Digital Commons Network^™

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

Algorithms And Speech, Stuart M. Benjamin

Faculty Scholarship

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt …

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

The Unhappy History Of Civil Rights Legislation, Fifty Years Later, Jack M. Beermann

Faculty Scholarship

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of …