Law Commons^™

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

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This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

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Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

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If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley

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This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

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According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …

Dismissing Deterrence, Ellen D. Katz

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The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

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The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

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Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

A Cure Worse Than The Disease?, Ellen D. Katz

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The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

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Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

South Carolina's 'Evolutionary Process', Ellen D. Katz

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When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

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The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz

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Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …

Mission Accomplished?, Ellen D. Katz

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My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

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Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

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A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker

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The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …

The 'Legalization' Of The Family: Toward A Policy Of Supportive Neutrality, David L. Chambers

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The word "legalization" has conflicting meanings. One, intended to sound the theme of this conference, conveys the notion of government regulation permeating some area of human activity. The other-as found, for example, in the phrase "the legalization of marijuana"-is a near opposite: the process of making legal or permissible that which. was previously forbidden, taking government out of that which it had previously controlled. The recent history of government's relationship to the family amply displays both sorts of legalization, both government's intrusion and its withdrawal, and reveals a paradoxical relation between the two-that as government frees people to live their …

Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine

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Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell the story. …

Comment On Powell V. Mccormack, Terrance Sandalow

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The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …