Introduction When I attended Michigan Law School in 1966, as a 2L Harvard transfer, there was only one, or perhaps two, African Americans in a student body of about 1100 students, and if there were any students of Latino heritage their presence went unnoticed. When I began teaching at Michigan in the fall of 1968, the situation had begun to change. There were eight or nine African American...
How Governments Pay: Lawsuits, Budgets, and Police Reform
For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything...
Second-Order Participation in Administrative Law
Public participation has long been a cornerstone of administrative law. Many administrative procedures require participation, and underlying normative theories embrace participation as a way to legitimate the administrative state. It is well recognized that interest groups dominate this participation. Yet the implications of interest-group dominance have been largely overlooked. Administrative...
The Freedom of Speech and Bad Purposes
Can otherwise constitutionally protected speech lose its protection because of the speaker’s supposedly improper purpose? The Supreme Court has sometimes said “no”—but sometimes it has endorsed tests (such as the incitement test) that do turn on a speaker’s purpose. Some lower courts have likewise rejected purpose tests. But others hold that, for instance, a purpose to annoy or distress can turn...
Evolving Jurisdiction Under the Federal Power Act: Promoting Clean Energy Policy
In response to an emerging electricity sector, Congress passed the Federal Power Act (FPA) in 1935 and enshrined a division of jurisdiction between the federal government and the states. Federal jurisdiction would control wholesale electricity and transmission while state jurisdiction would control retail electricity. While Congress intended to establish a jurisdictional bright line...
Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble
Collateral censorship occurs when an intermediary refuses to carry a speaker’s message for fear of legal liability. Election speech intermediaries are prone to engage in collateral censorship because their interests do not align with the interests of election speakers, yet the common law places liability on intermediaries and speakers alike. But collateral censorship is not a problem unique to...
The Misuse of Asian Americans in the Affirmative Action Debate
Opponents of affirmative action often claim that Asian Americans are injured by affirmative action. This argument is both inaccurate and strategic rather than motivated by real concern for Asian Americans. This Essay explains how Asian Americans in fact benefit from affirmative action. It also exposes the way that framing opposition to affirmative action as concern for Asian Americans serves the...
The Indignities of Color Blindness
Introduction Imagine an applicant to a public university who is an accomplished pianist, grew up in a rural town in central Texas, and is African American. Each of these aspects of her background has played a formative role in shaping her identity. Now imagine that the university’s admissions office, which is reviewing her application, has been directed not to consider her race or the race of...