© 2021 Thomson Reuters. No Claim to Original U.S. Government Works. 1 the SPACE RACE: FUTILE FIGHTING for FINITE FINDINGS, 31 Alb

THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS, 31 Alb. L.J. Sci. &...

31 Alb. L.J. Sci. & Tech. 118

Albany Law Journal of Science and Technology 2021

Note Courtney Tromblya1

*118 THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS The advent of space exploration has brought a myriad of exciting new discoveries, among which are materials and resources.1 Such resources include sunlight and elements contained in the atmosphere, as well as materials included within the regolith (unconsolidated material that overlies solid rock on planetary bodies).2 The materials--which include minerals and gases-- derived from near-Earth objects such as asteroids, or even the Moon (lunar rocks are an example), could be used to help maintain humanity's longevity or aid in the further exploration of space.3 The materials derived from space contain vast and largely undiscovered potential, and as such, are highly desirable.4

The value of such resources is obvious; any country would be eager to get their hands on previously undiscovered minerals that have the potential to propel humanity into a new age.5 This also gives rise to an obvious dilemma: how can we keep the resources of space from being monopolized by a select few countries? Some countries have explored space; the United States, not content with being the first on the moon, now uses *119 various technologies to explore the rest of space.6 For example, having landed several rovers on Mars to explore the resources there,7 the United States plans to send another next year, notably to evaluate habitability and collect samples for use in future missions.8 In contrast, of the 193 member states of the United Nations,9 only 72 countries claim to have a space program.10 Only 14 of these states “currently have basic launch capabilities.”11

The disparities here are plain to see: if only a handful of countries have even the mere capability of launching a rocket into space, what is to stop those who are capable from extracting and hoarding space resources? What stops them from asserting a “first in time is first in right” mindset?12 The solution has thus far (and, it would appear, will for the foreseeable future) lain in international agreements, treaties, and frameworks governing the acquisition and use of outer space resources.13

Outer space--along with Antarctica, the high seas, and the atmosphere--is considered a “global commons,” a resource *120 domain to which all countries have legal access.14 This notion of outer space as a resource for all has been memorialized in several international agreements. Most famous is the 1967 “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” (hereinafter referred to as, the “Outer Space Treaty”), which ensures that outer space is “free for exploration and use by all states,” and “not subject to national appropriation.”15 More recently, the United Nations adopted the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“The Moon Treaty”), which “provides that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.”16 The Moon Treaty, adopted in 1984, is the most recent treaty listed by the United Nations regarding outer space exploration.17 This indicates that despite the relative urgency of the issue given technological progress in collecting outer space resources, little action has been taken on the international level to build modern systems of governance for the collection and use of these resources.

The lack of modern governance systems becomes a particularly pressing issue when countries attempt to assert their dominance and ownership rights over space resources, in spite of the Outer Space Treaty.18 One such example is the United States' “Space *121 Resource Exploration and Utilization Act of 2015,” which allows the country to utilize “space resources to meet national needs.”19 Such an action appears to be an abrogation of the Outer Space Treaty.20 Given these developments, many have suggested different frameworks which would ensure equal access to outer space resources for countries which have not yet developed, or only possess underdeveloped, space programs.21 The United Nations itself has an initiative for ensuring such access.22

This is not dissimilar to the attempts by the United States government during what has come to be known as the Civil Rights Era to attempt to bridge the resource and achievement gap between blacks and whites.23 The United States set up a new system of laws in an attempt to ensure that its citizens had equal access to property, jobs, and opportunity, despite their disparate conditions, backgrounds, and opportunities at the *122 time.24 Similarly, the United Nations is attempting to encourage a system which would ensure that countries have equal access to opportunities to exploit space resources despite their different capability levels for exploring space, both currently and historically.25

However, the Civil Rights Era has often been criticized as a failure.26 Many critical race theorists27 have asserted that the Civil Rights Era instituted only a nominal change in the conditions of blacks in the United States.28 Some have asserted that this was done merely to keep blacks placated so that they could continue to be subjugated without protest.29 Going farther than this, others have argued that even post-Civil Rights Era, policies were created which intentionally (and sometimes explicitly) excluded blacks from opportunities which the Civil Rights regime had fought for and guaranteed.30 “[C]ritical [R]ace [T]heory has developed several postmodern analytical techniques designed to reveal a racial tilt built into the legal system that affirmatively contributes to the social oppression of racial minorities.”31 Essentially, the argument is being made that despite the efforts of the United States to ensure equality between blacks and whites, the system functions so as to not only fail to rectify the disparity between the races, but actually works *123 to enforce and increase it.32

This article will attempt to apply the Critical Race Theory lens to the efforts made by the international community to ensure equal footing to unequal countries in securing access to space resources. Using the insights of the Critical Race Theory jurisprudence, this article will demonstrate that any attempt to ensure equality between countries with space programs and those without will be unsuccessful, as demonstrated by the Civil Rights regime and attempts at racial equality. This article will first examine the current situation regarding outer space in more detail, including the existing agreements and conventions in place, the suggestions by various commentators as to how to ensure that access, and the actions currently taken by countries with capable space programs to exploit outer space resources. It will then examine the failure of the Civil Rights regime as explained by Critical Race Theorists, including the intentional and explicit policies which exclude minorities, the oversights which allow such exclusionary policies to continue, and the failure to remediate the disparities through affirmative action and other such policies. Finally, it will tie the two pieces together and argue that the situations are similar; the two disparate groups will never be equal, nor will their access, because the nature of the system is geared towards self-serving exploitation.

The Situation as it Stands

Current (Multi)Continental Covenants

International law exists within a framework of its own.33 Much of the origin of international law lies in the Charter of the United Nations, a 1945 document which created the intergovernmental organization of the United Nations (UN).34 This body creates and *124 codifies international law through various conventions, treaties, and declarations.35 These documents are signed and ratified by various States, which promise to uphold the object and purpose of each document they adopt.36

The UN contains a justice system, most notably in the court known as the International Court of Justice, which settles disputes among States.37 However, there are otherwise few enforcement mechanisms within the UN to hold member States accountable for their breaches and to their obligations, both under international law and within the treaties or conventions which these states sign and ratify.38 The lack of traditional “policing” of international law is a frequent criticism of the international system in general, and of the UN in particular.39 Such considerations may lead one to assume that any proposed international legal framework such as the ones proposed for outer space resources would fail fundamentally due to UN incompetence. However, this author disagrees. Taken with the critiques should be the successes; the UN has made major strides in some areas, particularly those of human rights.40 As for lack *125 of policing, the UN does have some major power with the functioning of its Security Council, which can impose sanctions or force in extreme circumstances for the maintenance of international peace and security.41 In short, it would be an overstatement to eschew the whole of the United Nations work as ineffective and deem it unable to garner State participation.

This distinction is important for the purposes of this article's argument. I do not attempt to assert that efforts to ensure equal access to space resources are bound to fail due to an inept international enforcement system. Rather, this article looks to the historical precedent of inequality influencing access to resources. Using this, it argues that States will be motivated--as the United States was during the Civil Rights Era--to exploit the system to ensure that access remains in the hands of the historically privileged and powerful.42 Therefore, it is relevant and important to look at the progress made thus far in the area of outer space research and exploration.

The international frameworks for governing global commons in general, and outer space in particular, were discussed briefly above and will be explored more deeply below. However, it may be helpful to first look at some of the relevant provisions of the UN Charter, the instrument out of which most of international law has grown.43 In its first article, the Charter places emphasis on the need for the cooperation of States in solving international problems of many characters, including economic.44 Article Two designates States as responsible for fulfilling in good faith the obligations placed on them by the Charter, as well as attempting to solve international disputes in a peaceful manner.45 Therefore, the UN Charter sets the basis for development of outer space *126 law; the issue is likely, in coming years, to become a major international dispute. Acquisition of these resources is likely to become a point of contention internationally, particularly as the capabilities to collect resources from outer space improve.46 Thus, the UN lays down the guidelines for states in dealing with such a problem.47 They must act in a cooperative and peaceful manner.48

Cooperation is typically achieved through an international device of some sort, such as a treaty or convention.49 As mentioned, there have been two major UN agreements which have considered the issue of outer space: the Outer Space Treaty of 1967 and the Moon Treaty of 1984.50 Chronologically between these two treaties are the “Rescue Agreement” of 1968 (governing the rescue and return of astronauts and objects launched into outer space), the “Liability Convention” of 1972 (governing liability for damage caused by space objects), and the “Registration Convention” of 1976 (governing the system for registering objects launched into outer space51).52 Thus, international attention was focused on forming frameworks for outer space in the period between the mid-1960s and the mid-1980s, and there have been no international treaties regarding the issue created after.53 However, modern programs have been created to address the question of outer space in the *127 international arena; for example, the UN contains a “Committee on the Peaceful Uses of Outer Space,”54 as well as a program known as “UN-SPIDER,” which acts as disaster management and emergency response in outer space.55 Both are contained within the larger UN Office for Outer Space Affairs (UNOOSA).56

