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Full-Text Articles in Law

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller Jan 2018

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to ...


Race And Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller Jan 2018

Race And Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller

Faculty Scholarship

Among consumers who file for bankruptcy, African Americans file Chapter 13 petitions at substantially higher rates than other racial groups. Some have hypothesized that the difference is attributable to discrimination by attorneys. We show that the difference may be attributable, in substantial part, to a selection effect: Among distressed consumers, African Americans have longer commutes to work, rely more heavily on cars for the commute, and therefore have greater demand for a bankruptcy process (Chapter 13) that allows them to retain their cars. We begin by showing that African Americans tend to have longer commuting times than other consumers and ...


Race And The New Policing, Jeffrey Fagan Jan 2017

Race And The New Policing, Jeffrey Fagan

Faculty Scholarship

Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the ...


New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash Jan 2017

New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash

Faculty Scholarship

Modern policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes as the core of its institutional design. Recent policing research has shown how this policing regime has been woven into the social, political and legal systems in urban areas, but there has been little attention to these policing regimes in smaller areas. In these places, where relationships between citizens, courts and police are more intimate and granular, and local boundaries are closely spaced with considerable flow of persons through spaces, the “new policing” has reached deeply into the everyday lives of predominantly ...


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina Jan 2016

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social ...


Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina Jan 2016

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local ...


Group Threat, Police Officer Diversity And The Deadly Use Of Police Force, Joscha Legewie, Jeffrey Fagan Jan 2016

Group Threat, Police Officer Diversity And The Deadly Use Of Police Force, Joscha Legewie, Jeffrey Fagan

Faculty Scholarship

Officer-involved killings and racial bias in policing are controversial political issues. Prior research indicates that (perceived) group threat related to political mobilization, economic competition, and the threat of black crime are is an important explanations for variations in police killings across cities in the United States. We argue that a diverse police force that proportionally represents the population it serves mitigates group threat and thereby reduces the number of officer-involved killings. Count models support our argument. They show that group threat is largely driven by the threat of black crime. Black-on-white homicides increase officer-involved killings of African Americans but black-on-black ...


Consumer Bankruptcy Pathologies, Edward R. Morrison, Antoine Uettwiller Jan 2016

Consumer Bankruptcy Pathologies, Edward R. Morrison, Antoine Uettwiller

Faculty Scholarship

This paper questions several longstanding descriptions of consumer bankruptcy in the United States. We focus on Chapter 13, which discharges debts after consumers pay disposable income to creditors for up to five years. Many studies document pathologies, including high failure rates, racial disparities, low creditor recoveries, and attorney biases. We observe the same patterns in new data drawn from Cook County, Illinois, but show that these pathologies are central tendencies that ignore substantial heterogeneity across consumers. Several are driven by subsets of consumers; some disappear once we account for account for consumer heterogeneity. We present new evidence that some pathologies ...


Stops And Stares: Street Stops, Surveillance And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina Jan 2015

Stops And Stares: Street Stops, Surveillance And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local ...


Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt Jan 2015

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply the wrong ...


Leveraging Antidiscrimination, Olatunde C.A. Johnson Jan 2014

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2013

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2012

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of "equality directives," whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private ...


Privileges Or Immunities, Philip A. Hamburger Jan 2011

Privileges Or Immunities, Philip A. Hamburger

Faculty Scholarship

What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute ...


The Anticanon, Jamal Greene Jan 2011

The Anticanon, Jamal Greene

Faculty Scholarship

Argument from the "anticanon," the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This ...


The Anticanon, Jamal Greene Jan 2011

The Anticanon, Jamal Greene

Faculty Scholarship

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This ...


Risk As A Proxy For Race, Bernard E. Harcourt Jan 2010

Risk As A Proxy For Race, Bernard E. Harcourt

Faculty Scholarship

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process. Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race. This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate ...


Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens Jan 2010

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens

Faculty Scholarship

This Essay includes a first-person narrative of having a child through surrogacy, responses to that narrative by other law professors and the surrogate, and a concluding response and epilogue by the Author.


Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt Jan 2009

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are ...


A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt Jan 2007

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details ...


Disparity Rules, Olatunde C.A. Johnson Jan 2007

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial ...


Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt Jan 2005

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate citizens ...


Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt Jan 2004

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.


Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt Jan 2003

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt

Faculty Scholarship

New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate – or "hit rate" – associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching ...