Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law
The Oxford Handbook on Law, Regulation, and Technology, p. 874 (eds. Roger Brownsword, Eloise Scotford and Karen Yeung, 2017)
46 Pages Posted: 14 Jul 2015 Last revised: 24 Nov 2017
Date Written: July 12, 2015
This is the “Age of Genomics”, and yet people who study race and the law often resist integrating biological insights into their understanding of human psychology and behavior. The historical reasons for this resistance are understandable, but the biological sciences have been going through a recent renaissance, which creates a contemporary problem of translation. This chapter explains why the appropriate response of the law to recent developments in the evolutionary and biological sciences is to recognize that there is more, rather than less, cause for concern with respect to how racial concepts typically function in the law. The short reason is twofold. First, belief in race is prone to function in ways that are far more prejudicial than probative of most issues relevant to criminal or civil liability. Second, racial concepts function automatically and unconsciously, often without racial animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is the central mechanism for guaranteeing the equal treatment of persons under the law, is poorly suited to make that guarantee.
Keywords: race, genetics, genomics, wade, racism, folk biology, evolutionary psychology, equal protection, affirmative action, evolution, unconscious racism, implicit bias, inequality, in-group, out-group, biology, population genetics, y-haplogroup
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