Explores the complications that arise in the definition of rights and in the operation of remedies when the Equal Protection Clause is used in criminal adjudication.

Identifies the practical and doctrinal difficulties political actors will confront after the 2000 census in performing and policing the decennial reapportionment. Current federal law imposes a set of potentially contradictory constraints on the redistricting process. The interplay among these rules--as well as the interplay between the substantive rules and various "institutional" rules that allocate redistricting power among state and federal judicial, legislative, and executive officials and unofficial parties--has conspired to turn redistricting into an ongoing passion play. Professor Karlan focuses on how three recent appearances on the political-legal landscape may destabilize doctrine even further. The continuing partisan realignment of the South, combined with the premium the Supreme Court has placed on the geographic compactness of majority-nonwhite districts, may result in deadlock within the political branches or may exacerbate racial tension in the redistricting process. The presence of minority incumbents in post-Shaw remedial districts and the reallocation of seats among the states will inject unsettled questions into the special preclearance process mandated by Section 5 of the Voting Rights Act. Finally, a variety of factors are likely to push more redistricting battles into state courts, raising complicated substantive and jurisdictional questions.

Addresses the claim that the creation of majority-black [voting] districts has perversely injured the very people they were thought to help, and assess the theoretical and empirical underpinnings of "bleaching" theory.

Considers Shaw v. Reno and other race-conscious voting rights rulings in relation to John Hart Ely's commentary on standing and injury.

There are a host of legal regulations governing the political process, but two fictional "laws" seem to affect the process as much as any statute. The First Law of Political Thermodynamics holds that the desire for political power cannot be destroyed; at most, it can be channeled into different forms. The Third Law   of Political Motion predicts that every reform effort will produce a corresponding series of reactions designed to maintain the existing distribution of power.

Critiques Ribstein's assumptions about the source and binding force of reputation and his suggestion of a relatively linear and positive relationship between size and reputation.

In an essay on Justice Blackmun's contribution to the jurisprudence of sexual orientation, "my thesis here is that just as equality can 'backstop' liberty, so too liberty can serve to backstop equality. That is, liberty arguments can explain why two classes of individuals cannot be treated unequally."

In an essay on Justice Blackmun's contribution to the jurisprudence of sexual orientation, "my thesis here is that just as equality can 'backstop' liberty, so too liberty can serve to backstop equality. That is, liberty arguments can explain why two classes of individuals cannot be treated unequally."

Reviews casebooks on the regulation of the political process.

This Article offers a tentative taxonomy of judicial independence. We might align the various potential constraints judges face on their freedom to make a particular decision along a continuum. At one end, the conception of judicial independence is entirely negative: It consists of the ability to avoid a distinct source of coercion. At the other end, the conception may be categorically positive: Judicial independence consists of a judge's freedom to pursue her own conception of some desideratum (the truth, the good, the just, the law) wherever it goes.

First, we think political money, like water, has to go somewhere. It never really disappears into thin air. Second, we think political money, like water, is part of a broader ecosystem. Understanding why it flows where it does and what functions it serves when it gets there requires thinking about the system as a whole.

Does constitutional law represent the dogma of the educated elite? Although one of our co-panelists takes this question as a springboard for broad argument about contemporary "culture wars," we prefer to take the question on its own terms. That seems, frankly, more interesting. But what are those terms exactly? Upon reflection, all three of the question's key terms--"dogma," "educated elite," and "constitutional law"--pose interpretive troubles. Luckily, they are fruitful ones. In this brief essay, we will try to show that, in an important sense, the question we were charged with discussing is trivially true and uninteresting. We feel, therefore, it is the wrong question to ask. Instead, heeding the original question's critical thrust, we suggest a different, comparative question, one which ultimately leads us to defend constitutional law as a general practice. In the end, we believe, democracy requires a robust form of it.

In this Essay, which is a response to Robinson Everett's Redistricting in North Carolina-A Personal Perspective, I argue that the Shaw line of cases and the Supreme Court's recent decision in Bush v. Gore share some critical features. Each involves what I call "structural" equal protection. The Supreme Court deploys the Equal Protection Clause not to protect the rights of an identifiable group of individuals, particularly a group unable to protect itself through the operation of the normal political processes, but rather to regulate the institutional arrangements within which politics is conducted. The Shaw cases and Bush v. Gore raise quite similar issues of standing and remedies. Neither the Shaw cases nor Bush v. Gore fully answers the question of when, and why, courts should intervene in the deeply messy process of partisan politics. Instead, they manifest the Supreme Court's general disdain for the other branches and levels of government. Finally, each  adopts a distressingly narrow perspective within which to measure equality, a perspective that shortcircuits the normal, albeit potentially contentious and messy, process of self-government, leaves in its wake weakened institutions, and re-enlists equal protection in the service of less, rather than greater, equality and democracy.

