Reverse Passing

Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the corollary process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship.

Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article takes a contrary position.

Though reverse passing is often framed as deviant or irrational, this Article demonstrates how the U.S. Supreme Court’s affirmative action jurisprudence creates tangible and intangible incentives for white actors to identify as nonwhite. It suggests that the Court’s entrenchment of the diversity rationale as the primary compelling state interest that can be used to justify race-conscious affirmative action programs generated situational value in nonwhiteness. That situational value in nonwhiteness now creates incentives that previously did not exist for whites to reverse-pass in order to obtain access to opportunities in education, employment and beyond.

This Article is the first to coin, analyze, and propose a theory of reverse passing. It also deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Finally, given the reconsideration of the diversity rationale by the Supreme Court in Fisher v. University of Texas at Austin, this Article also provides an opportunity to critically examine the merits and shortcomings of the diversity rationale.

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When a Promise Is Not a Promise: Chicago-Style Pensions

Cities and states around the country have promised their workers—most often teachers, police officers, and firefighters—retirement benefits, but have in many cases failed to set aside adequate assets to fund those benefits. Several of these pension plans are predicted to become insolvent within the next decade and innumerable additional plans appear headed for insolvency in the decade that follows. Once insolvency occurs, pension benefits due to retirees will either have to be paid out of the government’s cash on hand, or simply not be paid at all. Based on their current financial positions, most jurisdictions appear unable to fund pension benefits while maintaining essential governmental services, unless taxes are raised significantly. This Article is the first to examine whether and to what extent retirees will have effective legal recourse to secure the payment of their pensions in the event of retirement plan insolvency—a critical issue not only for pensioners, but also for taxpayers. It concludes that law is unlikely to provide effective recourse for retirees due to the inability of courts to force legislatures to appropriate funds, raise taxes, or incur debt. As a result, even in cities and states with apparently iron-clad legal protection for pension benefits, pension fund insolvency leaves payment of benefits in doubt, with any solution resting solely with the legislative branch. Understanding that it is politics, not law, that will play the primary role in solving the public pension problem is critical knowledge for all interested parties as they work toward a fair solution.

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Regulating Gun Rentals

A machine gun overpowers a nine-year-old girl, erratically spraying bullets and accidentally killing her instructor; a perturbed mother slays her son and then takes her own life; a convicted felon circumvents federal prohibitions to access a firearm to commit suicide; and, perhaps most notably, Navy SEAL war veteran Chris Kyle, focus of the movie American Sniper, is murdered while attempting to help another veteran recover from post-traumatic stress disorder. We have all seen the headlines, but we have largely ignored the source of this heartbreak. The ramifications of these examples are not merely cinematic, but also involve families suffering from grievous loss. Much ink has been spilled over these news stories, yet only a minimal amount of attention has been paid to the legal issues involved. Other than preventable tragedy, what is the common denominator in these stories? All of these misfortunes took place at a law-abiding gun range.

Few debates are as heated as those involving the Second Amendment right to bear arms and the role of the state in regulating that right. Despite this extensive discussion, the issue of firearm violence on gun ranges has been left unexamined. Loopholes in the regulatory framework for gun ranges endanger our loved ones and threaten public safety across the country.

This Article argues that, unlike gun ownership, on-premises gun rental does not implicate the core protections of the Second Amendment as defined in District of Columbia v. Heller. Heller explains that the Second Amendment confers an individual right “to keep and bear Arms” for the purpose of self-defense in the home. This right, however, refers only to ownership, and renters—by definition—do not own rented firearms. Moreover, gun rentals are, at best, only tangentially related to an individual’s right to self-defense.

To close the loopholes in the current regulatory framework, this Article proposes rational gun rental regulations that will ultimately increase safety on gun ranges and minimize the loss of life that has become all too familiar, but often overlooked, in many areas of the country. These regulations include: (1) treating on-premises and off-premises gun rentals the same; (2) requiring National Instant Criminal Background Check System checks for non-gun owners who borrow weapons; (3) limiting the types of guns permitted for rental; and (4) imposing minimum age requirements. Because gun rental regulations do not implicate any ownership or self-defense interests, this Article argues that these regulations should receive rational basis constitutional review only. Given the government’s strong interest in ensuring public safety and the relatively minor burden imposed on gun renters, gun rental regulations would easily pass muster under this standard. Further, even if a court were to find that gun rental regulations warrant intermediate constitutional scrutiny, this Article demonstrates that these regulations would also survive a heightened level of review.

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Can a Tailor Mend the Analytical Hole? A Framework for Understanding Corporate Constitutional Rights

The Supreme Court’s decisions relating to corporate constitutional rights are a conceptual quagmire. While the Court has grappled with the proper scope of corporate rights for more than two centuries, it has failed to articulate a consistent approach to determine which rights corporations should receive and how those rights should be delineated. As a result, the Court has issued a long line of decisions with conflicting and internally inconsistent reasoning—sometimes extending the existence and scope of certain constitutional rights to corporations, while at other times limiting entire categories of rights to natural persons. The Court’s recent decisions in Citizens United v. Federal Election Commission and Burwell v. Hobby Lobby Stores, both of which expanded the scope of corporate constitutional rights, have resulted in increased scrutiny of the Court’s seemingly ad hoc process of adjudicating corporate rights.

This Comment proposes an analytical and normative framework drawn from the Supreme Court’s jurisprudence on institutional tailoring to fill this void. In several other settings, including government workplaces, prisons, and K–12 public schools, the Court has limited people’s constitutional rights to bring about greater institutional effectiveness and efficiency. Although institutional tailoring has historically been limited to these institutions, its underlying rationales apply with equal or greater force to corporations. Institutional tailoring can therefore serve as an analytical framework for the Court to decide the precise scope of corporate constitutional rights.

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Exiting Solitary Confinement: A Survey of State Correctional Policies

Given the emerging consensus that solitary is a weapon used with distressing frequency in U.S. prisons, researchers and practitioners must seriously consider existing tools that allow prisoners to contest their confinement. Thus, although most states now have policies and procedures detailing how prisoners are assigned to solitary, this Comment analyzes policies on the opposite end of the confinement setting—namely, the explicit procedures that explain how to exit solitary, and whether these procedures provide prisoners with proper incentives and guidelines for their release.

This Comment surveys ten states—Arizona, California, Florida, Georgia, Illinois, Michigan, New York, Ohio, Pennsylvania, and Texas—that collectively house more than half of the state prisoners in the nation, examining any policies and procedures that describe how prisoners can exit solitary confinement. The survey reveals that all ten states have exit procedures for solitary, although they vary considerably in detail and clarity. The Comment proceeds to offer a detailed analysis of the compiled policies and procedures according to certain themes that emerge across states—in particular, the level of prisoner involvement in the exit procedures, the factors considered by the state department of corrections when determining whether to release a prisoner from solitary, and the timing of that release. By comparing exit policies and procedures across states for recurring themes and patterns, this Comment contributes to the field of existing research and supports ongoing efforts to examine, reform, and ultimately limit the use of solitary confinement.

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