Robin Bradley Kar, University of Illinois College of Law, and John Lindo, University of Chicago Department of Human Genetics, are publishing Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law in the Oxford of Handbook on Law and Technology (forthcoming). Here is the abstract.
This is the “Age of Genomics”, and yet people who study race and the law often resist integrating biological insights into their understanding of human psychology and behavior. The historical reasons for this resistance are understandable, but the biological sciences have been undergoing a recent renaissance, which creates a contemporary problem of translation. This article explains why the appropriate response of the law to recent developments in the evolutionary and biological sciences is to recognize that there is more, rather than less, cause for concern with respect to how racial concepts typically function in the law. The short reason is twofold. First, belief in race is prone to function in ways that are far more prejudicial than probative of most issues relevant to criminal or civil liability. Second, racial concepts function automatically and unconsciously, often without racial animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is the central legal mechanism for guaranteeing the equal treatment of persons under the law, is poorly suited to guarantee equal treatment. In fact, properly understood, evolutionary and biological paradigms offer support for many of the central empirical claims that critical race theorists have been making about race, law and society for some time now. Among those that Devon Carbado and Daria Roithmayr identify as “key modernist claims of the theory about which there is general consensus among practitioners in the United States” are the following: (1) “Racial inequality is hardwired into the fabric of our social and economic landscape”; (2) “Race is [nevertheless] a social construction whose meanings and effects are contingent and change over time”; (3) “Racial stereotypes are ubiquitous in society and limit the opportunities of people of color”; (4) “Because racism exists at both the subconscious and conscious levels, the elimination of intentional racism would not eliminate racial inequality”; (5) “The concept of color blindness in law and social policy and the argument for ostensibly race-neutral practices often serve to undermine the interests of people of color” (Carbado & Roithmayr 2014). Although critical race theorists have typically rejected evolutionary and biological paradigms, an increasing number have begun to argue for more direct engagement with the social sciences (Carbado & Roithmayr 2014). This chapter, written for the section on biology for the Oxford Handbook on Law and Technology, suggests that there may be room for cross-fertilization with the evolutionary and biological sciences as well. The chapter ends by identifying four legal and policy implications. First, remedial forms of affirmative action should be used to cure not only for past practices of intentional discrimination but also for continuing effects of current unconscious discrimination. The shelf life of affirmative action is not likely to expire anytime soon, and its remedial use should be broadened. Second, the Supreme Court should reinterpret the Equal Protection Clause of the United States Constitution so that it protects against not only intentional discrimination but also any disparate impact caused by racial beliefs that regularly function to produce inequality, as described in this chapter. Third, more policy focus should be placed on integration—a goal that has largely been abandoned since the last concerted efforts to enforce Brown v. Board of Education in the 1980s (Anderson 2011). Fourth, state actions and police policies that impact minorities should be based on deliberations that involve more diverse constituents. Mechanisms to produce racially diverse juries should be developed in some criminal and antidiscrimination cases.Download the chapter from SSRN at the link.