Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter – Postscript (Comment) by David Orentlicher

From Volume 84, Number 1 (November 2010)

Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.

To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. Thus, once you decide to purchase health care insurance, the government can regulate the terms of your insurance policy. However, you cannot be forced to purchase the policy in the first place. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.



Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test – Note by Douglas A. Wick

From Volume 83, Number 6 (September 2010)

On a crisp January night, a SWAT team descends on a house in Pullman, Washington. Onlookers can only imagine what type of crime warrants such a response. Was it a hostage situation? Were they trying to subdue a psychotic killer? Maybe there was a violent drug cartel operating out of the house? No. On January 21, 2009, a SWAT team raided a Washington State University fraternity house because some college students may have been drinking alcoholic beverages before their twenty-first birthdays. 

The National Minimum Drinking Age Act forced states to raise their drinking age to twenty-one, or lose federal highway funds. The negative side effects of that law—illustrated by the extreme example above—are leading many to call for its abolition. The American Recovery and Reinvestment Act of 2009 will dole out $144 billion to ease fiscal pressures on state and local governments, but instead of allowing them to spend the money based on their best judgments, Congress attached unattractive conditions to the grants. The No Child Left Behind Act of 2001 grants money to states conditioned upon school districts meeting federally imposed education standards. The result is bad education policy the states cannot afford to abandon, lest they lose much-needed federal aid. Congress could not enact any of these policies directly. Instead, Congress used its spending power to indirectly regulate these state and local matters via conditional grants.



“These Scales Tell Us That There Is Something Wrong with You”: How Fat Students Are Systematically Denied Access to Fair and Equal Education and What We Can Do to Stop This – Note by Michelle Stover

From Volume 83, Number 4 (May 2010)

The Supreme Court’s decision to bar the foreign Fat students are denied access to fair and equal education due to widespread antifat discrimination. Unfortunately, there are currently no statutes that provide adequate recourse for fat students. Thus, this Note advocates the drafting of new legislation specifically aimed at eliminating discrimination against students on the basis of fatness and recommends measures that can be adopted by school districts to combat discrimination against fat students.



Domesticating Intelligence – Article by Samuel J. Rascoff

From Volume 83, Number 3 (March 2010)

In the best of circumstances, governing domestic intelligence is challenging. Intelligence sits in an uncomfortable relationship with law’s commitment to transparency and accountability. History amply demonstrates that intelligence—including domestic intelligence—frequently begins where the rule of law gives out. 

The inherent difficulty of governing intelligence has been unnecessarily exacerbated by a deep-seated and longstanding confusion about what domestic intelligence is. For over a century, policymakers and academic commentators have assumed that it is essentially a form of criminal investigation and that criminal law supplies the logical starting place for its effective governance. Over the years, this faulty premise has fostered a boom-and-bust cycle in intelligence governance; domestic intelligence has been, at different times, effectively out of business or unchecked by law. 

This Article introduces a new way to think about domestic intelligence and its governance. Domestic intelligence is a kind of risk assessment, a regulatory activity familiar across the administrative state. Similar to risk assessments in environmental or health and safety law, domestic intelligence seeks to quantify a risk before it materializes, based on the careful analysis of aggregative data.



Book Review: Reply – Article by Ariela J. Gross

From Volume 83, Number 3 (March 2010)

What Blood Won’t Tell: A History of Race on Trial in America tells the history of race and racism in the United States through the lens of trials of racial identity—cases in which courts or administrative bodies determined whether someone was black, white, or Indian. The book is first and foremost a history of the shifting ways Americans have used the law to create “race,” a system of ordering people hierarchically with grave consequences for liberty, property, and rights. While many histories of race and law emphasize the rise of a “one drop of blood rule” as uniquely degrading to African Americans because of its association of “negro” blood with taint, and focus on evidence from statutes and high court pronouncements, my book instead looks at law “on the ground.” 

In practice, degree-of-blood rules were not as important as other forms of racial knowledge, especially evidence of racial performances and associations, and certain kinds of racial “science” and expertise. Moreover, the discourse of racial performance rose together with the better-known discourse of science in the mid-nineteenth century, and they were not perceived as opposites or mutually exclusive. My point is not to show that race is legally “constructed”—a starting rather than an endpoint of the narrative—nor that race was contingent, performative, and fluid, but to show that making race depend on performance drew a close connection between whiteness and citizenship in U.S. law. It is this imaginary connection between whiteness and fitness for citizenship that I believe remains a potent force today in debates over immigration, the PATRIOT Act, and innumerable other public questions.



Book Review: Reading Between the (Blood) Lines – Article by Rose Cuison Villazor

From Volume 83, Number 3 (March 2010)

Legal scholars and historians have recognized the rule of hypodescent—that “one drop” of African blood categorized one as Black—as one of the powerful tools that law and society deployed to construct racial identities and deny equal citizenship. Indeed, at least one prominent scholar has suggested that the concept of hypodescent operated as the most determinative method of ascertaining racial identity. Formalistic in its application, the hypodescent rule ensured “[t]hat even Blacks who did not look Black were kept in their place.” 

