Volume 35, Issue 1

Volume 35, Number 1                                                                                                     Fall 2007

ARTICLES

PICS IN FOCUS: A MAJORITY OF THE SUPREME COURT REAFFIRMS THE CONSTITUTIONALITY OF RACE-CONSCIOUS SCHOOL INTEGRATION STRATEGIES
by Michael J. Kaufman

In Parents Involved in Community Schools (PICS) v. Seattle School Dist. No. 1, a majority of the Supreme Court reaffirmed the constitutionality of a school district’s use of race-conscious strategies designed to achieve the compelling benefits of a racially diverse student body. The Court’s decision turned on the question of whether the Equal Protection Clause bars a public school district from considering the race of children of the majority group as part of its effort to foster a racially integrated school. The answer not only hinges upon an understanding of the Supreme Court’s interpretations of the Equal Protection Clause in Brown v. Board of Education and its progeny; it also hinges upon the very nature of the principle of equality itself. A majority of the Court in PICS actually rejects a view of the Equal Protection Clause that would treat the African-American student in Brown and the white student in PICS as “like” cases. Indeed, a careful analysis of the opinions in PICS reveals that a majority of the Supreme Court has rejected any view of the Equal Protection Clause and of the principle of equality that is “color-blind.” Instead, a majority of the Court seriously questions whether governmental actions that recognize and remediate real racial differences in educational opportunities should be subjected to strict scrutiny. Ultimately, the majority seems to have recognized the authentic principle of equality within the Equal Protection Clause. In many cases, African-American children in fact are not like white school children in their educational opportunities. A school district’s program that recognizes those differences and treats African-American schoolchildren differently from white school children in order to achieve the goal of ultimately eradicating those differences is true to the principle of equality.

MARBURY IN MEXICO: JUDICIAL REVIEW’S PRECOCIOUS SOUTHERN MIGRATION
by M.C.Mirow

Scholars agree that the United States Supreme Court did not “discover” the general judicial review aspects of Marbury v. Madison (1803) until nearly a century later in 1895. This article reveals that the Mexican Supreme Court, relying heavily on U.S. constitutional sources and actually quoting Marbury, discovered this aspect of the case more than a dozen years earlier than the United States Supreme Court. In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through “constitutional migration,” novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy surrounding the Court’s recent use of foreign sources. In discussing Vallarta’s constitutional thought, the work makes contributions to the terminology of constitutional migration, to the historiography of Mexican constitutionalism, and to questions of common law and civil law approaches to constitutional decision making. It concludes that Mexico’s precocious use of Marbury profoundly affected Mexican legal development and may serve as an example of the usefulness of comparative constitutionalism.

NOTES

by Robin Huffman

The 2005 amendments to the Bankruptcy code, known collectively as the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), marked a sweeping overhaul of the bankruptcy system in the United States, and also sparked considerable litigation. Some of the most significant litigation arising out of BAPCPA has come from attorneys arguing that portions of BAPCPA violate the First Amendment. The free speech challenges arise from portions of the act governing debt relief agencies, a new designation under BAPCPA. If courts determine that attorneys fall within the meaning of debt relief agencies, attorneys argue that the provisions of BAPCPA constitute an unconstitutional restriction on their speech. Several courts have decided the issue, with divided results, leaving attorneys unsure of their rights and responsibilities under BAPCPA. This note argues that attorneys do fall within the meaning of debt relief agencies, and that the BAPCPA provisions violate attorneys' free speech rights by prohibiting them from advising their clients to take certain lawful, prudent actions.

THE STATE SECRETS PRIVILEGE: WHAT’S WRONG WITH IT, HOW IT GOT THAT WAY, AND HOW THE COURTS CAN FIX IT
by Christopher D. Yamaoka

The state secrets privilege shields evidence from discovery at trial where disclosure of the evidence would threaten national security. It is an important privilege, allowing the government to protect potentially dangerous information from being exposed by way of litigation. But it is also a powerful privilege; when accepted, it often leads to outright dismissal of the case. Given its nuclear effect, expansion of the doctrine beyond its legitimate bounds is constitutionally troubling. And indeed, over the last half century, the privilege has expanded far beyond its original form: courts have grown increasingly likely to use it to dismiss litigation before the merits and increasingly deferential to executive assertions of the privilege.  How has the privilege grown so powerful? What were the critical missteps that led to a judicial approach so permissive that, when a federal judge dared to reject a state secrets assertion in the summer of 2006, it was considered a “rare act of constitutional independence”? First, two key evolutionary steps – a misread citation and a liberal construction of the phrase “very subject matter” – created a privilege under which courts are too quick to dismiss litigation before the merits. Second, a flawed opinion in the first Supreme Court case recognizing the privilege led to an overly deferential judicial approach to handling claims of the privilege. The modest solution of ex parte in camera review of the allegedly dangerous evidence accords with the Court’s jurisprudence on privileges in general , and with the legitimate purposes of the state secrets privilege itself.