The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes by suggesting administrative, political, and judicial mechanisms that would encourage policymakers to leverage expertise and curb irrationality in immigration policymaking.
Commentators have predicted that the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago could hamper police efforts to seize guns on the street. Many police officers have understood the Fourth Amendment to permit stopping and frisking anyone who appears to possess a handgun in public. But that understanding is rooted in laws that made handgun possession a crime, the kinds of laws struck down in Heller and McDonald. The doctrinal collision that this appears to set up between the Second and Fourth Amendments will likely be less meaningful on the streets—particularly in low-income, minority neighborhoods—than commentators suggest. This is because the Fourth Amendment affords police many opportunities to dodge the collision. The aggressive forms of policing associated with gun interdiction in minority neighborhoods will likely continue, but now with added constitutional gravity. If gun rights advocates care about the fair distribution of Second Amendment rights, they should worry about the formal and practical opportunities the Fourth Amendment creates for the aggressive policing associated with firearm interdiction in poor minority communities. These advocates should make police reform and racial justice a core part of their agenda, something they have not done to date.
The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition.
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.