The Outer Space Treaty declares that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.”57 It designates outer space as free for exploration and use by

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS, 31 Alb. L.J. Sci. &... all States, not subject to any national appropriation or claim of sovereignty.58 It also designates States as responsible for national space activities, and calls on them to avoid harmful contamination of space and celestial bodies.59 These two provisions may become useful in regulating the appropriation of space materials, as they allow for States in charge of a particular excavating space program to be held directly culpable for any environmental harm done by that excavation.60 The Outer Space Treaty sets the foundation for regulation of more complex issues of outer space.61

The Moon Treaty adds to this foundation by specifically regulating celestial bodies.62 First and foremost, it reaffirms many of the provisions of the Outer Space Treaty as applied to the moon and other celestial bodies: their use only for peaceful purposes, lack of disruption of their environment, and registration of stations located on these bodies.63 More *128 significantly, the Moon Treaty provides that “the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.”64 Therefore, the existing treaties have contemplated that the collection and utilization of space resources may become a problem.65 However, this treaty was created and signed over thirty years ago--the technology that it envisioned as being one day possible is largely here.66 The international regime that it suggests should be established to govern exploitation when the technology “is about to become feasible” is already too late.67 This exploitation will soon begin, given the 2015 declaration of the United States government that it will utilize space resources to meet national needs.68 So far, the United Nations has failed to create an effective framework for regulating this utilization.69

One might wonder if it is really such a big deal if a large country decides to keep a few space rocks for itself. Outside of the regular notions of fairness, is there any significant reason to restrict countries' access to resources that they are able to obtain (even if others are not)? It is important here to recall that while space can appear (and seems to be) infinite, the resources within it that are needed and can be feasibly obtained are not.70 For example, only a certain amount of satellites can occupy the space immediately surrounding the Earth and its atmosphere at a given time, meaning access inherently cannot be equal.71 So it is with any of the resources in space; with all the countries of the world vying for them, and some countries being equipped and currently unrestricted in taking as much as they want, there will *129 not be enough to go around.72

Suggested Solutions

Despite the lack of formalized or official frameworks conducted by intergovernmental organizations such as the United Nations, some commenters have suggested how to best govern outer space resource exploitation and utilization.73 Some argue merely general concepts, such as the consideration of need, efficiency, the ability to use resources, and balancing the necessity of equitable allocation with efficient use.74 However, several are more detailed in their discussion and proposal of methods to govern the allocation of scarce outer space resources.75 Many of these proposals seem to focus on the status of outer space as a global commons, an area not subject to any claims of sovereignty.76 Given this status, some argue that outer space should be governed in a manner echoing the conventions on other types of global commons.77

Some propose using the framework established by the UN Convention on the Law of the Sea.78 One article, discussing the opportunity to create a workable Moon Treaty, states that “recent progress on the United Nations Convention on the Law of the Sea (UNCLOS) has led to an improved understanding of the Common Heritage concept and suggests that the differences between the developed and developing countries can be resolved.”79 The same article also refers to several other sources from which inspiration for such a scheme can be drawn: “the regime governing the allocation of orbital slots in geosynchronous *130 orbit, the intergovernmental agreement on the International Space Station, the U.N. principles on remote sensing, the Antarctica Treaty ... mining law, water law, and intellectual property law.”80 It might also be noted, however, that others have

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS, 31 Alb. L.J. Sci. &... asserted that the UN cannot keep up with technological advances enough to create effective law in the area of intellectual property,81 therefore, this body of law may not be the best source of inspiration.

Another article, which traces non-appropriation principles from 1967 to the present, argues that UNCLOS is a proper model framework.82 This article discusses the need to balance economic efficiency with equitable access, and states that a “first come, first serve” approach would be chaotic and disadvantageous to countries with very little.83 It argues for a leasing method similar to the one in UNCLOS for outer space appropriation.84 Another article proposes a mechanism of governance for outer space, and suggests looking not only to UNCLOS, but also to the International Telecommunication Union's allocation of geostationary orbit slots and the Homestead Act of 1862.85 These parallel systems, it argues, could be used as frameworks for regulating outer space resources.86 Clearly there are an abundance of international regimes which could be used to attempt to create an egalitarian society in outer space, where each country has equal access to resources.87 But is any system meant to ensure equality truly feasible? Critical Race Theory may provide an answer.

*131 Racial Revelations

Reveling in Retroactive Reflections on Restriction

The United States is well-known to have been built on inequality.88 The racial caste system in early America was easy to see; the black slaves did the work while the white men who owned them gained the profit.89 As the descendants of these slaves gained their independence, new provisions were put in place to keep them lowly and ensure that society did not view the two groups--blacks and whites--equally.90 Famously, “Jim Crow laws” were put in place to legalize segregation; they denied blacks the right to vote, hold jobs, or obtain proper education, under the threat of punishment or even death.91 This separation was implicitly accepted by the public and explicitly allowed by the courts.92 In the pivotal case of Plessy v. Ferguson, the Supreme Court held that racially segregated facilities were not discriminatory and did not violate the Constitution, so long as they were equal.93 The Court noted that “[i]f the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.”94 The Court therefore cast aside any obligation to ensure intermingling, and instead promulgated the notion of “separate but equal” that remained the *132 norm for many years.95

More than fifty years later, however, the Court evidently had a change of heart (or, at least, of mind).96 The well-known and oft-cited landmark case of Brown v. Board of Education turned the notion on its head, stating that separate facilities were inherently unequal, and thus unconstitutional.97 However, this newfound declaration did not have unlimited reach.98 In fact, Brown applied itself only to educational facilities, stressing the importance of a proper education for the good of the public.99 More significantly perhaps is the holding of Brown II, decided the next year, where the Court determined the proper remedy to the unequal circumstances described in the original Brown decision: “a prompt and reasonable start toward full compliance with our May 17, 1954[] ruling.”100 This decision essentially took the teeth out of Brown; enforcement was within the purview of the very schools that had been allowing and encouraging segregation, which now needed only a prompt (a term not defined or quantified) and reasonable start toward compliance.101 Some argue that school desegregation was not actually beneficial.102 Some assert that it still has not been meaningfully achieved, and there is some evidence to this point.103

The story of gaining equality doesn't stop there. The Civil *133 Rights Movement, which took place during the 1950s and 60s, set out to achieve equality for blacks.104 The era is evocative of sit-ins, of struggles, quiet protests, and immortal orations such as Martin Luther King Jr.'s “I Have A Dream” speech.105 However, more to our purpose, this era ushered in several new laws which purported to equalize the status of blacks and whites.106 Among these were the Civil Rights Act of 1957, the Civil

Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.107 These laws outlawed discrimination; they were meant to give blacks the opportunities they had long lacked, and an equal chance to achieve what whites could.108 Undoing over a century of subordination, however, is a near-impossible task.109 So how did the Civil Rights regime, and the slew of laws designed to promote equality, fare in actually achieving an egalitarian society?

Contemporary Coexistence

The history of civil rights and the struggle for racial equality is of course of great import. However, to evaluate the movement for equality requires an analysis of modern society and race relations. Have the disparities been remedied? Are blacks and whites on equal footing at last? Unfortunately, it appears not: racial gaps in wealth have increased in recent decades; in 2013, the average white family possessed thirteen times the wealth of the average black family.110 In 1967, the average black family earned 55 percent of what white families earned; that figure had *134 climbed abysmally to only 59 percent in 2011.111 Some of this is due to inheritance; white families tend to have wealth to pass on, while black families do not, and wealth is easier to build upon than to build from scratch.112 Even with this, it seems shocking that given the long history of the civil rights regime and the battles it won, particularly the laws governing equal access,113 inequality should still exist so strongly in modern United States society.

