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  • Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process

    Resnik, Judith; Hershkoff, Helen (SMU Law Review, 2023)
    "Due process," unmodified by the words "substantive" or "procedural," has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment. Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the "ability to pay." Judges also assessed the "fairness" of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the "fairness" of state courts' exercise of jurisdiction over absent litigants and application of their law to out-of-state parties. Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally "fair." Due process has thus been adaptive, pluralistic, and Janusfaced--looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws. The Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote.
  • Valuing ESG

    Listokin, Yair; Kovvali, Aneil (Brigham Young University Law Review, 2024)
    Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once non-pecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at $100 in its charter. The company would use that valuation as a metric in its assessment of projects, pursuing only those projects that would remain "profitable" after adjusting its forecasted cashflows by subtracting $100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than $100 per ton of carbon saved. Similarly, the fund might pick stocks for investment based on potential profitability at a carbon price of $100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing.
  • The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation Reva B. Siegel

    Siegel, Reva B. (The Yale Law Journal, 2023)
    In Dobbs v. Jackson Women's Health Organization, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs-history that ties Dobbs's history-and-tradition method to the defense of segregation.
  • The 21st Century National Security Constitution

    Hongju Koh, Harold (THE GEORGE WASHINGTON LAW REVIEW, 2023)
    Even as the Biden Administration’s foreign policy unfolds, in 21st Century practice, foreign relations law seems to have largely become national security law. Virtually all foreign affairs issues have been reframed into national security terms. And because so much of foreign affairs law seems to have become justification for unilateral exercises of executive power, at times it seems almost like not law at all. This Keynote Address, based on a forthcoming book, describes the synergistic dysfunction among our national security institutions that has fostered these trends, explains why the major academic debates over foreign relations law have missed this most urgent issue, and suggests ways to slow the steady march toward executive unilateralism.
  • GUIDED BY HISTORY: PROTECTING THE PUBLIC SPHERE FROM WEAPONS THREATS UNDER BRUEN

    Siegel, Reva B.; Blocher, Joseph (New York University law review, 2023)
    Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Essay we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive-place regulations Bruen authorizes with examples spanning several centuries, and close by demonstrating—contrary to recent court decisions— that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen. Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms. At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century. We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi.
  • JUSTICE ALITO ON CRIMINAL LAW

    Stith, Kate (Harvard Journal of Law & Public Policy, 2023)
    The article focuses on U.S. Supreme Court Justice Samuel Alito's jurisprudence dedicated to the criminal law. Topics discussed include opinion of Justice Alito on categorical approach, one aspect of federal criminal law, insight on the case, Johnson v. United States, wherein Justice Alito's unease with the categorical approach became far more pronounced by 2010, and examples from cases in which Justice Alito had previously opined.
  • TEXTUALISM'S DEFINING MOMENT

    ESKRIDGE JR., WILLIAM N.; Slocum, Brian G; Tobia, Kevin (Columbia Law Review, 2023)
    The article examines the complexities of modern textualism, challenging the simplicity and objectivity promised by the interpretive theory. It identifies twelve categories of doctrinal and theoretical choices that often divide modern textualists, causing internal divisions within the Supreme Court. It further suggest that textualists need to better define their methodology, eliminating activist or idiosyncratic doctrines.
  • THE APA AS A SUPER-STATUTE: DEEP COMPROMISE AND JUDICIAL REVIEW OF NOTICE-AND-COMMENT RULEMAKING

