Faculty Scholarship Examines Race and Law
Demonstrations nationwide in recent months have challenged longstanding barriers to racial equity and reinvigorated the drive for reforms.
In light of the changed landscape, many lawyers and legal scholars have placed new emphasis on addressing such concerns as police brutality, the link between race and environmental injustice, Confederate iconography, disparate court outcomes for people of color and the legacy of Jim Crow.
Faculty at the University of Virginia School of Law have been leaders in studying and discussing these topics, and others like them, over time.
In addition to institutional efforts such as the Center for the Study of Race and Law, law faculty are leading dialogue and reform efforts. The following is a sampling of recent scholarship and initiatives in the areas of criminal justice, discrimination, legal history and public policy.
In her paper “Police Shootings: Is Accountability the Enemy of Prevention?,” Professor Barbara Armacost ’89, a former UVA nurse, argues officer-involved shootings should be reviewed in the same way that medical mistakes are.
Professor Josh Bowers suggests how to prevent racially discriminatory enforcement in his co-authored paper “Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin” and “Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a ‘Pointless Indignity.’”
Professor Anne Coughlin and student Hunter Bezner ’21 co-authored a Washington Post op-ed warning about racial discrepancies with pandemic-related regulations and how enforcement could mirror Jim Crow-era laws.
In his co-authored paper “Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums,” Professor Joshua Fischman explores how racial disparities are impacted when the U.S. Sentencing Guidelines are made less binding.
Professor Thomas Frampton examines why the process of striking jurors “for cause” results in racially lopsided juries in his paper “For Cause: Rethinking Racial Exclusion and the American Jury.” Frampton’s paper “The Jim Crow Jury” was cited by the U.S. Supreme Court in Ramos v. Louisiana, which struck down nonunanimous jury verdicts.
A coalition of criminal justice scholars, including Professor Rachel Harmon, released a list of reforms to address problems in American policing. The authors’ report, “Changing the Law to Change Policing: First Steps,” explains why the structure and governance of policing should be rethought, while looking at the appropriate role of police in achieving public safety.
For his co-authored paper “Evidence-Based Sentencing: Public Openness and Opposition to Using Gender, Age, and Race as Risk Factors for Recidivism,” Professor John Monahan surveyed 600 people on using race, gender and age as a factor in sentencing.
In her co-authored paper “Misdemeanors by the Numbers,” Professor Megan Stevenson presents a detailed documentation of misdemeanor case processing that reveals disparate impacts on the poor and people of color.
Professor Kim Forde-Mazrui, director of the Center for the Study of Race and Law, explores in his paper “The Canary-Blind Constitution: Must Government Ignore Racial Inequality?” that “colorblind” equal protection doctrine arguably prohibits government from reducing racial disparities in public life but, he contends, government is constitutionally permitted to address the root causes of racial disparities provided it targets those causes and not a racial group.
Author of the book “When Is Discrimination Wrong?,” Professor Deborah Hellman has centered much of her work around issues relating to understanding discrimination, including her paper “Measuring Algorithmic Fairness,” which analyzes such tools’ disparate impact on race.
Professor Alex Johnson explores in his paper “What the Tea Party Movement Means for Contemporary Race Relations: A Historical and Contextual Analysis” how history demonstrates that whenever there is progress in race relations, there are people who perceive this as a catastrophic turn of events.
In his paper “An Implicit Bias Primer,” Professor Gregory Mitchell analyzes questions about implicit bias and whether it can be changed. Implicit bias refers to the attitudes or stereotypes that affect people’s understanding, actions and decisions in an unconscious manner.
Professor Thomas Nachbar, looking at how bias can be baked into algorithms by the people who design them, suggests applying discrimination law as a solution to improve fairness in “Algorithmic Fairness, Algorithmic Discrimination.”
A new book edited by Professor Kimberly J. Robinson, “A Federal Right to Education: Fundamental Questions for Our Democracy,” explores arguments for — and some against — a federal right to education, potential pathways to federal recognition and what such a right might entail.
In her award-winning book “Vagrant Nation: Police Power, Constitutional Change and the Making of the 1960s,” Dean Risa Goluboff explores how and why vagrancy laws, which often targeted the poor and underrepresented groups, rapidly collapsed in the span of two decades after hundreds of years on the books.
A Civil War-era experiment in providing white plantation owners’ land to formerly enslaved people mostly unraveled due to the work of southern lawyers, Professor Cynthia Nicoletti, a legal historian, explains in an episode of “Common Law.”
After Brown v. Board of Education, principles of racial equality became central to legal theory after a century of seemingly inexplicable neglect, Professor George Rutherglen argues in his paper “Reconstruction in Legal Theory.”
Professor G. Edward White’s latest and final volume in his “Law in American History” series covers an evolution in thinking in civil rights and civil liberties at the U.S. Supreme Court, inspired in part by World War II and its aftermath.
Students recently presented their findings on, and policy recommendations to address, racial disparities in the areas of housing, education, voting, criminal justice and health to the Virginia Gov. Ralph Northam’s Commission to Examine Racial Inequity in Virginia Law. The students, who are research assistants working under Professor Andrew Block, who is the commission’s vice chair, have also helped the commission develop a set of police reform proposals to recommend to Northam.
Professor Andrew Hayashi says in a new paper that preventing hate crimes will require doing more to address the animus behind the acts — and using economics in a way that currently isn’t being applied. Hayashi wrote “The Law and Economics of Animus” in part, he said, because prejudiced people continue to lash out, and the current methods of addressing the problem aren’t working.
In his paper “What is ‘Government’ ‘Speech’? The Case of Confederate Monuments,” Professor Richard Schragger argues that government symbolic activities that have constitutionally detrimental effects or that convey a constitutionally inappropriate message should be subject to constitutional limits.
The Environmental Law and Community Engagement Clinic has joined an effort to protect a historic African American schoolhouse and surrounding property, which community members say are threatened by a proposed landfill.
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