The answer posited by some regarding this continued divide along racial lines is that racist attitudes continue to exist.114 In fact, some argue that despite the common notion that we live in a post-racial society, racism still exists, more sophisticated and insidious than ever.115 Racially relevant issues--inequality, discrimination, and police brutality, to name a few--continue to dominate headlines.116 Many in society appear to agree that racist thought and behavior has continued well into the twenty- first century.117 The concept has increasingly been used in conjunction with other classifications such as gender, giving rise to the notion of “intersectionality”--the notion that “[w]hen it comes to social inequality, people's lives and the organization of power in a given society are better understood as being shaped not by a single axis of social division ... but by many axes that work together and influence each other.”118 Put differently, “[r]acism intersects with class and culture and geography and even changes the way we see and value ourselves.”119 Social scientists and philosophers continue the crusade against racism and inequality, which they claim are still alive and well.120 But what of the law and its scholars?

Critical Race Theory exists as the junction between those discussing the social and political aspects of race relations, and *135 the legal analysis of those connections.121 Critical Race Theorists attempt to examine the law as it has applied to race and shaped the status of certain racial groups, particularly blacks, within society.122 And in accordance with the data and the view of some commentators, they see problems with modern society's treatment of race, particularly within the legal system.123

So, have the legal regimes put in place to ensure equality truly been ineffective? Does the legal system allow, or possibly even encourage, the unequal treatment of blacks, and relegate them to a lesser status in society? A Critical Race Theorist would say yes.124

Critical Race Theorists, examining the status of blacks in modern society, see not an unfortunate side effect of a long-gone history, but a modern system which views blacks as unequal, and threatens to keep them “in their place,” so to speak.125 As Derrick Bell explained:

But the fact of slavery refuses to fade, along with the deeply embedded personal attitudes and public policy assumptions that supported it for so long. Indeed, the racism that made slavery feasible is far from dead in the last decade of twentieth-century America; and the civil rights gains, so hard won, are being steadily eroded. Despite undeniable progress for many, no African Americans are insulated from incidents of racial discrimination. Our

careers, even our lives, are threatened because of our color. Even the most successful of us are haunted by the plight of our less fortunate brethren who struggle for experience in what some social scientists call the “underclass.” Burdened with life-long poverty and soul-devastating despair, they live beyond the pale of the American Dream. What we designate as “racial progress” is not a solution to that problem. It is a regeneration of the problem in a particularly perverse form.126

*136 Bell's notion of society on the eve of the twenty-first century parallels the thoughts of Critical Race Theorists throughout the decades:127 Before him was James Baldwin, lamenting the conditions of blacks in a society that hated and sought to repress them.128 After him are writers like Ta-Nehisi Coates, describing the disappointment blacks have with the way society has turned out for them.129 Among Critical Race Theorists there is a general consensus that the inequalities faced by blacks in societies are not only prevalent, but lasting and intentional.130

This notion of lasting inequality does not end with Critical Race Theory.131 Race relations in America have been a particularly hot topic in recent years, and many assert that inequality and racism continue to exist in modern times, particularly in connection to politics.132 Even outside of the legal and political realms, psychologists and sociologists have endeavored to understand, describe, and attempt to heal the evident racial divide in the country.133 It would appear as though American society at large is aware of a division along racial lines,134 but how far does this divide extend?

Some argue that racism in the US is more invidious than a historically charged mindset or unconscious bias135 and that the *137 law is not merely blind to racial injustice, but encourages it.136 This is seen most famously in Michelle Alexander's The New Jim Crow, which argues that the mass incarceration of blacks has led to the same subjugation of blacks that was prevalent in post-Reconstruction-era America.137 That is, Alexander argues that this disproportionately high arrest and incarceration rate among blacks is, metaphorically, the new Jim Crow.138 This approach calls out the legal system for perpetuating racism, albeit more subtly, in essentially the same way as society had done decades before.139 It directly implicates the legal and judicial systems for going beyond condoning racism; they are exacerbating racial inequality by disproportionately targeting blacks.140 This book became a bestseller, and led to changes in the judicial system which were meant to reduce this discrimination.141 Though it may be the most famous example, The New Jim Crow is not the only work which calls out the legal system for perpetuating racial inequality, either directly or indirectly, through action or inaction.142

Critical Race Theorists have also pointed out the racism inherent in policies promulgated by the government.143 After the Storm: Black Intellectuals Discuss the Meaning of Hurricane Katrina is a collection of essays criticizing the government of New Orleans for its reaction to the major 2006 storm that hit the city.144 Namely, it criticizes the failure to properly evacuate many of the city's black citizens;145 the media's representation of *138 black survivors as thugs and looters (while whites were characterized more favorably as people taking just what they needed to survive);146 and the pitiful reconstruction efforts which left blacks homeless and disenfranchised.147 The book goes further, however, than merely attributing this disparate treatment to oversight or failure to act.148 One author points out that the government of New Orleans, and even the U.S. as a whole, acted unlawfully--even criminally--in regards to certain events surrounding Katrina; she lists nine government responses which could fall under this category (failure to rescue, inadequate services/funding, and refusal to release Katrina-related papers, among other things).149 This again shows not only a failure to correct or prevent racial discrimination by others, but direct action or inaction by the government which led to exacerbation of the racial divide and increased disparities.150

Perhaps the most direct example of law contributing to racism comes from Richard Rothstein's The Color of Law.151 In this book, Rothstein argues that racial segregation is the result of governmental policies which intentionally aimed to separate the races.152 This goes beyond simple oversight, inaction, or even condonement.153 Rothstein illustrates that the government made an explicit effort to ensure that racism survived.154 For example, he discusses how New Deal agencies provided different housing *139 for its employees based on race, with blacks receiving considerably worse housing.155 He also refers to town policies forbidding African Americans from residing or being within town borders after dark.156 Rothstein also discusses several other tactics, including suppressed incomes and IRS compliance mechanisms.157 Perhaps most damning, however, is the description of state-sanctioned violence directed at blacks to get them to move out of a certain (white) neighborhood.158 These policies represent a much more blatant attempt by the law--particularly its legislative and administrative (law enforcement) sectors-- to repress and subjugate blacks.159

But what of the judicial branch? Given that in the past it was able to remedy, or attempt to remedy, racial inequality,160 could it do so now? Rothstein addresses this as well: he dedicates a chapter to government enforcement of private agreements that exacerbated racial division.161 Specifically, he addresses restrictive covenants, and how the government (particularly administrative agencies) attempted to get around judicial decisions on the matter.162 The landmark decision regarding restrictive covenants came in 1948, with Shelley v. Kraemer.163 The Court in Shelley posited that government enforcement of restrictive covenants violated the Fourteenth Amendment, even if the covenants were made by private actors.164 Here, the Court attempted to eliminate racial discrimination; however, the government still attempted to curtail this effort by disobeying the decision on the local level.165 This demonstrates one difficulty that comes with judicial efforts: those enforcing the law on the local level may decide not to fall in line with the court's ruling.166 Though this problem could exist within many areas of law, it was *140 particularly vicious with much of the Civil Rights regime; the opinions of those who wished to disenfranchise blacks were deep-seated and intense.167

Another issue that has arisen since the Civil Rights era regarding judicial attempts to ‘level the playing field’ among the races is the subtlety with which racism may be carried out.168 The recent decision of Pena-Rodriguez v. Colorado demonstrates this point.169 This case was an appeal from a criminal conviction which alleged juror bias; several members of the jury approached the defendant's counsel after the trial and described another juror's clear anti-Hispanic (the race of the defendant) bias.170 This juror had stated that the defendant was “an illegal,” and that in his experience as a police officer, “... Mexican men had a bravado that caused them to believe they could do whatever they wanted with women[,]” and that “Mexican men take whatever they want[,]” as well as other similar comments.171 The Supreme Court reversed the conviction based on the jury bias inherent in these comments.172

The Supreme Court discusses extensively in the Pena decision how important it is to eliminate racial bias, particularly in the court system.173 The Court noted “[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”174 Eliminating racial bias, it held, was important enough to allow an exception to the no-impeachment rule.175 *141 Interestingly, however, is the Court's holding that the no- impeachment rule only gives way to permit the trial court to consider evidence of a juror's statement when “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant ....”176 Thus, racial bias must be overt and obvious to even trigger its use in consideration of whether a defendant was wrongly convicted for his race.177

The judicial system is ill-equipped to eliminate racial bias or to remedy its effects.178 Shelley only gives courts the power to invalidate clauses that explicitly discriminate against blacks; homeowners can still refuse to sell to minorities, so long as they

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS, 31 Alb. L.J. Sci. &... do not name prejudice based on race as the reason, or memorialize the sentiment in writing.179 Pena explicitly states that the juror's racial bias must be clear, meaning that as long as a juror keeps their opinions to themselves, the court is powerless.180 In short, courts can only take action regarding racial bias and its effects if they are blatant.181 Because the judicial system is the enforcement mechanism of the laws passed by legislatures, this takes the teeth out of any measures passed meant to reduce unequal treatment.182

This certainly has implications for the treatment of minorities in the United States.183 Courts may be ineffective at properly protecting the rights and equality of the historically *142 disadvantaged,184 but what about remedying inequality on a global level? Is that just as unfeasible?

