PUBLISHED:November 20, 2020

Yearlong series examines race in the context of subjects foundational to first-year curriculum

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“Race in the 1L Curriculum” highlights scholarship and activism that addresses racial disparities in the way these bodies of law are taught, formulated, and operate.

A yearlong series at Duke Law sponsored by the dean’s office is examining race in the context of the six foundational subjects in the first-year curriculum: torts, criminal law, civil procedure, contracts, property law, and constitutional law.

Each discussion in the “Race and the 1L Curriculum” webinar series is moderated by a faculty scholar who teaches a first-year course in the area of law under consideration. The events feature scholars and others engaged in research and legal actions that address racial disparities in the way these bodies of law are taught or formulated, or how they play out in practice.

Introducing the series on Sept. 24, Dean Kerry Abrams noted how recent events have highlighted the effects of racism on the legal system, including the refusal of a Kentucky grand jury, just the day before, to indict police officers who had killed Breonna Taylor in her home on March 13.

“This makes it all the more important that we focus as a school and as a community on what needs to change in the legal system if it is ever going to be truly just,” said Abrams, the James B. Duke and Benjamin N. Duke Dean and professor of law. “Not only does race play a role in shaping legal outcomes, but law can also work to shape our understandings of race and can either prop up or help chip away at the systems that create and maintain racism.”

While race is sometimes at the forefront of cases taught in law school, as it is in Brown v. Board of Education, elsewhere the law purports to be race-neutral in a way that hides its racial implications, she said, offering tort law’s fictional “reasonable man” standard as an example. “[It] reflects and enshrines in the law the expectations of the mostly white, male common-law judges who created the reasonable man to begin with, far more than it does the expectations of members of Black, Asian, Latinx, or Native American [communities].”

While many of these connections already come out in class readings and discussions, the goal of the series is to “open up a space where we can consider the role of race in these core legal topics together,” Abrams said.

One of the organizers of the series, Melvin G. Shimm Professor of Law Darrell Miller, agreed, noting that the demands of the first-year curriculum often don’t allow students and faculty to engage with issues of race in as much detail and context as they might like. “The premise is to give students and interested faculty time to talk and space to learn a little bit more about some of these issues in a way that doesn’t force them to sacrifice other essential things the students need to learn in the semester,” said Miller, the associate dean for intellectual life at Duke Law, who also teaches first-year Civil Procedure.

“To equip my students with the knowledge that they need to be able to take the bar and to eventually practice, perhaps in the litigation field, there’s a lot of content we need to get through,” he said. “I can explain that the Federal Rules of Civil Procedure are generated by a committee appointed by the Chief Justice of the United States. But there’s not enough time in the semester to spend an hour talking about representation on the committee, because that would mean I would have to cut something that they also really need to know, like how subject-matter jurisdiction works.”

Moderating the final webinar of the fall semester on Nov. 9, on civil procedure, Miller focused the discussion on why a lack of diversity on the Civil Rules Committee matters, as well as how some litigation strategies enabled by the rules are deployed in a way that perpetuates inequality. Seattle University School of Law Professor Brooke Coleman shared her research into the demographic composition of the Civil Rules Committee from 1934 to the present — it has been 96% white over time and is now 93% white, and has never had a woman of color as a member — and offered strategies and reasons for “putting some pressure on the Chief Justice” to increase its diversity. University of Illinois College of Law Professor Suja Thomas detailed the way such strategies as summary judgment and remittitur are employed to reduce the effectiveness of civil rights litigation as a remedy for discrimination. Noting that summary judgment is used in 70% of employment discrimination cases, she said that civil rights cases “are being dismissed every day where race is a factor.” A study of federal courts in Atlanta showed that 90% of employment discrimination cases based on race were dismissed on summary judgment.

Clinical Professor Kate Evans and Brandon Garrett, the L. Neil Williams, Jr. Professor of Law who directs the Wilson Center for Science and Justice, highlighted initiatives and actions focused on bail reform and mitigating felony disenfranchisement in North Carolina when they hosted and moderated a webinar on criminal law on Oct. 5. “We wanted to showcase the incredible efforts to reform the criminal justice system that you can join as law students and soon as lawyers,” said Evans, director of the Immigrant Rights Clinic.

Andrea “Muffin” Hudson, director of the North Carolina Community Bail Fund of Durham, addressed the disparate effects of cash bail at the grassroots level, sharing her own experience of being unable to make bail and eventually pleading guilty to a crime for which she was innocent simply in order to be released. Leah Kang, a staff attorney with the ACLU of North Carolina, reviewed a successful challenge to bail schedules in Alamance County that resulted in new requirements for magistrates to explore defendants’ ability to pay and find clear and convincing evidence of public safety or flight risk before imposing bail.

Discussing a challenge to felony disenfranchisement brought by the nonpartisan legal, policy, and strategy nonprofit Forward Justice, Daryl Atkinson, the organization’s co-director, said that certain claims that the relevant North Carolina statute violate the state constitution succeeded on summary judgement due to their “significant record of unrebutted facts” related to race and class-based discrimination. This included Sentencing Project data showing that African Americans experience disproportionate and cumulative injustice at every single point in the criminal justice system — in stops, arrests, searches, prosecutions, jury selection, and sentencing — with the result that communities are divested of substantial equal voting power, he said. “African American men [in North Carolina] represent 9% of the voting age population. They represent 36% of the people who are disenfranchised, largely muting the gains of the 15th Amendment and the 1965 Voting Rights Act.”

In the inaugural webinar, A. Kenneth Pye Professor of Law Michael Frakes led an examination of the way first-year Torts is actually taught. “Across torts casebooks and across many pieces of torts scholarship, race is virtually absent from the discussion altogether,” he said. This was confirmed by research presented by University of Maine Law Professor Jennifer Wriggins, who noted that casebooks often highlight key cases dating from the late 19th to mid-20th centuries, a period when virtually all the decision-makers were white men, but ignore that historical context and do not mention the failure of the torts system in that period to deter or compensate for lynching or many other harms to African Americans.  Casebooks fail to include cases that are useful in teaching tort doctrines, such as duty, foreseeability, and common carrier issues, but also have racial elements, she said, when doing so would provide a more accurate and nuanced picture of the field, make the class more welcoming to more students, and create space to think and talk more about equality, “which is an important value in our legal system and relevant throughout the curriculum.” As it is, the approach to teaching 1L torts often ignores aspects of the system that have been “hidden in plain sight,” including the way claims by Black Americans and other members of other racial minority groups have been and sometimes still are devalued because of race, she said.

University of Pennsylvania Law Professor Regina Austin offered guidance for taking race into account in teaching torts.  She proposed that case studies (as opposed to studying just the “four corners” of a reported decision) be undertaken to allow for a contextual analysis that could expose the relevance of race, ethnicity, gender, and class in assessing tortious behavior and in valuing damages. “We would recognize that there is a reality associated with race, gender, and class, a reality in terms of the resources that people have to protect themselves, and the resources that other people have to oppress them,” she said. Austin called for both torts scholars and courts to “step up” to formulate standards that reflect the cultures of people without the wherewithal or the capital to fight for fair treatment.

The Race in the 1L Curriculum series will focus on contracts when it resumes on Jan. 28. Miller lauded his faculty colleagues for their eagerness to help organize and take part in the series. “This is a truly collaborative exercise amongst all the faculty who see this as an important part of the university’s and the Law School’s mission,” he said.