My object in this Article is to discuss how talking about politics in market terms usefully illuminates problems in election law and how it obscures or distorts them. I look at three aspects of the electoral system: campaign finance, vote-buying, and apportionment. It turns out that many problems can be described in both market and nonmarket terms. And this is not simply an issue of nomenclature. It reflects a deeper truth: Politics is what Peggy Radin calls an incompletely commodified process. We hold both market and nonmarket understandings of what politics is about simultaneously. We are both drawn toward and resistant to understanding politics as simply another form of market.

Recent Supreme Court decisions construing the Eleventh and Fourteenth Amendments have raised important questions about the proper scope of Congress' regulatory and remedial powers. The main effect of the Court's decisions has been not to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young fiction or under Section 1983. The article's basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: The very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action. The article begins by identifying the distinction between Congress' Article I power to regulate state economic activity and its Section 5 power to abrogate state immunity from private lawsuits. A key consequence of the state's Eleventh Amendment immunity is that it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and Section 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief. Thus, the Court may soon confront the question whether to eliminate this right-remedy gap by constricting the scope of the rights it recognizes.

We want to suggest two ways in which people's experience with the Internet may affect how they think politics ought to be organized, and to consider the consequences for the political aspirations of minority communities. First, the notion of "virtual communities"--that is, communities that affiliate along nongeographic lines--may provide new support for alternatives to traditional geographic districting practices. ... At the same time, however, the Internet may give added strength to the appeal of "unmediated expression"--that is, the ability of individuals to express their preferences directly, rather than through institutional filters. This may further fuel pressures for direct, rather than representative, democracy. This possibility poses new threats to minority rights, which are often better protected through a less purely majoritarian, less populist process.

The 2001 Cutler Lecture. The first part of this Article explores the evolution of strict scrutiny in the Court's race-conscious redistricting cases. It shows how the Court has become less trigger-happy in invoking strict scrutiny in the first place: under the predominant purpose standard, not every use of race renders a plan constitutionally suspect. Moreover, the Court has recognized an important role for the political branches' judgments about how best to safeguard equality in its articulation of what constitutes a compelling state interest. ... The second part of this Article turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education.

Suggests that the relationship between equality and liberty, and more specifically, between the equal protection and due process clauses, is in fact bi-directional. ... The ideas of equality and liberty expressed in the equal protection and due process clauses each emerge from and reinforce the other. More concretely, this essay suggests that sometimes looking at an issue stereoscopically-through the lenses of both the due process clause and the equal protection clause-can have synergistic effects, producing results that neither clause might reach by itself.

Comments on Shane's Disappearing Democracy by contrasting substantive due process with reliance upon Section 2, the Equal Protection Clause, of the Fourteenth Amendment.

Foreword to symposium special issue. Considers the significance of Bush v. Gore, on December 12, 2000, as overshadowed by events of September 11, 2001.

The 2002 William Howard Taft lecture in Constitutional Law. Traces the history of how war influences the scope of the franchise in several related but distinct ways. Suggests a new legal avenue for attacking the lifetime disenfranchisement of former offenders.

Explores ways for the Court to retreat from entanglement altogether or to limit sharply the judicial role. Inspired by Bickel's The least dangerous branch: the Supreme Court at the bar of politics.

The David C. Baum Memorial Lecutre in Civil Rights and Civil Liberties. Describes how the Supreme Court has created a significant regulation-remedy gap by critically undercutting one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney general. Identifies a series of techniques the Court has used to strip private individuals of their ability to enforce civil rights laws. On the one hand, the Court has expanded the scope of sovereign immunity under a new "Eleventeenth" Amendment jurisprudence and the scope of compelled arbitration under the Federal Arbitration Act. On the other hand, the Court has contracted the availability of implied rights of action and attorney's fees. The overall effect of the Court's decisions is to severely restrict enforcement of basic antidiscrimination requirements.

Foreword to colloquium special issue on The Boundaries of Liberty after Lawrence v. Texas. Compares Lawrence to Loving v. Virginia. Lawrence resembles Loving in important ways. Like Loving, Lawrence marks a crystallization of doctrine. ... Just as  Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than in Loving. The Loving Court could have rested its decision entirely on the unconstitutionality of racial subordination without looking at all at the importance of marriage; by contrast, the Lawrence Court's discussion of liberty would be incoherent without some underlying commitment to equality among groups. The Warren Court often espoused "substantive" equal protection; the Lawrence Court attacked a "suspect" deprivation of liberty.Lawrence relates to Loving in yet another important way. Loving drew a clear distinction between rationality review and heightened scrutiny. Lawrence, by contrast, sidesteps this conventional doctrinal framework. ... Lawrence, however, does to due process analysis something very similar to what the Court's previous gay-rights decision, Romer v. Evans, did to equal protection analysis: it undermines the traditional tiers of scrutiny altogether.