Tying Together Two Tenuously Tethered Tirades

The link between outer space resources and Critical Race Theory may be, at first, hard to see, particularly when Critical Race Theorists tend to look back (as with the civil rights regime) while outer space exploration is known for looking forward.185 However, Critical Race Theory has laid the foundation for the notion that the law is an insufficient tool for creating or ensuring equality.186 The current situation of outer space and states vying for its resources presents the perfect battleground on which this theory can play out.

As previously discussed, the disparities in this area are stark.187 The valuable resources of outer space are currently only even theoretically accessible to the fourteen States which possess space stations with launching capabilities, with an additional fifty-eight possessing a space station that may allow them to soon join the race for resources.188 This leaves 121 of the 193 recognized member states of the UN189 without even a remote capability of accessing these resources, nevertheless extracting or transporting them.190 Given that the desire for these resources is becoming more immediate each day (particularly as the capacity for some states to obtain them increases) and that these resources are highly desirable for both scientific research and monetary gain, a system for how these materials can be obtained *143 becomes more necessary.191

The first option would be to use the “first in time is first in right” theory that would allow each state to take as much as it wants whenever it can do so.192 In some ways, this is similar to a state of lawlessness; there is a total lack of regulation beyond ensuring that the materials belong to those who obtained them.193 To Critical Race Theorists, this is analogous to the early days of slavery, when there was no protection for the rights of slaves, merely protection of their owners' right to own or release them.194 The second option is to apportion the materials by allowing the States to capture resources while saving some of the supply for the lesser-developed States to acquire when they can. This would be analogous to affirmative action, making sure that the disadvantaged party still gets a seat at the table, even if it is done somewhat artificially.195 Other options would include a banning the extraction of these resources until the playing field is leveled, or forcing those states which extract the resources to share them with those who cannot. These options lack clear historical analogues, though the latter could be compared to communism.196

While the first option may be successful in some respects, it would do nothing to alleviate inequality; in fact, this method would implicitly advocate for inequality.197 Banning all extraction until other States catch up is simply not feasible. Given the high demand for space resources, States would not be *144 willing to wait for an indeterminate amount of time until other States catch up.198 Nor would a “sharing is caring” approach tickle the fancy of any State that expended its own resources to obtain the materials in the first place (the U.S. may be particularly opposed to this idea, given its opposition to the communist ideology and strong beliefs in American values such as working for one's own success).199 Thus, the only remaining option is to attempt

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 THE SPACE RACE: FUTILE FIGHTING FOR FINITE FINDINGS, 31 Alb. L.J. Sci. &... to artificially level the playing field. One way of doing this is to allow some resources to be saved for States who will one day be able to obtain them for themselves.200 However, this presents a multitude of problems.

As mentioned, this method is somewhat similar to the policy of affirmative action in hiring and higher-level education admittance policies.201 Such policies have been widely instituted, to mixed results and reactions.202 The issue has also been widely *145 litigated, particularly in the area of education.203 Perhaps this is because “[a]ffirmative action in education has largely been supplanted by diversity policies that eschew quotas or target enrollments but seek diversity as a part of wider policies to benefit the student community as a whole.”204 Given the controversy and opposing opinions surrounding affirmative action, it may be difficult for an entity like the UN to impose it upon the international system. The policy would be unlikely to have much State support, and may be particularly difficult to implement in an area like outer space, where there would likely be little oversight and no way to quantify and allot resources.205 This leaves only the option of attempting to level the playing field in other ways.

Even if the framework were to attempt to eschew affirmative action-type policies in favor of those meant to decrease inequality in other ways (such as financial or technological support to States which currently lack the capacity to extract resources), or eliminate inequality altogether, it would be ineffective. This method is the closest analogue to the civil rights regime.206 And this parallel demonstrates that such a policy would not work applied to outer space and the race for its resources.

As this article has demonstrated, the civil rights regime failed to remedy the disparity between blacks and whites; the laws and courts were ineffective at eliminating inequality for a number of *146 reasons.207 The intentions behind prejudice which exacerbated inequality were hard to pin down, as demonstrated by Pena and its requirement for clear-cut proof.208 The subjugation of disadvantaged groups can be reworked in subtle ways, as described in The New Jim Crow.209 Additionally, laws and rules can be ignored, and policies may even be put in place to quietly keep the status quo, as seen in The Color of Law.210 Finally, disadvantaged groups may be ignored entirely; those who needed help the most, as discussed in After the Storm, were left out completely in the rebuilding process.211

In the same vein, those currently without space programs are left out of the question. Many proposals suggest that outer space should be governed as a global commons.212 However, it is impossible for an area to be a “commons” if only a sliver of States can even access it.213 And this oligarchy will desire to keep as much of this commons to itself as possible. This will lead to a reality surprisingly similar to the historical attempts of the white upper-class to keep the black lower-class repressed.214 Those States which have the upper hand in technological ability to access materials will likely use this to rework the system in a way that gives them the advantage, or may just ignore any framework implemented to ensure equal access to space *147 resources.215

Furthermore, there is little to be done if this turns out to be the case. The mechanism which exists to provide a remedy to this kind of injustice would be an international court.216 The domestic courts in the United States failed to remedy inequality, and it is possible that any court governing international disputes over outer space resource would as well.217 Even proving that such an injustice took place would be difficult; U.S. court cases during and after the civil rights regime showed that the clear-cut evidence often required is hard to obtain.218 Beyond that, these cases demonstrate that actors may choose to skirt around these rulings, preferring to act in their self-interests than for the sake of an equal society.219 Ultimately, the civil rights regime teaches us the lesson that inequality is very difficult, if not impossible, to remediate, meaning that it is highly unlikely that there will ever be a meaningful mechanism for ensuring equal access to outer space resources.220

Conclusion

Outer space is currently, and will continue to be, a no man's land.221 While it is admirable to attempt to come up with frameworks for governing its use and the exploitation of outer *148 space resources--and I applaud those who attempt to do so, as well as those mechanisms meant to enforce these rules--this attempt will likely be unsuccessful. We have seen major inequality before, and how a society attempts to remedy it.222 The civil rights regime was meant to make everyone equal, both societally and before the law.223 But this regime was a failure,224 an indication of the future of any similar attempts to level the playing field. So, too, shall it be with outer space. The disparity between states in their ability to conduct outer space exploration and resource excavation is gross, and there is little to be done to reduce this inequality.225 The tragedy of this commons226 is that it is inherently unequal and--whether inadvertently or intentionally--will remain that way.

Footnotes a1 J.D. Candidate 2021, Albany Law School. The author would like to thank her father for all of his support throughout law school and beyond.

1 See Laurent Sibille, Space Resources, NASA, https://isru.nasa.gov/SPACERESOURCES.html (last updated July 3, 2012) (discussing that space exploration has led to the discovery of various resources); see also Resources in Space, Luxembourg Space Agency, https://space-agency.public.lu/en/space-resources/ressources-in-space.html (last updated June 17, 2020) (explaining that the Moon and planets hold valuable resources).

2 See Sibille, supra note 1.

3 See id.

4 See id. (providing that space missions are planned to discover resource potential).

5 See Leonard David, NASA Proposes New Rules for Moon-Focused Space Race, Sci. Am. (May 21, 2020), https:// www.scientificamerican.com/article/nasa-proposes-new-rules-for-moon-focused-space-race/ (explaining that many countries are developing their space programs in an effort to develop the moon's resources).

6 See Space, U.S. Diplomatic Mission to Germany, https://usa.usembassy.de/technology-space.htm (last visited Sept. 14, 2020) (explaining the use of robotics and aerospace technology programs).

7 See Chronology of Mars Exploration, NASA, https://nssdc.gsfc.nasa.gov/planetary/chronology_mars.html (last visited Nov. 11, 2019).

8 See Science Overview, NASA, https://mars.nasa.gov/mars2020/mission/science/for-scientists/science-overview/ (last visited Sept. 26, 2020) (discussing Mars 2020 mission objectives).

9 Member States, United Nations, https://www.un.org/en/sections/member-states/growth-united-nations-membership-1945-present/ index.html (last visited Sept. 26, 2020).

10 Keith Lemons, How Many Countries Have Space Programs?, Quora (Sept. 12, 2019), https://www.quora.com/How-many-countries- have-space-programs.

