Leading scholars address the ways in which racism pervades the modern administrative state and legal profession.
This summer, Minneapolis police officers killed a resident named George Floyd. George Floyd was not the only Black person killed by police this year—police have killed 874 people in 2020 so far, with nearly 30 percent of those victims being Black people. Following Floyd’s death and the death of too many others, organizers and communities around the United States and the world demonstrated in opposition to police violence against Black and Brown people. These demonstrations were “sustained and widespread,” with millions of people attending. News outlets described these events as “a racial reckoning that shows no signs of slowing down.”
This reckoning carries over to the administrative state, where lawyers and scholars have paused to reflect on the ways in which race and racism shape all aspects of life in the United States
In an effort to continue conversations about racial justice and inequality, The Regulatory Review developed this series to examine institutionalized and systemic racism within the modern administrative state. We hope this series creates a forum in which scholars can call attention to the racism that remains embedded within the legal profession and realms of regulatory practice, generating potentially far-ranging implications for daily life.
We are excited and proud to feature the following contributors in this series: Mehrsa Baradaran, University of California, Irvine School of Law; Asli Bashir, University of Pennsylvania Law School; Sterling Bone, Utah State University; Ming Hsu Chen, University of Colorado Law School; Glenn Christensen, Brigham Young University; Leslie Culver, University of Utah College of Law; Meera Deo, Thomas Jefferson School of Law; Deseriee Kennedy, Touro Law Center; C. Dylan Durham, University of California, Irvine School of Law; Olatunde C.A. Johnson, Columbia Law School; Anneliese Lederer, National Community Reinvestment Coalition; Kali Murray, Marquette University Law School; Brian N. Williams, University of Virginia; Carmen Williams, University of Virginia School of Law; and Jerome Williams, Rutgers University–Newark.
This series builds on The Regulatory Review’s longstanding commitment to examining the most vital issues of regulatory law and policy and making issues related to regulation and administrative law more accessible to all. We encourage additional contributions examining racism and discrimination in regulation and administrative institutions of government, and we are committed to publishing scholarship that engages with and sustains national conversations about how racism manifests in administrative law and regulatory policy.
Furthermore, although this series presents an opportunity to highlight the work of scholars of color whose work focuses on examining racism and discrimination in administrative law, we hope contributors of color will feel welcome and encouraged to submit essays addressing any regulatory topic of their choice at any time. In addition, the staff of this publication are engaging in critical self-reflection on our priorities, practices, and values. We are actively seeking to be an avowedly anti-racist publication through promoting the work of scholars of color, providing a forum for analysis about racial justice and inequality, and holding ourselves accountable to those goals. We encourage our readers to join us in these efforts.
AFFH and the Challenge of Reparations in the Administrative State
October 26, 2020 | Olatunde C.A. Johnson, Columbia Law School
Part of the forgetting of the federal role in housing segregation may be distinctive to how we understand the administrative state and to how administrative bureaucracy operates, as the federal role in housing administration is obscured in deference to local prerogatives.
October 27, 2020 | Deseriee A. Kennedy, Touro Law Center
The recent reckoning over racial injustice, kindled by the hyper-criminalization of and excessive use of force against Black people, requires a closer examination of the “child welfare” system’s excessive regulation of families.
Small Businesses of Color Matter Too
October 28, 2020 | Jerome D. Williams, Rutgers University-Newark, Sterling Bone, Utah State University, Glenn Christensen, Brigham Young University, and Anneliese Lederer, National Community Reinvestment Coalition
Banks are not ensuring that all their employees treat prospective borrowers the same, regardless of their race and gender. Sensible regulation is needed to secure equal economic opportunity to all small businesses.
The Past and Present of Racism in the Administrative State
October 29, 2020 | Brian N. Williams, University of Virginia, and Carmen Williams, University of Virginia School of Law
Discriminatory policies and dystopian professional practices are part and parcel of the American legal landscape. How do we reimagine and reorient regulatory agencies when considering their injurious legacy that lies at the confluence of administrative evil and administrative racism?
Race Masked in Colorblind Administrative Procedures
November 2, 2020 | Ming Hsu Chen, University of Colorado Law School
The U.S. Supreme Court has submerged its analysis of racial animus under an arbitrary and capricious framework. In the past few years, the Court has found government justifications for exclusionary measures to be lacking—but has not acknowledged race to be the defect.
Tearing at the Mask of the Administrative State
November 3, 2020 | Kali Murray, Marquette University Law School
What Black Lives Matters disrupts is a claim that has been central to the field of administrative law: that the administrative state acts in a neutral manner, and thus, scholars’ primary concern lies in outlining structural and procedural elements of bureaucratic decision-making.
A CBO For Racial Inequality?
November 4, 2020 | Mehrsa Baradaran and C. Dylan Durham, University of California, Irvine School of Law
If the Federal Reserve were to be required to reduce the racial wealth gap, how would policymakers and the public judge its performance? To close the racial wealth gap, we must first measure how the wealth gap persists through and across federal regulatory and legislative programs.
Pennsylvania’s Misguided Sentencing Risk Assessment Reform
November 5, 2020 | Asli Bashir, University of Pennsylvania Law School
Pennsylvania recently rolled out a controversial sentencing risk assessment instrument designed to forecast a defendant’s relative risk of re-conviction for a new offense. Although the process of developing this instrument exemplifies responsive bureaucratic practice, this instrument is a lesson in well-intentioned but fundamentally misguided policy reform.
Diversity and Exclusion Within Legal Education
November 9, 2020 | Meera E. Deo, Thomas Jefferson School of Law
The Law School Survey of Student Engagement introduced a new module, Diversity & Exclusion, that reveals significant differences in student experiences with diversity and inclusion based on race, ethnicity, gender, sexual orientation, first-generation status, debt level, and more.
Broken Landscapes, Brown Beauty
November 10, 2020 | Leslie Culver, University of Utah College of Law
Journals and publications across the country appear recently to be aching for scholars of colors to fill their volumes. But have we actually been absent? Why now—amid death, violence, and riots—is my voice, our voices, so important?