This essay looks at the sentencing and punitive damages decisions in tandem.10 Here, as in several other areas, the Court's approaches to similar questions in the civil and criminal arenas take very different turns. Part I considers the Court's articulation of proportionality tests under the Eighth Amendment (for criminal sentences and fines) and the Due Process Clauses of the Fifth and Fourteenth Amendments (for punitive damages). The sentencing decisions have a head start of roughly a decade on the punitive damages ones. So it's interesting that, having sharply cut back on proportionality review of criminal sentences, the Court has identified a proportionality principle for criminal fines and enthusiastically embarked upon a similar enterprise with respect to punitive damages.

Applies [a taxonomy of meanings for the idea of 'judicial independence" that draws on the distinction between negative and positive concepts of liberty] to the litigation surrounding the presidential election of 2000. I show how that litigation implicated a number of aspects of judicial independence. With respect to the justices of the Florida Supreme Court, I consider questions such as the effect of their status as popularly elected officials, their position within the judicial hierarchy, and the peculiar relationship among the branches of government in presidential election cases. With respect to the members of the United States Supreme Court, I discuss the implications for judicial independence of potential personal stakes in the outcome of the litigation; individual justices' desire to influence the future composition of the Court; and the Court's freedom from direct political control. Finally, I explore ways in which the United States Supreme Court's decision in Bush v. Gore reflects two particularly aggressive and troubling assertions of judicial independence. First, the Court saw itself as free to determine the   meaning of Florida law for itself, without regard to the views of the Florida Supreme Court. Second, the per curiam opinion ignored pervasive constraints on individual judges' ability to pursue their own ends that precedent and stare decisis normally impose.

Discusses Ackerman and Ayres, Voting with dollars: a new paradigm for campaign finance (2002), and responds to their labelling Karlan as a "new hydraulicist".

This Article discusses some of the causes and consequences of the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive of the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes can be seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement. Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory-as I think we must- this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining.

We discuss how our understanding of Owen Fiss's Groups and the Equal Protection Clause has been influenced by our lives as voting rights litigators and scholars. Put simply, it has led us to decouple the question whether the Fourteenth and Fifteenth Amendments embody a group-disadvantaging principle from the process of constitutional adjudication. In a sense, we take our inspiration from the framers of the Reconstruction Amendments - mindful of a Supreme Court that had all too recently produced Dred Scott v. Sandford"' - who "were not content to leave the specification of protected rights to judicial decision.'" We see the choice between the two principles identified in Groups and the Equal Protection Clause not as a matter of top-down judicial interpretation, but as the result of bottom-up political negotiation. For us, the key question is not whether the Supreme Court should adopt a group-disadvantaging principle for assessing voting rights claims. Rather, it is whether the Court should reject that democratically arrived-at mediating principle in favor of a judicially imposed, highly individualistic interpretation of political equality.

In Democracy and Distrust, John Hart Ely articulated a 'participation-oriented, representation-reinforcing approach to judicial review' that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's 'Reapportionment Revolution' as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work-a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly-reveals an implicit tension within his approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as objects of judicial solicitude, rather than as efficacious political actors in their own right.

In Democracy and Distrust, John Hart Ely articulated a 'participation-oriented, representation-reinforcing approach to judicial review' that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's 'Reapportionment Revolution' as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work-a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly-reveals an implicit tension within his approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as objects of judicial solicitude, rather than as efficacious political actors in their own right.

Discusses two recent gerrymandering cases: Vieth v. Jubelirer,3 the Court confronted a blatant Republican gerrymander of Pennsylvania's congressional delegation; in Cox v. Larios, the Court reviewed an equally shameless effort to preordain Democratic dominance of Georgia's state legislature.

Foreword to volume from symposium in honor of John Hart Ely. Discusses four Supreme Court cases along the lines of Ely's  "intelligent unpacking" of Constitution texts.

Introduces symposium issue, discusses same-sex marriage as "moving" in two ways: the large number and increasing number of cases and the emotional aspect of these cases and the larger issue.

What accounts for the different treatment of bakers in New York and lumbermen in Arkansas? This essay addresses that question. Part I describes how Hodges arrived at the Supreme Court, how the parties presented their claims, and what the Supreme Court decided. Part II considers a broader issue: how Hodges relates to two independent doctrinal issues - the purpose of the Civil War Amendments and the concept of freedom of contract. There, I argue that Justice Brewer's opinions misread precedent in order to preserve a distinctive vision of the federal government. Far from misunderstanding the great cases that preceded Hodges, Justice Brewer comprehended them all too well.