Ariela J. Gross’s new book, What Blood Won’t Tell: A History of Race on Trial in America, boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, What Blood Won’t Tell argues that the legal and social construction of race was far more complex, flexible, and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. Using racial identity trials and local records as sites for examining the legal production of race, What Blood Won’t Tell exposes the various methods that local citizens deployed to define race. “Common sense,” “race performance,” and “race by association” were among the informal and subjective factors that ignored the formalism of blood rules in the prescription of racial identity. Thus, contrary to the general view that blood always determined race, What Blood Won’t Tell illustrates how people were “raced” despite their blood—leading Gross to boldly state that “we have made too much of the ‘hypodescent’ rule.”



Book Review: The “Common Sense” of Race – Article by Neil Gotanda

From Volume 83, Number 3 (March 2010)

In What Blood Won’t Tell: A History of Race on Trial in America, Ariela J. Gross provides a compelling and nuanced account of race in America. Through her examination of “racial trials”—litigation in which racial identification plays a crucial role—Gross ties together the personal, social, and political dimensions of racial identity and classification. This discussion provides an important new perspective on the study of race in this country. 

Earlier studies of racial classification have focused on the meanings of statutory racial categories. Gross, however, centers her analysis on the formation and reaffirmation of racial categories as a primarily social process. Gross draws from numerous racial trials—spanning slavery in the antebellum South to modern-day Mexican Americans grappling with “whiteness”—in order to survey the origins and history of “black” and “white” as categories in American life.



Book Review: Race, Blood, and What the Alligator Knows: A Review of What Blood Won’t Tell – Article by Jason A. Gillmer

From Volume 83, Number 3 (March 2010)

From the opening pages of Ariela J. Gross’s What Blood Won’t Tell: A History of Race on Trial in America, it is clear that the reader is about to embark on something special. The story begins in a Louisiana courthouse in 1857, with an enslaved woman named Alexina Morrison claiming that she is white. For her contemporaries, the assertion no doubt carried troubling implications. James White, the man who insisted Morrison was black, had papers to prove that he paid good money for her and that she was his property. But her “blue eyes and flaxen hair” told a different story, and her recent appearances at public balls in Jefferson Parish had convinced a number of residents that her graceful mannerisms and affectations were those of a white woman rather than slave. The courtroom was soon bombarded with a dizzying array of evidence for such a simple question—was she white or was she black?—with men eventually stripping her to the waist to examine her body for the tiniest signs of her true identity. Three trials later, the community still had not resolved the issue. But more importantly, from Gross’s view, this case provides an unparalleled opportunity to examine the complex and constantly shifting ground of race and its import for this nation’s history.



The Political Economy of Youngstown – Article by Edward T. Swaine

From Volume 83, Number 2 (January 2010)

The time is ripe for a nondoctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond the personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power. 

A political economy approach better explains the problem to which Justice Jackson was responding—the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis—and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously—that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both case studies and empirical surveys of executive orders suggest that the president may react to the risk of legislative disapproval (which, under Youngstown, will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives—and, in general, advocates reseizing Steel Seizure.



What Dignity Demands: The Challenge of Creating Sexual Harassment Protections For Prisons and Other Nonworkplace Settings – Article by Camille Gear Rich

From Volume 83, Number 1 (November 2009)

In the more than twenty years since the Supreme Court created Title VII’s workplace sexual harassment protections, judges and feminist legal scholars have struggled to create a clear, conceptual account of the harm sexual harassment inflicts. For years, many courts and scholars were content to justify sexual harassment law by arguing that harassment should be prohibited because it interferes with women’s interest in workplace gender equality; however, by the late 1990s, several feminist legal scholars had revealed the inadequacy of this account, suggesting instead that harassment law should be understood as protecting women from dignitary harm. The failure to reach a broad-based consensus about the injury sexual harassment inflicts, and relatedly about sexual harassment law’s purpose, appeared without significant consequence until federal courts began using understandings developed in the context of workplace sexual harassment law to develop new sexual harassment doctrine for nonworkplace settings. Operating without clear conceptual moorings, many federal courts created narrow, cabined sexual harassment protections governing nonworkplace settings, often without principled justifications for doing so. To demonstrate the serious nature of this problem, this Article explores the Eighth Amendment sexual harassment doctrine courts have created to govern prisoners’ sexual harassment claims against guards, demonstrating the myriad ways in which workplace sexual harassment doctrine has distorted the development of prisoners’ sexual harassment protections. Yet the prison cases discussed here are offered as an example of a potentially far broader phenomenon. To address the larger issue—the distorting effects workplace sexual harassment law has had on other areas of sexual harassment doctrine—this Article argues that we should return to the dignitary account of sexual harassment law that was introduced by feminist workplace sexual harassment scholars in the late 1990s. However, in order to use this dignity analysis for settings other than the workplace, the dignitary framework these scholars introduced must be expanded and particularized to account for the different dignity expectations a person may reasonably hold in different institutional contexts. To that end, this Article offers a nuanced, context-specific analysis that will allow federal courts to determine “what dignity demands” in each institutional setting. The Article demonstrates that this dignitary framework will allow federal courts to identify the key considerations that should be weighed when creating sexual harassment doctrine for locations other than the workplace.