This seminar will examine how the law historically and contemporaneously constructs race in America, focusing in particular on the way race has been used (and abused) in the criminal justice system in supposedly scientific methods for measuring risk. We will begin the seminar by examining the explicit constructions of race, including naturalization cases from the 19th and 20th centuries, as well as more notable cases, such as Dred Scott and Plessy, involving restrictions on the rights of enslaved and formerly enslaved Black Americans. We will then turn our attention to constructions of race in the wake of Brown v. Board of Education, particularly the rise of 'colorblind' interpretations of the Equal Protection Clause, which limit legal interventions and remedies to incidents of intentional racist acts, rather than facilitating remedies to address systemic manifestations of racial hierarchy.
In the second half of the seminar, we will turn our attention to the criminal justice system and how the colorblind doctrine has facilitated the use of crime as a proxy for race. Specifically, we will examine how risk assessments--predictions of a defendant's future dangerousness or risk to public safety--can participate in and obfuscate continued constructions of race under the law, and efforts at the local, state, and national levels to ensure these predictions do not replicate the biases we have come to associate with our system of criminal justice.
Students will learn how the courts have traditionally been called upon to define race, how these constructions persist into the present, and how interpretations of the Constitution as ‘colorblind’ can obfuscate courts' continued role and involvement in these constructions. By turning our attention to the criminal justice system, students will be able to assess the nexus between the colorblind rhetoric of the courts and mass incarceration. Students will leave the seminar with substantive knowledge of: the federal Bail Reform Acts of 1966 and 1984, the responsibility of judges to “predict” whether people charged with crimes are a risk to public safety, and increasing concerns from the public regarding the role such predictions play in continued constructions of race.
Beyond the knowledge gained from exploration of the aforementioned laws and cases, students’ should depart the seminar with a healthy skepticism of the law as inherently neutral or unbiased. Further, through robust class discussion and satisfaction of the writing requirement, students will sharpen their analytical skills, as well as their ability to clearly and concisely articulate themselves in verbal and written formats.