The Robert L. Levine Distinguished Lecture. The process of constitutional litigation has itself become a medley of scraps and patches. The United States Supreme Court has pieced together a crazy quilt of constitutional doctrines that undercut its central goal of intelligently and efficiently refining broad constitutional commands. Constitutional law is primarily a way of regulating governments. With respect to those constitutional provisions that confer rights on specific individuals, one need not insist that these rights must inevitably trump countervailing governmental interests to recognize that they should generally be protected by more than mere "liability rules" under which the government is entitled to "destroy the initial entitlement if [it] is willing to pay an objectively determined value for it."' Put differently, the overarching purpose of constitutional law is to deter or prevent deprivations of individuals' rights, and not simply to induce the government to internalize their costs or to compensate individuals who suffer them after the fact.

This Article looks at the relationship between constitutional doctrine and institutional context by considering two recent cases in which law schools-perhaps the American institution most personally familiar to the current U.S. Supreme Court-appeared before the Court as litigants. In Grutter v. Bollinger, the Supreme Court upheld a law school's use of race-conscious affirmative action in its admission process. In Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), the Court rejected law schools' assertion of their right to exclude military recruiters. I suggest that both cases turned on the extrinsic function that law schools perform-namely, the production of a cadre of professional leaders-rather than their intrinsic function as educational institutions. And I also discuss the ways in which the Justices' familiarity with law schools may have influenced the reframing of constitutional doctrine.

The aim of this article is to describe the interplay between the existing constitutional and legal frameworks that govern the right to vote and the distinctive problems faced by individuals with cognitive impairments, particularly citizens suffering from age-related dementia. The number of such citizens is large now and is likely to grow as the baby boomers move into old age and life expectancies rise. The problem that these voters face is distinctive because, unlike the groups whose claims largely shaped the current legal framework, these voters' inability to participate is not primarily a function of state policies of affirmative disenfranchisement. Rather, their exclusion is the product of a combination of state omissions, private actions, and policies that, at least until now, have been largely outside the scope of federal regulation. Precisely because private actions play a particularly significant role in cognitively impaired individuals' exercise of the franchise, their participation implicates a set of constitutional concerns with the integrity of the electoral process that have largely been rejected when it comes to other groups.

How have recent changes in legal doctrine affected congressional authority? This question has occasioned a fair amount of recent commentary, much of it focused on the implications of the Rehnquist Court's "new federalism." I suggest ... that while much is taken, much abides: the preclearance regime continues to satisfy the Supreme Court's construction of congressional enforcement powers under the Reconstruction Amendments. And I go further to suggest that the Court's decisions under the Elections Clause of Article I, 4 and under the Equal Protection Clause with respect to political gerrymanders reinforce the Act's constitutionality.

Courts faced with questions about the law of democracy face a series of choices that sometimes pull in opposite directions. First, courts can invoke both anti-entrenchment and anti-discrimination rationales for judicial intervention. Second, courts can articulate constitutional constraints in terms of either individual rights or structural values. Third, courts can seek to enhance electoral competition or ensure post-election representation. This essay looks at three election law cases decided by the Roberts Court- Randall v. Sorrell, a challenge to a Vermont campaign finance statute; League of United Latin American Citizens v. Perry, a challenge to Texas's mid-decade congressional redistricting; and Purcell v. Gonzalez, a challenge to Arizona's new voter-identification requirements-to see how the Court negotiates these considerations.

Reviews Tyranny of the majority: fundamental fairness in representative democracy / Lani Guinier. (New York: Free Press, 1994.)

What are the responsibilities of government ethics officials? Dennis Thompson argues that such officials need to do more than oversee the paperwork associated with ethics legislation and the enforcement of specific standards and rules. They also have an "educational responsibility" in reminding public officials of their role in American democracy. Carrying out this "education in democracy" function is difficult, however, because of three paradoxes or misconceptions that plague the work of ethics officials. These include misconceptions surrounding the relative importance of ethical issues, the conflict between public and private ethical behavior, and the importance of appearances. Thompson discusses each of these paradoxes and the need to get beyond them. The major role for ethics officials, he concludes, is involvement in a continuous, positive, and visible effort to educate government employees about their democratic responsibilities.

The Keating Five case exemplifies a form of a political corruption that is increasingly common in contemporary politics but frequently neglected in contemporary political science. I focus on this form by developing a concept of mediated corruption, which links the acts of individual officials to effects on the democratic process. Unlike conventional corruption, mediated corruption does not require that the public official act with a corrupt motive or that either public officials or citizens receive improper benefits. The concept of mediated corruption provides not only a more coherent account of the case of the Keating Five but also a more fruitful way of reuniting the concepts of systematic corruption in traditional political theory with the concepts of individual corruption in contemporary social science.

"For a limited but significant class of public policies there is a fundamental conflict of values that is not readily resolvable and tha creates a continuing problem for government secrecy in a democracy. ... Some of the best reasons for secrecy rest on the very same democractic values that argue against secrecy."

Le français tel que parlent nos tirailleurs sénégalais.  Paris: L. Fournier, 1916. (from Gallica)