Law Commons^™

A Perfectly Empty Gift, Christina D. Ponsa-Kraus

Michigan Law Review

A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Michigan Law Review

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:

Books Have The Power To Shape Public Policy, Barbara Mcquade

Michigan Law Review

In our digital information age, news and ideas come at us constantly and from every direction—newspapers, cable television, podcasts, online media, and more. It can be difficult to keep up with the fleeting and ephemeral news of the day.

Books, on the other hand, provide a source of enduring ideas. Books contain the researched hypotheses, the well-developed theories, and the fully formed arguments that outlast the news and analysis of the moment, preserved for the ages on the written page, to be discussed, admired, criticized, or supplanted by generations to come.

And books about the law, like the ones reviewed …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman

Michigan Law Review First Impressions

After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions, it …

Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault

Michigan Law Review First Impressions

In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate opinions, while LULAC took …

Self-Defeating Minimalism, Adam B. Cox

Michigan Law Review First Impressions

Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry, many …

Cultural Compactness, Daniel R. Oritz

Michigan Law Review First Impressions

The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC …

Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff

Michigan Law Review First Impressions

League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered …

Strict In Theory, Loopy In Fact, Nathaniel Persily

Michigan Law Review First Impressions

Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal Protection Clause, …

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

Articles

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker

Michigan Journal of Race and Law

This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been …

Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn

Michigan Journal of Race and Law

This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Michigan Journal of Race and Law

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. …

Resurrecting The White Primary, Ellen D. Katz

Articles

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett

Michigan Journal of Race and Law

As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

The Fallacy Of Neutrality: Diary Of An Election Observer, Jeanne M. Woods

Michigan Journal of International Law

Neutrality is one of many conceptual fictions of liberal discourse. A legal fiction is "contrived by the law" to facilitate adjudication of issues. Such fictions may serve as symbols, to make abstract concepts tangible or, they may be myths designed to promote some normative principle or goal. The problem arises when these fictions cease to be recognized as inventions, or as "presumptions about reality," and are believed to have an independent existence in reality. Then, they "purport to provide us with an objective and impersonal criterion, but they do not." According to the philosopher Alasdair MacIntyre, a fiction is "a …

Vote Dilution And The Census Undercount: A State-By-State Remedy, Christopher M. Taylor

Michigan Law Review

This Note argues that groups seeking to correct underrepresentation caused by the differential undercount do not have standing to sue the Secretary of Commerce but that they can sue their state governments in an effort to force them to use the best population data available in the construction of congressional districts. Part I details the deeply rooted character of the differential undercount, describes statistical means that could have been employed to adjust the 1990 census, and demonstrates that the adjusted count surpasses the official census as an accurate representation of the true population. Part II examines recent litigation that has …

Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald

Michigan Journal of Race and Law

Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part V …

Identifying The Harm In Racial Gerrymandering Claims, Samuel Issacharoff, Thomas C. Goldstein

Michigan Journal of Race and Law

This Article proceeds along two lines. First, it reviews the theories of harm set forth in the Justices' various opinions, i.e., the articulated risks to individual rights that may or may not be presented by racial gerrymandering. What is learned from this survey is that Shaw and its progeny serve different purposes for different members of the Court. Four members of the Shaw, Miller v. Johnson, and United States v. Hays majorities-Chief Justice Rehnquist, along with Justices Scalia, Kennedy, and Thomas- are far more concerned with "race" than "gerrymandering." In particular, they consider all race-based government classifications to be inherently …

The Empitness Of Majority Rule, Luis Fuentes-Rohwer

Michigan Journal of Race and Law

In this Note, the author steers away from the current substantive debates surrounding the Voting Rights Act, its various amendments, and the "correct" way of interpreting its intended benefits and constitutionally accepted mandates. Instead, indirectly joins the many "radical" voices advocating for a departure from the majoritarian stranglehold-the decision-making process where fifty percent plus one of the voting population carry the election. The author does so not by suggesting yet another mechanism by which representatives may be elected, but by critiquing the perceived underpinnings of our democratic system of government. The author does not profess to delineate a definitive interpretation …

Bakke & The Politics Of Equality, Paul V. Timmins

Michigan Law Review

A Review of Bakke & the Politics of Equality by Timothy J. O'Neill

Community Control, Public Policy, And The Limits Of Law, David L. Kirp

Michigan Law Review

This Article deals with those two points of conflict-disputes about governance, race, and political power; and constitutional concerns, rooted in Brown v. Board of Education, about racially heterogeneous education. Both are central to understanding, and to giving content to, the disagreements about community control. The questions about power provide a context within which to understand the terms of the debate. The constitutional discussion suggests some inevitable judicial difficulties in resolving disputes that emerge from the debate. Such questions are increasingly before the courts, whose decisions may alter the bounds of acceptable conduct in ways that permit or deny the …