Faculty Bibliography

For the Balkinization symposium on Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics-and How to Cure It (Yale University Press, 2022).

How do judges think about partisan gerrymandering? This chapter, by two law professors, is an answer to that question. The authors highlight both parallels between racial and partisan gerrymandering and divergences in the legal logic.

True representative democracy depends on making access to voting a realistic option for all.

The US Supreme Court created a new doctrine—incorporation—as a temporary way station for newly acquired territories. The doctrine allowed Congress whatever time it needed to ensure that these new lands and its inhabitants were fit to join the United States permanently. The doctrine was also intended to serve an educative role, allowing for what the political elites of the day viewed as the uncivilized territorial subjects the needed time to acculturate to a supposedly superior Anglo-Saxon civilization. Yet a century later, territorial subjects remain unincorporated—and presumably implicitly uncivilized. Territorial subjects are stuck in a colonial status with no obvious path forward. All relevant institutions have shamefully failed them, from Congress and the President to the Supreme Court and federal agencies. In response to these failures, this Article argues that the status of Puerto Rico is a shame on the Constitution and our constitutional culture. It suggests that given that both the courts and the political process have been closed off to advocates who are seeking the end of colonialism in Puerto Rico, the only path forward is to shame the nation as a way to shift the constitutional norms at the heart of the colonial status of the territories. The Article draws from past historical moments to sketch out what role shame can play in constitutional interpretation and changing constitutional norms and jurisprudence.

The conservative majority’s opinion has declared that voter fraud, not racial discrimination, is a threat to the American system of representation.

On March 9, 2021, the Election Law Journal hosted a panel on “Restoring Trust in the Voting Process.”

Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call pathological racism, that limits its capacity for addressing the fundamental restructuring that racial justice requires. We suggest, in a manner that might be viewed as counterintuitive, that targeted universalist remedies might be more effective to address the long term racial inequality but might also be the more radical approach to addressing racial discrimination.

The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

The killings of George Floyd, Michael Brown, Trayvon Martin, and others have occurred under different factual circumstances, in different states, at the hands of both state and private actors, and have engendered different levels of outrage on the basis of their perceived egregiousness. Collectively and cumulatively, they have forced Americans to, once again, wrestle with the visible manifestation of racism and structural inequality. This confrontation is not simply a function of the inability to avert one’s eyes when faced with incontrovertible evidence of evident inhumanity and abject degradation, though it is in part that. After all, how to justify the deployment of state power to literally snuff the breath of another human being who was otherwise harmlessly restrained and presented a threat to no one? Or, how not to be appalled by three white men effectively hunting down and shooting a black man who was simply jogging? These facts are self-evidently heinous, and the only acceptable reaction is outrage. Ours is a moment rife with the possibilities of racial justice. Fundamental change seems possible. The question for the future is about how to harness this moment to make this fundamental change real and lasting. How does a movement translate its demands into actionable policy? In this Essay, we argue for a three-step incremental process, from protest to politics to law. Taking as our example the case of the Voting Rights Act, we illustrate how the Freedom Movement went from its voting rights campaign to the heart of the Democratic Party and ultimately to August 6, 1965, when President Johnson signed the Voting Rights Act into law. Fundamental change, as we show in the pages that follow, requires all three steps.

Book review of The Purpose of Power: How We Come Together When We Fall Apart by Alicia Garza.

In Rucho v. Common Cause, the court could have curbed extreme partisanship.

This Essay, a precursor to a larger project, uses Rucho v. Common Cause, to argue that there are two different normative conception of politics in the Court's law and politics jurisprudence. For the conservative Justices on the Court, politics is sordid, partisan, and unfair. Law and politics cases, specifically political-gerrymandering claims, ask the Court to perform a task that courts are ill-equipped to perform, which is to clean up a process that is inherently dirty and to make fair a process that is inherently partial. Rucho, representing the Court's law and politics cases more broadly, is both an affirmation of a traditional conception of politics and also a rejection of a more modern conception that is beginning to find a foothold in American politics — with roots in the Court’s malapportionment jurisprudence — about how representative democratic institutions ought to operate. This more modern approach reflects the beliefs that representative electoral structures and American politics more generally ought to include some basic notion of fairness; a commitment to the public good without the hindrance of partisanship; and a conception of fair play that constrains the behavior of those who design electoral structures. In contrast to the majority in Rucho, proponents of the modern conception envision a role for the Court in enforcing basic rules of fairness and fair play while at the same time indirectly promoting a particular vision of the public good that is not filtered through partisan identity in the design of structures of representation. In order to understand the division in Rucho, why the plaintiffs in Rucho failed to win over the conservatives on the Court, and the Court's law and politics cases more broadly, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist — outside of race and the equal-population principle — that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? This essay explores those issues.