11 Id.

12 The notion of “first in time” is a property doctrine which provides for acquisition of property by discovery or capture; that is, whatever a person takes possession of, before others can, is presumed to be their property. For an explanation of the history of the doctrine, including its roots in Roman law and survival through governmental changes, see Jesse Dukeminier et al., Property 12-14 (8th ed. 2014). See also Lawrence Berger, An Analysis of the Doctrine that “First in Time is First in Right,” 64 Neb. L. Rev. 349 (1985).

13 Ma Xinmin, Deputy Dir. Gen., Dep't of Treaty and L., Ministry of Foreign Aff., China, Speech at the United Nations/China/APSCO Workshop on Space Law: The Development Of Space Law: Framework, Objectives, and Orientations (Nov. 17, 2014), https://

www.unoosa.org/documents/pdf/spacelaw/activities/2014/splaw2014-keynote.pdf (explaining that in space law, treaties and customs have been the main source of law).

14 Susan J. Buck, The Global Commons: An Introduction xiii (2013 ed. 1998).

15 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, United Nations Off. for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/ introouterspacetreaty.html (last visited Nov. 11, 2019) (emphasis added).

16 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, United Nations Off. for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html (last visited Nov. 11, 2019).

17 See Space Law Treaties and Principles, United Nations Off. for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/ spacelaw/treaties.html (last visited Nov. 11, 2019) (stating that The Moon Treaty became active on July 11, 1984).

18 See, e.g., Exec. Order No. 13914, 85 Fed. Reg. 20381 (Apr. 6, 2020) (stating that partnerships should be developed for space exploration, but there remain questions as to the right to use and space resources); C. Todd Lopez, DOD Official: Maintaining Space Dominance ‘Pivotal’ for U.S. Warfighters, U.S. Dept. of Defense (Mar. 29, 2019), https://www.defense.gov/Explore/News/Article/ Article/1800891/dod-official-maintaining-space-dominance-pivotal-for-us-warfighters/ (explaining that the United States urgently needs to step up its response to China and Russia's space gains); Vladimir Soldaktin, Russia Wants to Join Luxembourg in Space Mining, Reuters (Mar. 6, 2019), https://www.reuters.com/article/us-luxembourg-russia-space/russia-wants-to-join-luxembourg-in- space-mining-idUSKCN1QN1OQ (explaining Luxembourg's space mining prospects); Andrew Jones, From a Farside First to a Cislunar Dominance? China Appears to Want to Establish ‘Space Economic Zone’ Worth Trillions, SPACENEWS (Feb. 15, 2020), https://spacenews.com/from-a-farside-first-to-cislunar-dominance-china-appears-to-want-to-establish-space-economic-zone- worth-trillions/ (discussing that China plans to build an “Earth-moon space economic zone”).

19 H.R. 1508, 114th Cong. (2015).

20 See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, supra note 15.

21 See, e.g., Abigail D. Pershing, Interpreting the Outer Space Treaty's Non-Appropriation Principle: Customary International Law from 1967 to Today, 44 Yale J. Int'l L. 149 (2019) (arguing for leasing system based on United Nations Convention on the Law of the Sea); Susan Cahill, Give Me My Space: Implications for Permitting National Appropriation of the Geostationary Orbit, 19 Wis. Int'l L.J. 231 (2001) (arguing for a better balance between necessity of equitable allocation and efficient use of space orbits); Kevin V. Cook, The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty, 11 Geo. Int'l Envt'l. L. Rev. 647 (1999) (arguing for development of the moon in context of countries' differences being resolved using framework similar to United Nations Convention on the Law of the Sea).

22 See Access to Space for All, United Nations Off. for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/access2space4all/ index.html (last visited Nov. 11, 2019) (stating that the Access to Space for All initiative strives to provide support to emerging space programs).

23 See generally Civil Rights Movement, History (Oct. 27, 2009), https://www.history.com/topics/black-history/civil-rights-movement (explaining the history of the civil rights movement).

24 See generally Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964).

25 See Simonetta Di Pippo, Space Technology and the Implementation of the 2030 Agenda, UN Chronicle, https://www.un.org/en/ chronicle/article/space-technology-and-implementation-2030-agenda (last visited Sep. 13, 2020) (discussing that the UN is working to ensure access to space benefits for all).

26 See What Were the Failures of the Civil Rights Movement? Veterans of the Civ. Rts Movement, https://www.crmvet.org/faq/faqfail.htm (last visited Sep. 13, 2020) (providing views on the failures of the civil rights movement).

27 “The term ‘Critical Race Theory’ refers to a range of legal theories that are premised on the belief that race, ethnicity and other identifying characteristics of marginalized ‘outgroups' are central to the operation of the legal system.” Gerhardt et al., Constitutional Theory: Arguments and Perspectives 575 (LexisNexis, 3rd ed. 2007).

28 See Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (Basic Books Inc., 1989) (discussing how a fictional character is used to describe the civil rights movement).

29 See id. at 52-53 (explaining that leaders sought social programs instead of economic and political change).

30 See Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America 102 (2017) (explaining how the IRS helped the South evade the Brown v. Board of Education ruling by granting tax exemptions to private whites-only academic institutions).

31 Gerhardt, supra note 27.

32 See Rothstein, supra note 30 (discussing that the United States government played a role by granting tax exemptions to white only academies, despite civil rights efforts).

33 See generally International Law, Cornell L. Sch., https://www.law.cornell.edu/wex/international_law (last visited Sept. 12, 2020) (defining international law as a separate legal discipline that “consists of rules and principles governing the relations and dealings of nations with each other, as well as the relations between states and individuals, and relations between international organizations.”).

34 See Charter of the United Nations, United Nations, https://www.un.org/en/charter-united-nations/ (last visited Sept. 12, 2020) (discussing that The Charter of the United Nations was signed in San Francisco on June 26, 1945).

35 See Uphold International Law, United Nations, https://www.un.org/en/sections/what-we-do/uphold-international-law/index.html (last visited Sept. 12, 2020) (providing that the United Nations has various means to develop and create international law).

36 See id. (explaining that when Member States sign and ratify Multilateral Treaties they agree to carry out the provisions, differing from lodging reservations or objections to the treaties).

37 See Int'l Ct. of Just., https://www.icj-cij.org/ (last visited Sept. 12, 2020) (stating that The International Court of Justice is the principal judicial body of the UN).

38 See Frederic L. Kirgis, Enforcing International Law, 1 Am. Soc'y of Int'l Law (1996), https://www.asil.org/insights/volume/1/issue/1/ enforcing-international-law (last visited Sept. 12, 2020) (discussing the limited and imperfect choice of enforcement mechanisms available to the UN, including Chapter VII of the UN Charter).

39 See id.; see also Chris McGreal, 70 Years and Half a Trillion Dollars Later: What has the UN Achieved?, The Guardian (Sept 18, 2015), https://www.theguardian.com/world/2015/sep/07/what-has-the-un-achieved-united-nations [hereinafter “What has the UN Achieved?”] (discussing how the current fragmented and ineffective government of the UN has made it inefficient).

40 See McGreal, supra note 39 (discussing how the UN has spent more than half a trillion dollars in 70 years and has not accomplished what it was created to do); see also Protect Human Rights, United Nations, https://www.un.org/en/sections/what-we-do/protect- human-rights/index.html (last visited Sept. 12, 2020) (explaining how the UN promotes and protects human rights).

41 See United Nations Security Council, United Nations, https://www.un.org/securitycouncil/ (last visited Sept. 12, 2020) (providing that the Security Council's main role is to maintain international peace and security); see Kirgis, supra note 38 (discussing that the sanctions include diplomatic, economic and military).

42 See Candis Watts Smith, After the Civil Rights Era, White Americans Failed to Support Systemic Change to End Racism. Will They Now?, The Conversation (Aug. 13, 2020, 8:10 AM), https://theconversation.com/after-the-civil-rights-era-white-americans-failed-to- support-systemic-change-to-end-racism-will-they-now-141954 (discussing the history of civil rights in America and the persistence of racial inequality).

43 Charter of the United Nations, supra note 34.

44 U.N. Charter art. 1, ¶ 3.

45 U.N. Charter art. 2, ¶¶ 2-3.

46 See Sonia Elks, Space Jam? Companies Risk Clutter, Conflict in Race for the Skies, Reuters (July 24, 2019, 8:17 PM), https://www.reuters.com/article/us-global-space-business-feature/space-jam-companies-risk-clutter-conflict-in-race-for- the-skies-idUSKCN1UK015 (stating that recent growth in space-related businesses has created concern about potential conflicts over resources).

