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  • Sense and Nonsense: Standing in the Racial Districting Cases as a Window on the Supreme Court’s View of the Right to Vote

    Congressional redistricting draws the lines within which battles for political power will be fought. It is no surprise, therefore, that the redistricting process has long been the subject of social debate and legal dispute. The Supreme Court has not been able to resolve this dispute, in part, because the Justices have conflicting interpretations of the right to vote. While some Justices view voting as an individual right, others maintain that voting is correctly perceived as group right. This lack of consensus regarding the definition of the right to vote has led to a confusing articulation of the harm implicated by recent districting cases, and of the identification of which citizens can seek redress for that harm. In this Article, the Author provides an overview of modern standing doctrine and focuses on the Court's application (or non- application) in districting cases of the requirement that plaintiffs show an injury-in-fact in order to have standing to sue. It is noted that in recent districting cases, the Court has allowed standing for the type of generalized grievance for which the Court has consistently denied standing in other areas of law. This deviation from established standing doctrine is often criticized as nonsensical. The Author however, argues that this new standing doctrine can only be explained and understood, when limited to voting cases, as reflective of the individual justices' interpretations of the right to vote. The Author concludes that the atypical standing doctrine articulated in the recent districting cases underscores the need for the Court to develop and employ a richer conception of the right to vote that encompasses the goal of achieving a politically fair system.

  • Foxes Guarding the Chicken Coop: Intervention as of Right and the Defense of Civil Rights Remedies

    This article focuses on the recent spate of cases in which educational institutions on the grounds that their race-conscious admissions policies are unconstitutional. The author analyzes the role of minority students and organizations who are the beneficiaries of those polices at the defendant institutions and their recent attempts to intervene in the lawsuits pursuant to Rule 24 of the Federal Rules of Civil Procedure. First, the author argues that under the traditional interpretation of Rule 24(a); intervention of right should be granted to minority students and organizations in the great majority of instances. Second, the author looks at the reasons that courts have denied intervention, analyzing both the rights and interests of the beneficiaries and the presumption that government parties provide adequate representation. Third, the author examines the conflicts between the interests and goals of defendant institutions and beneficiaries, noting the consequences of denying intervention. The author concludes by arguing that where the affirmative action admissions policies of educational institutions are challenged, district courts should embrace a practical presumption in favor of intervention for minority students and organizations

  • Between National and Post-National: Membership in the United States

    This essay argues that the concept of post-nationalism does not precisely explain the American concept of citizenship. This is due to the strict construction of the nation state in American constitutional theory, the ineffective role of international human rights norms in American jurisprudence, and the extension of protection to non-citizens based on territorialist rationales. For these reasons, the author suggests that denizenship is a more appropriate way of viewing the American citizenship model, and is one that explains how notions of personal identity can be transnational while still justifiable within traditional nation-state constructs.

  • An Analysis of the Supreme Court’s Reliance on Racial “Stigma” as a Constitutional Concept in Affirmative Action Cases

    The Article's focus is confined to discussions of race-based affirmative action; it does not consider stigmatization arguments in the context of discrimination involving gender or disabilities, for example. Further, the Article's scope is limited to the stigmatization issue as between Whites and African Americans. Although similar issues exist with respect to other ethnic or racial groups, we view the White/African American paradigm as providing the clearest framework for analysis. Moreover, the cases of Plessy v. Ferguson and Brown v. Board of Education, joint progenitors of stigmatization as a concept having constitutional significance in interpreting the Equal Protection Clause of the Fourteenth Amendment, arose within that paradigm and discuss the stigma concept in that context.

  • The Evolution of Race in the Law: The Supreme Court Moves from Approving Internment of Japanese Americans to Disapproving Affirmative Ation for African Americans

    As the Court suggests, the Korematsu precedent is crucial to the Adarand decision. In Adarand, the Court analyzes Korematsu in depth, acknowledging that its own judgment had been mistaken in the internment cases, instead of simply citing the decisions as it formally had done until the very recent past. The Court nevertheless fails to appreciate the differences between Korematsu and Adarand, and in particular the consequences of using "strict scrutiny" for all racial classifications. This essay explores the complex relation-ship between Korematsu and Adarand, and offers a critique of the reasoning used in both cases. The essay argues that Adarand may permit invidious racial classifications to survive constitutional challenge and that its analysis of the standing issues associated with collateral litigation over affirmative action are inconsistent with its resolution of substantive issues of racial discrimination.

  • Reconsidering Strict Scrutiny of Affirmative Action

    Under the artificial constraints of strict scrutiny, however, the courts are free to veto the government's choice of more effective, race-conscious means. The Supreme Court's unfortunate and ill-conceived adoption of strict scrutiny as the constitutional standard for reviewing race-conscious affirmative action should be reconsidered for several reasons. This Article examines those reasons.