All Online Essays

What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause

Kohler-Hausmann, Issa | May 8, 2020

Students for Fair Admissions (SFFA) v. Harvard—a case alleging racial discrimination against Asian applicants in undergraduate admissions on appeal to the First Circuit—is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence. The case could well end affirmative action in higher education and beyond if it winds up at the Supreme Court. However, the central issue in this case is not an evidentiary question about what is probative of discrimination; it is a substantive question about what constitutes discrimination. The plaintiffs SFFA put forward a substantive definition of racial nondiscrimination—group-based conditional parity—under which equal protection is denied if applicants grouped by race do not face similar likelihood of admission conditional on having similar credentials. Neither Harvard, in defending their affirmative action practices, nor the trial judge, in ostensibly favoring Harvard’s expert findings, meaningfully countered SFFA’s definition of discrimination. This Essay argues that there is no good normative reason to accept this definition of what equal protection demands in the context of higher education admissions because it will be violated whenever groups sit in some relation of social and material inequality to each other. Furthermore, it is at odds with the Supreme Court’s line of cases allowing universities to value racial diversity and the graded scrutiny scale in the equal protection doctrine. Before to debating the content of a substantive principle of nondiscrimination/equal protection with respect to a particular form of groupness, we must first define what constitutes that form of social groupness. A relation of equality and fairness proposed by a principle of ‘nondiscrimination’ or ‘equal protection’ is only valid in light of what makes the social grouping what it is under current conditions.

Author

Professor of Law & Sociology, Yale University. I am very grateful to Lily Hu, Moritz Hardt, Robert Post, Gideon Yaffe, Elise C. Boddie, Sharad Goel, and Josh Cohen for generous and helpful feedback, and to the editorial board of the Northwestern University Law Review for their dedicated work on the piece. A special thanks to Arjun Mody for excellent and patient RA work over the past year. And to Katie, for endless patience over countless dinners with DAGs on napkins and doctrinal debates . . . thank you and love you.

Cite as: Issa Kohler-Hausmann, What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause, 115 Nw. U.L. Rev. Online 1 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1287&context=nulr_online&preview_mode=1&z=1588965302.

The New Swing Votes on the U.S. Supreme Court

Harris, Daniel | March 20, 2020

The big surprise on the U.S. Supreme Court during the October 2018 term was how often the Court’s newest members disagreed with each other. In cases with at least one dissent, Justice Neil Gorsuch and Justice Brett Kavanaugh were on opposite sides 49% of the time. Frequently, one or the other joined with the Court’s four Democratic appointees, resulting in liberal victories in cases involving federal business regulation and federal criminal law.

There is a pattern to the disagreements between the new appointees— the two Justices have profoundly different attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government. As a result, he tends to resolve ambiguities in favor of the government and the exercise of federal power. Justice Gorsuch, on the other hand, has a skeptical attitude toward federal power. He resolves doubts against the government and the exercise of federal power. As a practical matter, this means that Justice Kavanaugh is a potential liberal ally in federal regulatory cases and Justice Gorsuch is a likely ally in federal criminal cases.

Author

Adjunct Professor of Agency Law, Chicago-Kent College of Law.

Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. Online 258 (2020), https://scholarlycommons.law.northwestern.edu/cgi/editor.cgi?window=abstract&article=1286&context=nulr_online.

From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States

Heath, J. Benton | February 25, 2020

The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine.

Author

Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing.

Cite as: J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 Nw. U. L. Rev. Online 250, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1285&context=nulr_online&preview_mode=1&z=1582655976.

Kafka’s Court: Seeking Law and Justice at Guantanamo Bay

Alka Pradhan | February 7, 2020

Alka Pradhan, Kafka’s Court: Seeking Law and Justice at Guantanamo Bay, in Women & Law 151 (2020) (joint publication of the top sixteen law reviews).

Considering a Domestic Terrorism Statute and Its Alternatives

Francesca Laguardia | January 17, 2020

Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate right-wing organizations as “terrorists.” Law enforcement pursuing international terrorists rely on these designations and material support statutes far more than on any statutes prohibiting terrorist acts, largely because the acts prohibited are so limited that they are rarely useful, even in the international context.
But the two options of designating domestic terrorist organizations or creating a broad terrorism statute are highly problematic. This Essay discusses the barriers to prosecuting domestic terrorists as terrorists, including the problems with current terrorism statutes in responding to modern, small scale attacks and the tactics used to prosecute international terrorists. It then explores the problems with broad, generalized terrorism statutes that have been passed at the state level and drafted in Congress, and the problems with simply applying the international framework for terrorist designations to domestic terrorists. Finally, it suggests several alternative options to lessen the disparity between the handling of right-wing and other domestic terrorists, and international terrorists.

Author

Associate Professor, Justice Studies, Montclair State University. J.D., New York University School of Law, 2007; Ph.D., New York University Institute for Law and Society, 2012.

Cite as: Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives, 114 Nw. U. L. Rev. Online 212 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1283&context=nulr_online&preview_mode=1&z=15792735007.