CategoryDiscourse

Introduction In February 2016, a federal district court in Fields v. City of Philadelphia1 held there is no First Amendment2 right to record images of police performing duties in public places, “absent any criticism or challenge to police conduct.”3  Specifically, U.S. District Judge Mark Kearney found “no basis to craft a new First Amendment right based solely on ‘observing and recording’...

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...

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...

Introduction The following is an excerpt from the transcript of oral argument in Fisher v. University of Texas at Austin,1 argued before the U.S. Supreme Court on December 9, 2015.  Gregory G. Garre represented the University of Texas. Chief Justice Roberts: What—what unique—what unique perspective does a minority student bring to a physics class? Mr. Garre: Your Honor— Chief Justice Roberts:...

This Essay considers the lessons social science research brings to the constitutional inquiry in Fisher II, and to Justice Kennedy’s decisive vote in particular. The author summarizes empirical findings demonstrating the harm that further restrictions on the consideration of race in admissions would bring to student body diversity and to institutions’ ability to support the success of all...

This Essay examines the growing threat of workplace political coercion, such as when employers attempt to threaten or coerce their workers into supporting firm-favored issues, policies, or political candidates. We describe, for the first time, the prevalence of such coercion, and propose a relatively straightforward legislative fix that would protect private-sector workers from the risk of...

An essay reviewing the inaugural Justice Antonin Scalia Lecture, titled “Interpreting the Unwritten Constitution,” presented at Harvard Law School by Judge Frank H. Easterbrook on November 14, 2014.

This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are ap...

California recently enacted Senate Bill 277, which abolishes the personal beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such a position. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of...

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both...