Current LSR Issue

Critical Race Theory (CRT) can be understood as an attempt to examine how race and racism are central rather than peripheral to law and legal thinking. Rather than viewing the long and ongoing story of race in American law as a series of unfortunate aberrations to an otherwise fair and impartial legal system, CRT sees racial subordination and the marginalization of other disempowered groups as foundational to how law and democracy are organized and function in society. With this intervention comes other commitments such as rejecting law’s presumed neutrality; a dissatisfaction with traditional Civil Rights approaches to racial equality; understanding how identity traits such as race and sex intersect and constitute one another; and taking the inherently political nature of legal scholarship seriously (Crenshaw et al. 1995). This framework has been both widely celebrated and consistently attacked since its emergence in the 1980s by people both inside and outside the academy (Rosen 1996). In many ways, CRT is the proverbial millennial that seems forever young but, in reality, is now middle aged.

Quantifying the causal effects of race is one of the more controversial and consequential endeavors to have emerged from the causal revolution in the social sciences. The predominant view within the causal inference literature defines the effect of race as the effect of race perception and commonly equates this effect with “disparate treatment” racial discrimination. If these concepts are indeed equivalent, the stakes of these studies are incredibly high as they stand to establish or discredit claims of discrimination in courts, policymaking circles and public opinion. This paper interrogates the assumptions upon which this enterprise has been built. We ask: what is a perception of race, a perception of, exactly? Drawing on a rich tradition of work in critical race theory and social psychology on racial cognition, we argue that perception of race and perception of other decision-relevant features of an action situation are often co-constituted; hence, efforts to distinguish and separate these effects from each other are theoretically misguided. We conclude that empirical studies of discrimination must turn to defining what constitutes just treatment in light of the social differences that define race.

How do sociolegal scholars who liken monetary sanctions to “bleeding a turnip” or “drawing blood from stones” reconcile these idioms with the fact that fines and fees constitute a growth industry? We take up this puzzle by turning our attention to perhaps the most relatable experience with monetary sanctions among the population: parking tickets. Much of the available law and society literature on fines and fees documents how these sanctions disproportionately impact communities subjugated by race and class. Because parking tickets are adjudicated within a legal domain so fundamentally different from fines and fees that dominate the academic focus, we ask whether these insights extend outside criminal counts to municipal ones. Using Chicago as a case study, our inquiry measures the structural determinants of 11.3 million tickets issued between 2013 and 2017. We use a series of count models to predict the incidence rates of tickets at the tract level as well as how many were subject to reprimands for nonpayment. What we find are disparate patterns of racialization in terms of who is targeted by these sanctions versus who is devastated by them. We synthesize key ideas from empirical critical race theory and developing work on predation theory to make sense of these findings.

Using 60 interviews with a range of minority law students and early career legal professionals (primarily differentiated by race, gender identity, religion, and disability), this Article illuminates the cruciality of empirical Critical Race Theory to understand individual deviance within the legal profession and develops a framework – blasé – for considering interactional violence that is not legally or socially cognizable as discrimination but still causes harm. These data reveal that discrimination was minimized and denied to varying degrees for all minority respondents. However, for genderqueer respondents whose identities had not achieved a high degree of sociolegal legibility, these denials had low contestability and were often without contrition. Unlike microaggressions which might have resonance in common cultural parlance as operationalizations of structural violence, what distinguishes blasé discrimination, I argue, is the ordinariness of the act in interactional parlance alongside its relative unlikeliness to be seen as problematic when confronted. It is this possibility of defense and justification in the face of being challenged that makes blasé and its ambiguous parameters worthy of our attention in identity jurisprudence. This exploration of the blasé response to discrimination sheds light on the opportunities available for revealing structural inequalities when analysis begins from the perspectives of peripheral actors.

Despite large-scale racial inequalities across multiple social domains, racial innocence highlights the complacency of the law and social science research in denying racial power through race neutral assumptions. We explore three theoretical and methodological mechanisms maintaining racial innocence within quantitative social science: treating unequal structural conditions and organizational practices as impartial, isolating samples to reflect limited stages, and focusing on individual levels of analysis. Given that mass incarceration is one of the most visible modern-day exemplars of racial subordination in the United States, we use the example of incarceration sentencing to highlight these mechanisms. Using case processing data from Miami-Dade County between 2012 and 2015 (N = 86,340), we first examine racial inequality in incarceration sentencing when treating unequal case characteristics impartially across racial groups relative to when we allow case characteristics to be unequal across racial groups. Second, we examine racial inequality when isolating limited samples with narrow decision points relative to when we draw from samples across multiple stages. Finally, we examine racial inequality with individual-level frameworks relative to a neighborhood level frameworks. In this case, racial inequalities in incarceration sentencing with a racially consciousness approach are twice as large than with a racially innocent one.

A central goal of Critical Race Theory (CRT) is to deconstruct the “jurisprudence of color-blindness” that is infused with the language of equality while operating to maintain racial hierarchies. Color-blind ideology extends to the procedures governing criminal juries, ensuring they are disproportionately white while constraining diversity of perspectives, especially regarding policing issues. In this paper, we merge CRT insights about color-blindness and race-consciousness in the criminal jury context and in the Fourth Amendment law governing policing, to advance empirical socio-legal scholarship on race and jury decision-making. We analyze deliberations data from mock jury groups that decided on verdict in a federal drug conspiracy trial, focusing on how groups talked about law enforcement testimony. We find that negative discussions of the law enforcement testimony is associated with shifts toward acquittal, there are more skeptical discussions about this testimony when the defendant is Black, and that the presence of at least one Black juror in any given group is associated with more skeptical discussions of law enforcement testimony. Our qualitative analysis illustrates how Black jurors, in particular, raised concerns about policing, including unjust treatment of Black citizens, then successfully tied those concerns to the specific legal considerations at issue in the case.

Sobre la base de información recolectada en tribunales de primera instancia y en una unidad del Ministerio Público en Santiago, Chile, en este artículo se explora la manera en que el sistema de justicia penal trata los delitos considerados “flagrantes.” Citando literatura sobre tecnicismos jurídicos, describo cómo los delitos flagrantes se construyen a través de prácticas que hacen posible para los actores involucrados evitar referirse directamente a los supuestos hechos. Desde su identificación en las calles por parte de policías a su asignación a otra unidad del Ministerio Público, los delitos flagrantes se definen por una manera específica de aproximarse a los supuestos hechos, la que consiste en prácticas organizacionales y documentales específicas. Estas prácticas contrastan con el rol marginal de la detención “en flagrancia” según el Código Procesal Penal. Como un tecnicismo, el carácter flagrante del delito expresa ciertas suposiciones epistemológicas respecto a cómo determinar lo que pasó y lo que exactamente lo constituye. Más específicamente, el carácter flagrante expresa suposiciones sobre lo que, por el momento, no puede ser sabido y puede, por tanto, ser ignorado a través del proceso burocrático y judicial.