Law Commons^™

Many Laws Of Discrimination: The Multiple Sources Of Constitutional-Statutory Convergence, Bertrall L. Ross Ii

Bertrall L Ross

No abstract provided.

Embracing Administrative Constitutionalism, Bertrall L. Ross Ii

Bertrall L Ross

No abstract provided.

Not A Mere Omission: Reconciling The Clear Statement Rule And The Voting Rights Act, Bertrall Ross

Bertrall L Ross

No abstract provided.

Measuring Political Power: Suspect Class Determinations And The Poor, Bertrall L. Ross, Su Li

Bertrall L Ross

Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens, or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible—and under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power.

But how do courts know when a class lacks political power? A liberal plurality of the Supreme Court initially suggested that political power should be measured according to a group’s …

Denying Deference: Civil Rights And Judicial Resistance To Administrative Constitutionalism, Bertrall Ross Ii

Bertrall L Ross

In this Article, I pursue an alternative path toward identifying sources of judicial deference choices, by analyzing patterns of judicial deference toward agency interpretations in an entire substantive area---civil rights. Civil rights is a promising area for analysis because it is in this area that the Court has shown some of its greatest inconsistencies in its application of deference doctrine. Focusing on an entire substantive field also offers an intermediate level of analysis, steering between the macro-level and agency-specific accounts.

Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii

Bertrall L Ross

No abstract provided.

The Representative Equality Principle: Disaggregating The Equal Protection Intent Standard, Bertrall L. Ross Ii

Bertrall L Ross

Challenges under the Equal Protection Clause require proof of intentional discrimination. Though rarely questioned by legal scholars or the courts, that conventional account cannot explain the success of equal protection challenges to electoral structures that dilute the vote of racial minorities. In the Supreme Court’s most recent decisions on vote dilution, the Court has invalidated local electoral structures under the Equal Protection Clause to the extent that they deprive African Americans of the opportunity for effective representation in the political process. The Court has reached its decisions despite the absence of any proof of intentional discrimination in the adoption of …

Embracing Administrative Constitutionalism, Bertrall L. Ross

Bertrall L Ross

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional

questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.

Should courts and theorists embrace or resist administrative

constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …

The State As Witness: Windsor, Shelby County, And Judicial Distrust Of The Legislative Record, Bertrall L. Ross

Bertrall L Ross

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where

the state produces adequate evidence to support its action, the Court sometimes invalidates the …

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Reconsidering Statutory Interpretive Divergence Between Elected And Appointed Judges, Bertrall L. Ross

Bertrall L Ross

No abstract provided.

Minimum Responsiveness And The Political Exclusion Of The Poor, Bertrall Ross, Terry Smith

Bertrall L Ross

No abstract provided.

Against Constitutional Mainstreaming, Bertrall Ross

Bertrall L Ross

No abstract provided.

Reconciling The Booker Conflict: A Substantive Sixth Amendment In A Real Offense Sentencing System, Bertrall Ross

Bertrall L Ross

No abstract provided.

The Representative Equality Principle: Disaggregating The Equal Protection Intent Standard, Bertrall L. Ross

Bertrall L Ross

No abstract provided.

The Costs And Elusive Gains Of Creating Complementarities Between Party And Popular Democracy, Bertrall L. Ross

Bertrall L Ross

No abstract provided.

Against Constitutional Mainstreaming, Bertrall L. Ross

Bertrall L Ross

Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming—an interpretive practice that molds statutes toward the Court’s own preferred values and away from values favored by legislative majorities.

In addition to providing a novel descriptive framework for what the …

Reconciling The Booker Conflict: A Substantive Sixth Amendment In A Real Offense Sentencing System, Bertrall L. Ross

Bertrall L Ross

No abstract provided.