respect the questions they raise and the doubts they pose, but we believe, nevertheless, that their conclusions are wrong. We first take up their description of the factual background of the gang loitering ordinance—the part of their response that is easiest to rebut—and then address the admittedly difficult points they raise about the relationship between the political process and constitutional rights.

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