Northwestern University Law Review Symposium

"A Fear of Too Much Justice"?

Equal Protection and the Social Sciences 30 Years After McCleskey v. Kemp

Friday, October 20, 2017

Thorne Auditorium

Northwestern Pritzker School of Law

RSVPs not required, but please let us know if you plan to attend here.

Is statistical evidence of a racial disparity enough to demonstrate an Equal Protection violation? Thirty years ago, the U.S. Supreme Court took on this question in McCleskey v. Kemp. Warren McCleskey, a Black man, was convicted of murdering a White police officer and sentenced to death. On appeal, McCleskey offered statistical evidence showing that Georgia applied the death penalty in a racially biased manner that violated the Equal Protection Clause. The Supreme Court was not persuaded. In extending previous decisions in this area, the Court closed the door on the ability of the social sciences to meaningfully contribute to Equal Protection deliberations. Writing in dissent, Justice William J. Brennan Jr. characterized the majority’s reluctance to consider evidence of discrimination as “a fear of too much justice.”

Thirty years after McCleskey, social scientists continue to demonstrate racial disparities in criminal justice and many other areas of social life with remarkable acuity. Yet, despite new tools, methods, and insights, there is little jurisprudential space for this data to inform the Court’s decisionmaking. This symposium will re-examine the relationship between race, social science evidence, and the Equal Protection Clause. With contributions from leading scholars of the connection between Equal Protection doctrine, empirical methods and Critical Race Theory (eCRT), including Reva Siegel, Paul Butler, and Michele Goodwin, and a keynote address from Jack Boger, who argued McCleskey in front of the Supreme Court, we strive to understand how cutting edge interdisciplinary work might lead to novel responses and interventions to doctrinal impasses, such as those exhibited in McCleskey.

Symposium Program

Breakfast (8:30am)

Welcome (9:00am)

Opening Address: Reva Siegel (Yale) (9:15am)

McCleskey's Lasting Impact on Equal Protection Doctrine (9:45am–11:00am)

Moderator: Destiny Peery (Northwestern)

  • Mario Barnes (UC-Irvine) - What Can Brown Do for You?: Addressing McCleskey v. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias (Co-author: Erwin Chemerinsky)
  • Osagie Obasogie (Berkeley) and Zach Newman (Berkeley) - The Futile 4th Amendment: From Individual to Structural Understandings of Police Violence

Break (11:00am–11:15am)

Equal Protection and the Social Sciences in Criminal Justice (11:15am–12:30pm)

Moderator: Deborah Tuerkheimer (Northwestern)

  • Paul Butler (Georgetown) - Equal Protection and White Supremacy
  • Angela Onwuachi-Willig (Berkeley) - No Second Chance for Equal Protection for the Formerly Incarcerated (Co-author: Ifeoma Ajunwa)
  • Aya Gruber (Colorado/Harvard) - Equal Protection Under the Carceral State

Lunch (12:30pm-1:30pm)

Equal Protection and the Social Sciences Beyond Criminal Justice (1:30pm–3:00pm)

Moderator: Laura Beth Nielsen (Northwestern/ABF)

  • Bernadette Atuahene (Kent) - Racial Discrimination Unveiled: Property Tax Assessments and the Fair Housing Act
  • Russell K. Robinson (Berkeley) - What Racial Justice Advocates Can Learn from the Marriage Equality Movement's Use of Social Science (Co-author: David M. Frost)
  • Kyneshawau Hurd (Berkeley) and Victoria Plaut (Berkeley) - Does "Diversity Benefits" Ideology Undermine Inclusion?
  • Michele Goodwin (UC-Irvine) - Challenging The Rhetorical Trap: Women’s Capacities and Reproductive Rights

Break (3:00pm–3:15pm)

Leveraging Social Science Evidence in the Courts Today (3:15pm–4:30pm)

Moderator: Destiny Peery (Northwestern)

  • Honorable Edmond E. Chang, U.S. District Court for the Northern District of Illinois
  • Honorable Sara L. Ellis, U.S. District Court for the Northern District of Illinois
  • Honorable Virginia M. Kendall, U.S. District Court for the Northern District of Illinois

Keynote Address: Jack Boger (UNC) (4:30pm–5:00pm)

Attorney who represented Warren McCleskey before the U.S. Supreme Court

Reception (5:00pm–7:00pm)



  • Veena Dubal, Associate Professor of Law, University of California, Hastings 
  • Elizabeth Mertz, John and Rylla Bosshard Professor of Law, University of Wisconsin School of Law and Research Professor, American Bar Foundation
  • Laura Beth Nielsen, Professor and Director of Legal Studies, Northwestern University, Department of Sociology and Research Professor, American Bar Foundation
  • Osagie K. Obasogie, Haas Distinguish Chair, Professor of Bioethics, University of California, Berkeley
  • Angela Onwuachi-Willig, Chancellor’s Professor of Law, University of California, Berkeley School of Law. 
  • Destiny Peery, Assistant Professor of Law, Northwestern University Pritzker School of Law