47 See generally G.A. Draft Res. U.N. Doc. A/C.4/74/L. 7, at 1, 2 (Oct. 18, 2019) (draft resolution) (explaining that international cooperation is important for the future of space).

48 See id. at 2.

49 See generally International Agreements, U.S. Dep't of Health & Human Servs., https://www.phe.gov/s3/law/Pages/International.aspx (last updated Feb. 15, 2018) (defining treaty as a binding agreement between countries and may be called a Convention).

50 See discussion, supra p. 119.

51 This becomes necessary due to the finite space for satellites and other geostationary orbits. Though it may seem counterintuitive given the vastness of space, there is an immediate need for regulation of this space. See Cahill, supra note 21.

52 See Space Law Treaties and Principles, supra note 17.

53 See generally Jason Krause, 5 United Nations Treaties in Outer Space, ABA Journal (Apr. 1, 2017, 4:45 AM), https:// www.abajournal.com/magazine/article/space_law (discussing international space treaties).

54 See Committee on the Peaceful Uses of Outer Space, United Nations Off. for Outer Space Affairs http://www.unoosa.org/oosa/en/ ourwork/copuos/index.html (last visited Sept. 13, 2020).

55 See United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER), United Nations Off. for Outer Space Affairs http://www.unoosa.org/oosa/en/ourwork/un-spider/index.html (last visited Sept. 13, 2020).

56 See generally Office Structure, United Nations Off. for Outer Space Affairs, https://www.unoosa.org/oosa/en/aboutus/structure.html (last visited Sept. 13, 2020).

57 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, supra note 15.

58 G.A, Res. 2222 (XXI), at 13 (Dec. 19, 1966).

59 Id. at 14,

60 Id. at 13-14.

61 See id. at 14.

62 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, supra note 16.

63 Id.

64 Id.

65 See id.

66 Id. (stating that the Moon Treaty became active in 1984)., See Jennifer Leman, Construction Company Caterpillar Wants to Mine the Moon, Popular Mechanics (Oct. 30, 2019), https://www.popularmechanics.com/space/moon-mars/a29587959/caterpillar-space- mining/.

67 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, supra note 16; See Leman, supra note 66.

68 Space Resource Exploration and Utilization Act of 2015, H.R. 1508, 114th Cong. (2015).

69 See Space Law: Resolutions, United Nations Off. for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/spacelaw/ resolutions.html (last visited Oct. 6, 2020).; G.A 65th General Assembly.

70 See Cahill, supra note 21, at 231 (explaining that only a certain number of satellites can orbit at one time).

71 Id.

72 Pershing, supra note 21, at 150 (discussing the effects of a “free-for-all” in space).

73 See Cahill, supra note 21, at 232, 248 (arguing that criteria should be placed over the rights of geostationary orbit to benefit all nations); see also Cook, supra note 21; Pershing, supra note 21.

74 See Cahill, supra note 21, at 248 (discussing rights of geostationary orbit sites).

75 See Cook, supra note 21, at 648 (providing ideas for a new governance of space resources); see also Pershing, supra note 21, at 151 (arguing for an international leasing system).

76 See Cook, supra note 21, at 648, 656-57 (explaining that under the Common Heritage Doctrine, outer space is not “subject to national appropriation.”)

77 See Pershing, supra note 21, at 151 (arguing that outer space governance should be modeled after the United Nations Convention on the Law of the Sea).

78 See United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

79 Cook, supra note 21, at 648.

80 Id.

81 Leo B. Malagar & Marlo Apalisok Magdoza-Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 17 B.U. Int'l L.J. 311, 313 (1999) (arguing that UN efforts to create effective intellectual property law are not sufficient).

82 See Pershing, supra note 21, at 150-51.

83 Id. at 150.

84 Id. at 151, 173-74.

85 Thomas R. Irwin, Space Rocks: A Proposal to Govern the Development of Outer Space and Its Resources, 76 Ohio St. L.J. 217, 233-34 (2015).

86 See id. at 234-38.

87 See id. at 241 (discussing the need to govern the allocation of resources to nations).

88 See generally Eric Olin Wright & Joel Rogers, American Society: How it actually works., 312-63 (W. W. Norton & Co. 2d ed. 2009) (discussing the racial inequalities present from the beginning of America to the present).

89 See Samuel H. Williamson & Louis P. Cain, Measuring Slavery in 2016 Dollars*, MeasuringWorth, https:// www.measuringworth.com/slavery.php (last visited Sept. 12, 2020) (discussing that profitability motivated the ownership of slaves).

90 See Black Codes, His., https://www.history.com/topics/black-history/black-codes (last updated Oct. 10, 2019) (explaining the laws that limited black freedom).

91 See A Brief History of Civil Rights in the United States: Jim Crow Era, Geo. Law Libr., https://guides.ll.georgetown.edu/c.php? g=592919&p=4172697 (last updated July 29, 2020) (explaining the Jim Crow Era).

92 See e.g., Cumming v. Richmond Cty. Bd. of Educ., 175 U.S. 541, 545 (1899) (rejecting the argument that a Board of Education acted in bad faith by providing funds for a white high school while suspending funds to a black school); White Southern Responses to Black Emancipation, PBS, https://www.pbs.org/wgbh/americanexperience/features/reconstruction-white-southern-responses-black- emancipation/ (last visited Oct. 6, 2020) (discussing the separation society allowed).

93 See Plessy v. Ferguson, 163 U.S. 537 (1896).

94 Id. at 551.

95 See The Aftermath of the Plessy v. Ferguson Ruling, Making of the Mod. u.s., http://projects.leadr.msu.edu/makingmodernus/exhibits/ show/plessy-v--ferguson-1896/the-aftermath-of-the-plessy-v- (last visited Sept. 10, 2020) (discussing legal segregation).

96 Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (overruling the “separate but equal” doctrine).

97 Id. at 495.

98 See id. (“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.”).

99 Id. at 493.

100 Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955).

101 See id. (“The burden rests upon the [schools] to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.”).

102 See, e.g., Bell, supra note 28, at 104 (arguing in his chapter entitled “Neither Separate Schools Nor Mixed Schools,” that school desegregation was actually harmful to black students). Indeed, the chapter is subtitled “The Chronicle of the Sacrificed Black Schoolchildren.” He has echoed this notion more recently as well. See Lisa Trei, Black Children Might Have Been Better Off Without Brown V. Board, Bell Says, Stan. Rep. (Apr. 21, 2004), https://news.standford.edu/news/2004/april21/brownbell-421.html.

103 See Will Stancil, School Segregation Is Not a Myth, Atlantic (Mar. 14, 2018), https://www.theatlantic.com/education/archive/2018/03/ school-segregation-is-not-a-myth/555614/ (explaining how the number of segregated schools has nearly doubled between 1996 and 2016).

104 See Civil Rights Movement, Hist., https://www.history.com/topics/black-history/civil-rights-movement (last updated June 23, 2020) (providing background information on the Civil Rights Movement between the 1950's through the 1960's).

105 Martin Luther King, Jr., Address at the March on Washington for Jobs and Freedom: I Have a Dream (Aug. 28, 1963) [hereinafter King's speech].

106 See Civil Rights Movement, supra note 104 (discussing the civil rights era).

107 See id.

108 See id. (“The efforts of civil rights activists and countless protesters of all races brought about legislation to end segregation, Black voter suppression, and discriminatory employment and housing practices.”).

109 Beth Porier, ‘Failed Promise’ of Civil Rights Movement, Harv. Gazette (Mar. 11, 2004), http://www.news.harvard.edu/ gazette/2004/03/failed-promise-of-civil-rights-movement (“Even as the Civil Rights Movement struck down legal barriers, it failed to dismantle economic barriers ... [and] [e]ven as it ended the violence of segregation, it failed to diminish the violence of poverty.”).

110 Keith Payne, The Broken Ladder: How Inequality Affects the way we Think, Live, and Die 158 (Penguin Books 2017).

111 Id at 157.

112 Id. at 158.

113 See Paul Gowder, Equal Law in an Unequal World 99 Iowa L. Rev. 1021, 1023 (2014) (stating that equality laws may promote inequalities).

114 See Mualana Kalanga, Introduction to Black Studies, in Racism: Essential Readings 209 (Ellis Cashmore & James Jennings ed., 2013).

115 See Ibram x. Kendi, Stamped from the Beginning: The Definitive History of Racist Ideas in America 1-2 (2017) (providing statistics of racial inequalities).

