Law Commons^™

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

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This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

Taking Disability Public, Jasmine E. Harris

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Anti-discrimination laws enforce the idea that no one should be forced or encouraged to hide their race, gender, sexuality or other characteristics of their identity. So why is disability rights law the glaring exception? Other areas of anti-discrimination law have eschewed forms of enforced privacy about protected classes and, as a result, re-frame privacy norms as problematic, antigenic, and, at times, counter to structural reform goals. In contrast, disability rights law values privacy norms to preempt discrimination; in other words, if you never reveal the information, no one can discriminate against you because of that information. This Article argues that …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

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This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …

Deadweight Costs And Intrinsic Wrongs Of Nativism: Economics, Freedom, And Legal Suppression Of Spanish, William W. Bratton, Drucilla L. Cornell

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No abstract provided.

Discrimination, Jobs, And Politics, Anita L. Allen

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No abstract provided.

Resistance Tactics For Tokens, Regina Austin

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No abstract provided.

Social Science And Segregation Before Brown, Herbert J. Hovenkamp

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The courts must bear a heavy share of the burden of American racism. An outpouring of historical scholarship on racism and the American law reveals the outrageous and humiliating extent to which American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions. The law is not autonomous, however, particularly in areas of explicit public policy making. Lawyers did not invent racism. Rather they created racist institutions because society was racist and racism was implicit in its values. The trend in scholarship on the legal history of American racism, however, has been to place most of the blame for …