Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education

Scott D. Gerber *

I was flattered to be invited to participate in a February 21, 2014, symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association about “Affirmative Action: Past, Present & Future.” The organizers said that they invited me because they thought I would say something different from my colleagues at the event. They were correct. After all, academia is dominated by the Left, and racial preferences are the sacred cow of the Left, whereas I am a libertarian who sincerely believes that racial preferences are unconstitutional. More importantly, Clarence Thomas thinks they are unconstitutional, and he is coming closer with each passing Term to convincing a majority of his colleagues on the U.S. Supreme Court of this fact.

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Causation in Whistleblowing Claims

Nancy M. Modesitt *

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers.1 But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.

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Filling Federal Court Vacancies in a Presidential Election Year

Carl Tobias*

Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive’s last administration. That policy comprises numerous strands. Important are the conventions—which have permitted the approval of many superb, uncontroversial district court nominees routinely through the fall of most presidential election years and in certain lame duck sessions—while allowing a number of capable, mainstream appellate nominees to manage consideration until the August Recess. The traditions derive from respect for voters’ preferences expressed in the elections, the incoming chief executive, who should have the opportunity to fill vacant judicial posts, and new senators, who must discharge their constitutional responsibility to provide advice and consent on selections.

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Equity and Feasibility Regulation

Dov Waisman*

Two major approaches to regulating industrial health risks have emerged over the past fifty or so years. Feasibility analysis—the approach required by parts of the Clean Air Act of 1970 (Clean Air Act), the Clean Water Act of 1972 (Clean Water Act), and the Occupational Safety and Health Act of 19704 (OSH Act)—says to reduce risks to the maximum extent possible without threatening the existence or competitive stability of the regulated industries. By contrast, cost-benefit analysis (CBA)—the approach that has dominated regulatory policy since the Reagan administration—says to reduce risks to the point at which net social benefits would be maximized, that is, to invest in risk reduction up to (but not beyond) the point at which further investment would cost more than it would save in accident costs.

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COMMENT: Lost in Translation: How Practical Considerations in Kirtsaeng Demand International Exhaustion in Patent Law

Dustin Knight

The right of exclusivity powers the engines of innovation within the United States. Patent law is designed to reward the inventor with a monopoly over his or her creation. The scope of the monopoly a patent holder enjoys, however, has historically been limited in time and space to control its anticompetitive effect. The exhaustion doctrine is a key tool used by courts to police this effect and protect consumers.

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COMMENT: Waging the War Against Unpaid Labor: A Call to Revoke Fact Sheet #71 in Light of Recent Unpaid Internship Litigation

Rachel Willer

In the pilot of her television show Girls, Lena Dunham satirizes unpaid internships by depicting the protagonist, Hannah Horvath, asking her employer to pay her after more than a year of unpaid work.1 Her employer responds with a quip about the competitive nature of her internship at a New York publishing firm and distinguishes her from another employee who the firm hired after a year of interning. While flagrant violations of U.S. labor laws are breezed over as a matter of comedic relief in today‘s media, they represent very real controversies for nearly a million unpaid interns every year.

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Are We Heading Toward a Charter School Bubble?: Lessons from the Subprime Mortgage Crisis

Preston C. Green III *
Bruce D. Baker **
Joseph O. Oluwole ***
Julie F. Mead ****

Since 1992, forty-three states and the District of Columbia have passed charter school legislation. Charter schools are commonly defined as public schools that are given considerable latitude from state rules and regulations that apply to traditional public schools while being held accountable for student achievement. There are more than 6700 charter schools nationwide, serving nearly three million students, which accounts for 6% of public school enrollment.

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The Real Costs of Neoliberal Education Reform: the Case of Philadelphia School Closures

Jerusha Conner *

Kelly Monahan **

Over the last decade, the No Child Left Behind Act of 2001 (NCLB or the Act) has proven to be a boon to the charter school industry. The law enabled districts to turn over the responsibility for running a school to a charter provider if that school has gone five years without consistently raising the test scores of students in any one subgroup or demographic category for which there are more than forty students. The student sub-groups governed by this legislation include, among others, those with special needs, English language learners, low-income students, and students of a particular racial minority. Many districts across the country have availed themselves of the charter conversion option, which the law intended as a sanction that would compel struggling schools to improve. No additional sup-port or resources were provided to these struggling schools under the law.

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COMMENT: Charting the Course: Charter School Exploration in Virginia

Katherine E. Lehnen *

Charter schools have become a hot topic in education nation-wide. Advocates believe the hybrid public and private structure of charter schools enables them to provide education superior to traditional public schools. Charter schools have more freedom than their traditional public school counterparts because they are not subject to the same laws and restrictions. Charters use that freedom to set high standards for themselves and their students, and then strive to meet those standards using alternative, experimental curricula and teaching methods. However, the schools are not without controversy, and opponents question the educational effectiveness of charters, while entities such as teachers unions and local school boards often staunchly combat their formation. Still others believe charter schools conflict with integration efforts. In addition to ideological challenges, charters face various legal battles regarding issues such as religion and equal protection. Nevertheless, the charter school movement has swept across many states in the nation.

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“Race-Conscious” School Finance Litigation: Is a Fourth Wave Emerging?

David G. Hinojosa *

School finance litigation, whether equality-based or adequacy-based, has helped steer state legislators and policymakers toward fairer, more appropriate school finance laws for over five decades and counting. Yet, a common criticism of these cases lingers: simply asking for more dollars for schools will not create the systemic changes needed to help students achieve in the classroom. Those criticisms often fail to acknowledge the research evidencing gains in student performance, including a longitudinal study showing long-term impacts on the most challenging student groups. While those gains are important markers for the school finance movement, the results are limited.

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