This Article offers a positive and normative account of an important and growing trend: wealthy individuals are increasingly giving their money to the government to encourage the government to fund particular projects that these individuals want the government to pursue. Such gifts--dubbed "patriotic philanthropy" by one prominent donor--raise fundamental questions about the role that private money plays and ought to play in public policy-making. Legal academics have addressed these types of questions in other contexts, such as campaign financing, privatization of government, and private philanthropy. However, patriotic philanthropy, which presents a new and perhaps more effective way for wealthy individuals to influence the government, has generally escaped the attention of the legal literature. We aim to remedy that lacuna with this Article. Although we do not question the enormous good that patriotic philanthropy can do, this Article argues that gifts to government raise significant concerns about democratic profess, equality, and state capacity.

White Supremacy pervades American history. Moreover, notwithstanding landmark civil rights gains and egalitarian aspirations, America remains segregated and unequal. This book examines the role of law in reinforcing and ameliorating racial injustice. Although surveying key historical precedents, its primary focus is the present. The book examines contemporary controversies across a variety of settings, animated by three fundamental questions: What is the current racial order? To what extent is it unjust? How can law and legal actors advance a more racially just order? The book uses cases, statutes and other sources of law, supplemented by problems and exercises, to equip students to both critique and construct pragmatic solutions to race-related controversies.

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings allowed the bourgeoisie to use their reason to determine the boundaries of public and private and to self-consciously develop the public sphere. As Habermas writes, “[t]he medium of this political confrontation was . . . people’s public use of their reason.” The bourgeois public didn’t simply participate, but it did so both directly and critically. The development of the bourgeois public as a critical, intellectual public took place in coffeehouses, in salons, and table societies. In Great Britain, Germany, and France, particularly, the coffeehouses and the salons “were centers of criticism—literary at first, then also political—in which began to emerge, between aristocratic society and bourgeois intellectuals, a certain parity of the educated.” Intellectual equals came together and deliberated, an equality that was key in ensuring the requisite openness and deliberation. No one person dominated the discussion due to his status within the deliberative community. Instead, and above all else, the “power of the better argument” won out. Two conditions were critical to these deliberations. First, equality was key to the public sphere. Membership in the public sphere meant that no one person was above the other and all arguments were similarly treated and scrutinized. Second, the principle of universal access was crucial.8The doors of the deliberative space were open to all comers and no group or person was purposefully shut out. Seen together, these two conditions provide a blueprint for deliberative practices in a democratic society.

The Voting Rights Act ("VRA"), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA originally enacted, is no longer the best way to understand today's voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to understand first how we arrived at the moment of the VRA's disintegration so as not to repeat the mistakes of the not too distant past. In this Article, we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. From this premise, we outline three paths for the future of voting rights policy: (1) rebuilding a new consensus over the racial discrimination model; (2) forging a new consensus over what we call an autonomy model; or (3) reconceiving voting rights in universal terms.

In response to Professor Lawrence Lessig's Jorde Lecture, I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Professor Lessig wants us to think about. I argue that Professor Lessig's real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Professor Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted.

There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is a problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

Professors Guy-Uriel Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entitites and organized interest groups of various stripes--what they will call institutional intermediaries--may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights.

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply "not that smart." For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative Justices like Antonin Scalia, Samuel Alito, and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004 to 2006, when Sotomayor was on the Court of Appeals for the Second Circuit, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.

This book offers a critical reevaluation of three fundamental and interlocking themes in American democracy: the relationship between race and politics, the performance and reform of election systems, and the role of courts in regulating the political process. This edited volume features contributions from some of the leading voices in election law and social science. The authors address the recurring questions for American democracy and identify new challenges for the twenty-first century. They not only consider where current policy and scholarship is headed, but also suggest where it ought to go over the next two decades. The book thus provides intellectual guideposts for future scholarship and policy making in American democracy.

In response to Christopher S. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377 (2012).

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009).

In a series of voting rights cases, the U.S. Supreme Court held that race-based redistricting, particularly the intentional formation of majority–minority districts (districts in which voters of color constitute a majority of eligible voters) may be unconstitutional if race was the predominant factor in the formation of the district. The Court stated that “redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race” may violate the Constitution because of the messages such districts send to the public ( Shaw v. Reno, 1993 ). Yet neither the Court nor social scientists have examined whether the existence of race-conscious majority–minority districts sends messages to voters and what the nature of these messages may be. This research begins to address this scientific issue. In a quantitative content analysis, we examined messages about racial redistricting conveyed to citizens via the print media. Our sample consisted of 355 newspaper articles about redistricting included in the Lexis–Nexis database between 1990 and 2005. We found that newspaper coverage of racial districting contains messages to citizens about the motives involved in redistricting, the individuals and groups who are responsible for it, and its actual and expected effects. This finding is consistent with the Supreme Court's assumption that districts, particularly bizarrely shaped ones, convey distinct messages to voters. The specific messages communicated varied in important ways across the articles. Newspapers in states subject to Section 5 of the Voting Rights Act because of their history of discrimination against voters of color covered racial redistricting differently than states not subject to Section 5. We discuss the legal and theoretical implications of these findings for understanding the role of race in legislative redistricting efforts.

This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes--political gerrymandering--may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme Court should regulate political gerrymandering; instead, it argues that such regulation can be justified. This Article also develops a framework of election law dualism to resolve the structural challenges that political gerrymandering poses to adjudication.