Acclaimed New Carbado Books Focus on Race and the Law

June 2, 2022
Devon Carbado
Devon Carbado

In two new books published this spring, Devon Carbado, the Honorable Harry Pregerson Professor of Law at UCLA School of Law and the former Associate Vice Chancellor of BruinX for Equity, Diversity and Inclusion, continues to share his research and insights on race, justice, and the American legal system.

Out from the New Press in early April was Carbado’s book Unreasonable: Black Lives, Police Power, and the Fourth Amendment; later in the same month Cambridge University Press published Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, an anthology edited by Carbado (along with Bennett Capers, Professor of Law and the Director of the Center on Race, Law, and Justice at Fordham Law School; R. A. Lenhardt, Professor of Law at Georgetown Law and co-founder of Georgetown’s Racial Justice Institute; and Angela Onwuachi-Willig, Dean and Ryan Roth Gallo & Ernest J. Gallo Professor at Boston University School of Law).

Unreasonable, published on the second anniversary of global protests over the police killings of George Floyd and Breonna Taylor, is a groundbreaking investigation of the role that the law and the U.S. Constitution play in the epidemic of police violence against Black people. In the book, Carbado argues that “the Supreme Court’s interpretation of the Fourth Amendment over the past five decades has allocated enormous power to police officers—the power to surveil, the power to racially profile, the power to stop-and-frisk, and the power to kill.”

The Fourth Amendment has become ground zero for regulating police conduct—more important than Miranda warnings, the right to counsel, equal protection and due process. Fourth Amendment law determines when and how the police can make arrests, and it determines the precarious line between stopping Black people and killing Black people.

“I started thinking about this book for three principal reasons,” recalls Carbado. “One was to push back against a dominant frame of thinking about race and policing—that there are good cops and bad cops. That obscures the structural dimensions of race and policing.

“The second impetus for the book was to explore the idea that the troubling problems of policing are not necessarily unconstitutional. The book tries to lay out the different ways in which the law authorizes various forms of police conduct. And finally, I wanted to talk specifically about the Fourth Amendment, which is implicated in just about every form of policing that is an issue today, things like deadly force, stop-and-frisk, qualified immunity warrants, and no-knock warrants. I hope we can begin to see the problem more structurally, to understand it is a law problem and not simply a bad cop problem. Then we can think more broadly about what we might do about these important challenges.”

One of Carbado’s UCLA Law colleagues, Kimberlé Crenshaw, Distinguished Professor of Law and Promise Institute Chair in Human Rights, says that the book “cuts to the heart of the problem of over-policing and police violence in communities of color: the law itself. Unreasonable sets the stage for the most important new front in the battle for Black lives.” Indeed, as Carbado has said, “Law is a way to make Black lives matter.”

The book has been well-received in the mainstream press and the academy. Publishers Weekly writes, “Enriched by Carbado’s accessible analysis of court rulings and judicious selection of case studies, this is a powerful indictment of the criminal justice system.” Here at UCLA, Robin D.G. Kelley, Distinguished Professor and Gary B. Nash Endowed Chair in U.S. History, calls the book “a breathtaking, compelling journey through constitutional law intended to not only enlighten but to literally save lives.”

Legal scholars are also praising the book. “Unreasonable is a searing indictment of race and policing in the United States,” says Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. Carbado was a guest of Dean Chemerinsky for a discussion of the book sponsored by the Center of Brooklyn History.

Carbado was one of four editors for his second book this year, Critical Race Judgments, which uses a novel conceit for the exploration of justice: reimagining Supreme Court decisions through the lens of critical race theory.

“We thought it was important to write a book like this because of distortions that existed about critical race theory,” says Carbado. “People are raising hard questions about the extent to which CRT could be legible as legal doctrine. One of the goals of this book is to push back, quite aggressively, on that particular point.”

Contributors to the volume include a wide range of scholars writing about several key Court decisions, including Brown v. Board of Education, Plessy v. Ferguson, Terry v. Ohio, Dred Scott v. Sandford, Loving v. Virginia, Roe v. Wade, and many others. Professor Crenshaw contributed a chapter to Critical Race Judgments, rewriting the case Washington v. Davis.

“We wanted to include cases that were both explicitly about race (such as Loving vs. Virginia) and those that were not (such as Lawrence v. Texas),” he notes. “We also wanted to include cases that were racial injustice turning points, as well as those that transcended the experiences of any one racial group. Finally, in assembling the book, we tried to include cases that covered the range of contexts in which race and law intersect, including issues like voting rights, education, the criminal legal system, reproductive autonomy, indigenous sovereignty, and family law.”

In addition to editing the volume, Carbado, with Jonathan Feingold, Associate Professor at Boston University School of Law, contributed a rewrite of the Whren v. United States decision. “I decided to write Whren, he says, “because it is a central case in the canon of Constitutional Criminal Procedure, illustrates one of the ways in which the Supreme Court’s interpretation of Fourth Amendment law sanctions racial profiling, and because it is a majority opinion. The fact that the opinion is unanimous might lead one to conclude that the Court’s hands were tied. But our rewritten Whren opinion concludes otherwise, and it advances a traditional legal argument, grounded in the text of the Fourth Amendment, to do so.”

“Critical Race Judgments could not come at more important moment,” says Sherrilyn Ifill, former president and director-counsel of the NAACP Legal Defense Fund. She notes that the book is “both devastating and inspiring – clearly exposing the ruinous jurisprudential path that has led us away from fulfilling the promise of the Civil War Amendments and offering a potential path towards a jurisprudence that could still save our fragile republic.”

Carbado and the editors of the book took part in a symposium about the project at Boston University School of Law, which can be seen on YouTube.

Publishing even one book is a major achievement, but to publish two in one month, much less the same year, is something extraordinary—and time-consuming. So, what does Carbado have planned now that these two works are finished and in the hands of the public? “I am working on two other books with colleagues,” he says. “One focuses on race and international law and the other examines how race is implicated across the law school curriculum.”

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