Toward a Post-Atonement America: The Supreme Court's Atonement for Slavery and Jim Crow

This is the published version

Systemic Racism: Patterns of Black Disadvantage and White Advantage Linked to Slavery

In this Article, I engage systemic racism in two ways. First, I discuss some of its current manifestations, Part II. In particular, I will offer powerful examples of systemic racism, Section A, and explain the link between slavery and extant systemic racism, Section B. Next, I analyze the forces in this country that sustain systemic racism well into the post-civil rights period, Part III. I will spend a fair amount of time examining socio-psychological paradigms and institutional practices or policies that perpetuate or contribute to manifestations of systemic racism. The former consists of various forms of racial bias, Section A, and the latter focuses on a few significant legal institutions, Section B. The question of what to do about systemic racism is important. I do not, however, have enough space to address that question here

Getting Reparations for Slavery Right - Response to Posner and Vermeule

Ambiguity aversion is a person\u27s rational attitude towards the indeterminacy of the probability that attaches to his future prospects, both favorable and unfavorable. An ambiguity-averse person increases the probability of the unfavorable prospect, which is what criminal defendants typically do when they face a jury trial. The prosecution is not ambiguity averse. Being a repeat player interested in the overall rate of convictions, it can depend upon any probability, however indeterminate it may be. The criminal process therefore is systematically affected by asymmetric ambiguity aversion, which the prosecution can exploit by forcing defendants into harsh plea bargains. Professors Segal and Stein examine this issue theoretically, empirically, and doctrinally. They demonstrate that asymmetric ambiguity aversion foils criminal justice and propose a law reform that will fix this problem. Reprinted by permission of the publisher

Getting Reparations for Slavery Right - Response to Posner and Vermeule

Ambiguity aversion is a person\u27s rational attitude towards the indeterminacy of the probability that attaches to his future prospects, both favorable and unfavorable. An ambiguity-averse person increases the probability of the unfavorable prospect, which is what criminal defendants typically do when they face a jury trial. The prosecution is not ambiguity averse. Being a repeat player interested in the overall rate of convictions, it can depend upon any probability, however indeterminate it may be. The criminal process therefore is systematically affected by asymmetric ambiguity aversion, which the prosecution can exploit by forcing defendants into harsh plea bargains. Professors Segal and Stein examine this issue theoretically, empirically, and doctrinally. They demonstrate that asymmetric ambiguity aversion foils criminal justice and propose a law reform that will fix this problem. Reprinted by permission of the publisher

Symposium Introduction: Walking with Destiny

During the Enlightenment, the poet Robert Burns lamented, “Man’s inhumanity to man [m]akes countless thousands mourn.” Burns was looking back over centuries of human injustices—atrocities—as the empirical basis for his mournful reflection. But even now, long after the Enlightenment, we have not been able to curb our proclivity for committing atrocities. What we have been able to do after all these centuries, however, is enlarge the human capacity for redressing—repairing—the damage wrought by our atrocities. As atrocities do not appear to be ending, redress has become our destiny. California is attempting to walk with this destiny. Our most populous state is poised to become the first government entity in the country to offer significant redress for slavery. Through the work of a government commission, the Task Force to Study and Develop Reparation Proposals for African Americans (Task Force), California has begun a process that is calculated toward using reparations as the principal mechanism for redressing slavery—“Black Reparations.” With the excellent assistance of talented and energetic lawyers in the California Department of Justice, the Task Force has issued what is by any measure the most important study of and proposals for Black Reparations to date: a 500-page Interim Report issued in June 2022. The articles in this Symposium Issue provide scholarly, non-partisan guidance to the Department of Justice as it prepares, on behalf of the Task Force, a final report on Black Reparations which is mandated by Assembly Bill 3121 to be delivered to the State Legislature before July 1, 2023. Department of Justice lawyers have had an opportunity to consult with the student authors in a timely fashion prior to the publication of this Symposium. Collectively, the articles are responsive to two major perceived defects in the Interim Report—the absence of framings and the lack of specificity. Discursive framings are critical to our understanding of the atrocity. They also help us comprehend how, or even whether, we ought to proceed with redress. Specificity is also important to any redress initiative; it clarifies what precisely the victim is getting. These defects—the absence of framing and specificity—are not unrelated. A brief discussion of the deficiencies may be useful at this point