116 See id. (asserting that racial disparities should not be a surprise).

117 See id. at 8 (asserting that the effects of racist policies are racial disparities).

118 Patricia Hill Collins & Sirma Bilge, Intersectionality 2 (2016).

119 Ibram X. Kendi, How to be an Antiracist (2019).

120 Id. at 22 (discussing that Critical Race Theory challenged legal perspectives).

121 See Kevin Brown & Darrell D. Jackson, The History and Conceptual Elements of Critical Race Theory, in Handbook of Critical Race Theory in Education 12 (Marvin Lynn & Adrienne Dixson ed., 2013).

122 Id. at 13 (stating that the law did not sufficiently discuss the struggles of blacks).

123 Id. at 14 (discussing that legal scholars sought to understand and change the racial oppression present in the legal world).

124 See Athena D. Mutua, The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship, 84 Denv. U. L Rev. 329, 333-34 (2006).

125 See id.

126 Derrick Bell, Faces At The Bottom Of The Well: The Permanence Of Racism 3 (1992).

127 See e.g., James Baldwin, The Fire Next Time 7 (1963); Ta-Nehisi Coates, We Were Eight Years in Power 15-16 (2017).

128 See Baldwin, supra note 127 at 7 (“You were born where you were born and faced the future that you faced because you were black and for no other reason.”) (“You were born into a society which spelled out with brutal clarity, and in as many ways as possible, that you were a worthless human being.”) (emphasis in original).

129 See Ta-Nehisi Coates, supra note 127 at 15-16 (“The civil rights generation is exiting the American stage--not in a haze of nostalgia but in a cloud of gloom, troubled by the persistence of racism, the apparent weakness of the generation following in its wake, and the seeming indifference of much of the country to black America's fate.”).

130 See Mutua, supra note 124 at 353.

131 See Pew Research Center, Across Racial Lines, More Say Nation Needs to Make Changes to Achieve Racial Equality 1, 7 (2015).

132 See, e.g., Amy Harmon, How Much Racism Do You Face Every Day?, NY Times (Jan. 20, 2020), https://www.nytimes.com/ interactive/2020/us/racism-african-americans-quiz.html; Montel Williams, Racism is a Potent Drug. It got Trump Elected and Could Win Him a 2nd Term., USA Today (Jul. 18, 2019, 10:51 AM), https://www.usatoday.com/story/opinion/2019/07/18/racism-is- trump-2020-strategy-resist-by-voting-montel-williams-column/1754884001/.

133 See generally Beverly Daniel Tatum, “Why are All the Black Kids Sitting Together in the Cafeteria?” And Other Conversations About Race (1997).

134 See Pew Research Center, supra note 131.

135 See Michelle Alexander, The New Jim Crow, 9 Ohio St. J. Crim. L. 7 (2011).

136 Id.

137 Michelle Alexander, The New Jim Crow:Mass Incarceration in the Age of Colorblindness 1-2, 6-7 (2010).

138 Id. at 58.

139 Id. at 3-4.

140 See id. at 4 (discussing the many ways that a past conviction record affects African Americans throughout the United States forcing them into a “second-class citizenship[.]”).

141 See Michelle Alexander, The Newest Jim Crow, NY Times (Nov. 18, 2018), https://www.nytimes.com/2018/11/08/opinion/sunday/ criminal-justice-reforms-race-technology.html; see also Sarah Childress, Michelle Alexander: “A System of Racial and Social Control,” PBS: Frontline, (Apr. 29, 2014), https://www.pbs.org/wgbh/frontline/article/michelle-alexander-a-system-of-racial-and- social-control/.

142 The Newest Jim Crow, supra note 141; see also Tommy Curry, Critical Race Theory, Britannica, https://www.britannica.com/topic/ critical-race-theory.; see generally, Rothstein supra note 30.

143 See Curry, supra note 142.

144 After the Storm: Black Intellectuals Explore The Meaning Of Hurricane Katrina (David D. Troutt ed., 2006).

145 See Sheryll Cashin, Katrina: The American Dilemma Redux, in After the Storm, supra note 144 at 31 (“The people literally and figuratively left behind put a face on concentrated black poverty for a nation that has long since moved on to other business.”).

146 Cheryl I. Harris & Devon W. Carbado, Loot or Find: Fact or Frame?, in After the Storm, Black Intellectuals Explore The Meaning Of Hurricane Katrina 87-104 (David D. Troutt ed., 2006).

147 See David D. Troutt, Many Thousands, Gone, Again, in After the Storm, supra note 144, at 19 (“A hundred and fifty days after Katrina turned into a breeze, a former resident of New Orleans public housing could learn no more about her future than from a Web site explaining that the projects would remain closed for the foreseeable future.”).

148 See After the Storm: Black Intellectuals Explore The Meaning Of Hurricane Katrina, supra note 144.

149 See Katheryn Russell-Brown, While Visions of Deviance Danced in Their Heads, in After the Storm: Black Intellectuals Explore The Meaning Of Hurricane Katrina 114-15 (David D. Troutt ed., 2006).

150 See generally, Prager & Shepherd, The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets, 34 Annu Rev Sociol. 198, 181-209 (2008).

151 See generally, Rothstein supra note 30.

152 Id.

153 Id.

154 Id.

155 Id. at 19.

156 Id. at 42.

157 See Rothstein supra note 30, at 101-76.

158 Id. at 139-51. 159 See generally, Ava DuVernay, 13th, Netflix (Sept. 30, 2016), https://www.netflix.com/ (documenting a history of discrimination focusing on the 13th amendment and subsequent legislation that affected the black community).

160 See discussion of landmark court cases, supra pp. 130-31.

161 Rothstein, supra note 30, at 77-99.

162 Id.

163 Shelley v. Kraemer, 334 U.S. 1 (1948).

164 Id. at 11.

165 See Rothstein, supra note 30, at 85-91 (explaining the divide between the government and the Supreme Court on eliminating racial discrimination).

166 See id.

167 See Alana Semuels, ‘Segregation Had to be Invented’, The Atlantic (Feb. 17, 2017), https://www.theatlantic.com/business/ archive/2017/02/segregation-invented/517158/ (explaining the forms of disenfranchising black voters that took place, especially in late 19th century and early 20th century).

168 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017) (discussing a juror member's nonchalant racial remarks that were clearly a stereotype he intended to use against the defendant).

169 Id.

170 Id. at 862.

171 Id.

172 Id. at 871.

173 Id. at 868.

174 Pena-Rodriguez, 137 S. Ct. at 867.

175 See id. at 870. This is certainly not the first time the Court has made an exception so as to eliminate the effects of racial bias. In the landmark case of Loving v. Virginia, the Court stepped into the traditional purview of the state when it invalidated an anti- miscegenation statute on the grounds that “[t]here can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Loving v. Virginia, 388 U.S. 1, 12 (1967).

176 Pena-Rodriguez, 137 S. Ct. at 869.

177 Id.

178 See Jeffrey J. Rachlinski, et. al., Does Unconscious Racial Bias Affect Trial Judges? 84 Notre Dame L. Rev. 1195, 1195, 1221-22 (2009) (discussing research that supports the point that judges, just as others, including jurors, harbor implicit biases that can influence their judgement when reviewing a case).

179 See Shelley, 334 U.S at 19, 20.

180 Pena-Rodriguez, 137 S. Ct. at 857, 861, 870.

181 Justice Marshall makes a similar observation in the Supreme Court case of Batson v. Kentucky, pointing out that allowing defendants to challenge racially discriminatory use of peremptory challenges in illegitimate cases will not end such use because “defendants cannot attack the discriminatory use of peremptory challenges at all unless the challenges are so flagrant as to establish a prima facie case.” Batson v. Kentucky, 476 U.S. 79, 105 (1986).

182 See U.S. Const. art. III, § 2, cl. 1 (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States ...”).

183 See Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. Of Am. Hist. 92, 92-93 (2004) (exploring the failure of the courts to rectify racial injustice after Brown v. Board of Education).

184 See id. (exploring the failure of the courts to rectify racial injustice and protect the rights of blacks after Brown v. Board of Education).

185 See Brown & Jackson, supra note 121; see Leonard David, supra note 5.

186 See Jeffrey J. Pyle, Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism, 40 B.C.L. Rev. 787, 787 (1999) (arguing that the rule of law is a “false promise of principled government”).

187 See Competing in Space, NASA, https://www.nasic.af.mil/Portals/19/documents/Space_Glossy_FINAL--15Jan_Single_Page.pdf? ver=2019-01-23-150035-697 (highlighting global disparities in progress in technology that can access space resources).

188 See id. (discussing the countries that have the capabilities right now for any type of aerial technology).

189 See Member States, United Nations, https://www.un.org/en/member-states/ (listing all the member states of U.N.) (last visited Sep. 17, 2020).

190 See List of Government Space Agencies, civitas-stl.com, https://www.civitas-stl.com/civ1819/Government-space-agencies.pdf (last visited Aug. 31, 2020) (providing a list of all government space agencies with space stations and launch capabilities).

191 See U.N. GAOR, 73rd Sess., 26th. mtg. at 1, U.N. Doc. GA/12083 (Oct. 26, 2018) (explaining that space exploration must benefit everyone).

192 See Berger, supra note 12; see Louis de Gouyon Matignon, The First Come, First Served Technique in Space Law, Space Legal Issues (May 13, 2020), https://www.spacelegalissues.com/the-first-come-first-served-technique-in-space-law/ (discussing the technique applied to space law).

193 See id. (discussing how the first come, first served principle would be “tak[ing states] into the grabbing dynamics, like what is happening on Earth.”).

194 See Vernellia R. Randal, Slavery (1787 - 1863): Selected Laws and Policies affecting AfricanAmericans, Race, Racism & the Law, https://racism.org/articles/citizenship-rights/slavery-to-reparations/slavery-2/118-laws-related-to-slavery/801-aalaws01-2 (last visited Sept. 11, 2020) (including laws which set the price of a slave, penalize those who harbor fugitive slaves, and allowing for manumission of slaves by will).

195 See Affirmative Action, Bouvier Law Dictionary (2012) (“Affirmative action is the use of recruitment, incentives, and preferences in hiring and advancement to promote members of historically disadvantaged groups in education, the workplace, and the award of government contracts.”).

196 See id.

197 See de Gouyon Matignon, supra note 192 (discussing an allocation method will work better than the first come, first serve).

198 See Exec. Order No. 13,914, 85 Fed. Reg. 20,381 (Apr. 6, 2020) (“Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law.”).

199 See Sean Illing, Why So Many People Who Need The Government Hate It, Vox (Dec. 21, 2019, 10:26 AM), https://www.vox.com/2018/8/17/17675100/suzanne-mettler-government-citizen-disconnect-welfare (“About [forty-four] percent of Americans have unfavorable views of welfare .... They're blind to their own relationship to government, and so they assume welfare is something ‘other’ people get.”); see also Richard Nixon, Vice President, United States, The Meaning of Communism to Americans (“We recognize that we must retain our present military and economic advantage over the communist bloc, an advantage which deters a hot war and which counters the communist threat in the cold war.”)

200 See Building Blocks for the Development of an International Framework on Space Resource Activities, The Hague Int'l Space Resources Governance Working Group (Nov. 19, 2019). One could make the argument that space is infinite, and therefore the resources contained within it are theoretically infinite as well. However, the accessibility to these resources is significantly limited, thus the resources are as well. See Di Pippo, supra note 25.

201 See Robert Fullinwider, Affirmative Action, Stanford Encyclopedia of Philosophy (revised Apr. 9, 2018), https://plato.stanford.edu/ archives/sum2018/entries/affirmative-action/ (“‘Affirmative Action’ means positive steps taken to increase the representation of women and minorities in areas ... from which they have been historically excluded.”)

202 See, e.g., Richard Sander & Stuart Taylor Jr., The Painful Truth About Affirmative Action, The Atlantic (Oct. 2, 2012), https:// www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/; Bret Stephens, The Curse of Affirmative Action, N.Y. Times (Oct. 20, 2018), https://www.nytimes.com/2018/10/19/opinion/harvard-case-affirmative-action.html; but see e.g., Orlando Patterson, Affirmative Action: The Sequel, N.Y. Times (Jun. 22, 2003), https://www.nytimes.com/2003/06/22/ opinion/affirmative-action-the-sequel.html?searchResultPosition=6; John Cassidy, Why America Still Needs Affirmative Action, The New Yorker (Jun. 27, 2013), https://www.newyorker.com/news/john-cassidy/why-america-still-needs-affirmative-action.

203 See, e.g., Anemona Hartocollis, The Affirmative Action Battle at Harvard is Not Over, N.Y. Times (Feb 18, 2020), https:// www.nytimes.com/2020/02/18/us/affirmative-action-harvard.html?searchResultPosition=1 (discussing an affirmative action suit, in which Asian-American students have taken Harvard to court over alleged admission discrimination).

204 Affirmative Action, supra note 195.

205 See Exec. Order No. 13,914, supra note 198 (stating that America is willing to cooperate in international space affairs, but does not recognize space as a global commons); cf. Building Blocks for the Development of an International Framework on Space Resource Activities, supra note 200 (stating provisions that can create oversight of space resource utilization.)

206 Compare Building Blocks for the Development of an International Framework on Space Resource Activities, supra note 200 (proposing that the global community should participate in a “benefit-sharing” scheme in the space race, especially to help developing countries), with Fullinwider, supra note 201 (stating that affirmative action is better for representing groups who were historically underrepresented or excluded from the areas in question.)

207 See Beth Potier, ‘Failed Promise’ of Civil Rights Movement, The Harvard Gazette, Mar. 11, 2004 (stating that even decades after the Civil Right Movement of the 1960s, the “[c]urrent statistics illustrate a yawning gap between black and white Americans in housing, health care, life expectancy, infant mortality, and income[.]”).

208 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017).

209 See Alexander, supra note 141 (discussing the use of algorithms in the criminal justice system, even though they heavily rely on biases); Michelle Alexander, The New Jim Crow, https://newjimcrow.com/about (last visited Oct. 31, 2020).

210 See Rothstein, supra note 30, at viii (discussing the segregation by redlining and the effects of that through the present time).

211 Thomas W. Joo, Natural Is Not in It: Disaster, Race, And the Built Environment Review of After the Storm: Black Intellectuals Explore the Meaning of Hurricane Katrina, 56 Clev. St. L. Rev. 403, 415 (2008) (reviewing David Dante Troutt, After the Storm: Black Intellectuals Explore the Meaning of Hurricane Katrina (2006)).

212 See Buck, supra note 14, at 137 (discussing the similarity between nonrenewable common pool resources on Earth and in outer space).

213 See id. at 6 (explaining that commons are resource domains shared by either a number of nations or every nation).

214 See Rothstein, supra note 30, at 59 (explaining the historical success of zoning ordinances in keeping lower-class African Americans out of white neighborhoods).

215 See Malagar & Magdoza-Malagar, supra note 81, at 343 (arguing that despite efforts to equalize the distribution of natural resources, developed states will inevitably possess the technology and money needed to exploit these natural resources).

216 Morris D. Forkosch, Outer Space and Legal Liability, 121 (1982).

217 See also id. at 121-22 (explaining that an international court to resolve such disputes over outer space resources is likely to fail, based on historic attempts of international institutions, agencies, and commissions that were created with little success, especially if such an international court cannot overcome self-serving tendencies, much like the U.S. courts' failure to remedy inequality).

218 See Gregor Mauc̆ec, Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof, 33(85) Utrecht J. Int. Eur. Law 5, 6 (2017).

219 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869-870 (2017) (stating that a juror chose to use a “dangerous racial stereotype” in determining the defendant's guilt, rather than actual evidence).

220 See Potier, supra note 207 (discussing the inequalities still persistent within our society).

221 See Hannah Smith, No Man's Land: 3 Territories that are still unclaimed, The World (June 26, 2013, 4:53 PM), https://www.pri.org/ stories/2013-06-26/no-man-s-land-3-territories-are-still-unclaimed (stating that the exploration of space is for the good of all mankind and no sovereignty can claim any part of it as its own).

222 See Rebecca Hamlin, Civil Rights, Britannica, https://www.britannica.com/topic/civil-rights (last updated Aug. 24, 2020) (stating that when there is inequality and when enforcement of rights fails, a movement emerges to protect those rights).

223 See id.

224 See Potier, supra note 207 (discussing that inequalities still exist even after the Civil Rights Movement).

225 See Tyler Way, The Space Gap: Access to Technology, and the Perpetuation of Poverty, 5 Int'l ResearchScape J. 1 (2018) (discussing the unfair inequality between economic development in states that have access to technology to develop more and those states that do not have the access).

226 Jim Chappelow, Tragedy of The Commons, Investopedia, https://www.investopedia.com/terms/t/tragedy-of-the-commons.asp (last updated Sep. 7 2020) (defining the “tragedy of the commons” as “an economics problem in which every individual has an incentive to consume a resource, but at the expense of every other individual--with no way to exclude anyone from consuming.”).

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