    ESKRIDGE JR., WILLIAM N. (Notre Dame L. Rev, 2023)
    The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted an even more aggressive judicial role to limit agency rulemaking that has large-scale social or economic impact. As an initial matter, this Article responds to the methodological premises of some of the APA originalists. They tend to approach the APA as through a time machine and seek the answers to today’s issues that they say are embedded in the 1946 law. APA originalists also tend to view the APA as a “shallow compromise,” enacted because the exhausted stakeholders wanted closure, and seek to limit administrative law to what they consider the narrow parameters of that compromise. This Article contests these premises. The APA was what political philosophers call a “deep compromise,” where stakeholders’ positions evolved in the course of the long debate and reached a creative resolution of governance issues that has proven to be lasting. Original public meaning for super-statutes such as this one ought to focus on the law's important concepts, which in this case are rooted in democratic theory. Even viewed as a shallow compromise through the mechanism of a time machine, the APA presumes the availability of judicial review for agency rules, encourages a hard look at fishy agency reasoning, and tolerates or even valorizes a deferential attitude toward agency interpretations under many circumstances. Understood as a deep compromise whereby conservatives accepted the legitimacy of the modern administrative state and liberals accepted procedural guardrails protecting against secret or arbitrary agency rules, the APA supports a presumption of judicial review, hard-look examination of agency reasoning, and deferential consideration of agency reasoning. The doctrine that is most offensive to a serious APA originalism—whether the law is treated as a shallow or a deep compromise—is the Roberts Court’s creation of a “major questions doctrine” that antidefers to agency rulemaking having large social or economic effects, even when the agency action is authorized by the plain meaning of statutes broadly delegating rulemaking authority.
  • Free Speech Versus the First Amendment

    Balkin, Jack M. (UCLA Law Review, 2023)
    The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of free speech. Today, speech is regulated not only by territorial governments but also by the owners of digital infrastructure. This has made First Amendment law less central and the private governance of speech more central. When the free speech interests of digital companies and their end users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end users. In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation. They will offer legal theories designed to transform conflicts over online speech from questions of First Amendment law into technical, statutory, and administrative questions. In the United States, at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment less important to online expression. The speed and scale of digital speech have transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms. Algorithmic decision-making and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end users. Conceived this way, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit. Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and the proliferation of online propaganda and conspiracy theories have put increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. Th e gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider. In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe. Th e digital age has also undermined many professions and institutions for producing and disseminating knowledge. Th ese professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fi x them. Instead, one must revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination appropriate to the digital age. Th at task will take many years to accomplish.
  • FREDERICK DOUGLASS AS CONSTITUTIONALIST

    Balkin, Jack M.; LEVINSON, SANFORD (Maryland Law Review, 2023)
    Court Cases: In re Anastaplo Dred Scott v. Sandford Konigsberg v. State Bar
  • Rise of the Zombies: The Significance of Venture Capital Investments That Are Not Profitable

    Riethmueller, Sven (Houston Business and Tax Law Journal, 2021)
    This article proposes an explanation for the pervasiveness of convertible preferred stock as the security of choice for venture capital funds when investing in entrepreneurial ventures.
  • THROUGH THIN AND THICK: COMMENTS

    Markovits, Daniel (Connecticut Journal of International Law, 2023)
  • ERISA'S ROLE IN THE DEMISE OF DEFINED BENEFIT PENSION PLANS IN THE UNITED STATES

    Langbein, John (Elder Law Journal, 2023)
    In the decade or so following World War II, employer-provided pension plans became common in private-sector employment in the United States. The prevalent type was the defined benefit (DB) plan, which typically provides the employee and his or her spouse with a lifetime retirement income, paid monthly, based upon a formula that commonly takes account of the employee's compensation and length of service with the employer. Another type, the defined contribution (DC) plan, was also in use, mostly as a second and supplementary plan for highly compensated employees. A DC plan is a savings program, often tax-favored, which provides an account for each participating employee, funded mainly by salary reduction contributions that the employee authorizes together with contributions from the employer and the investment experience on the account. Subject to age and other criteria required under the Internal Revenue Code and the plan's terms, the employee and spouse decide when and in what amounts to draw down on the account in retirement. If at the death of the survivor of them the DC account contains undistributed funds, that balance will pass to heirs or other beneficiaries. Into the early 1980s, DB plans covered about 85 percent of private-sector employees who had any pension coverage. In the years since, employers have retreated from offering DB plans, by terminating existing plans or closing ("freezing") them to new participants, while also ceasing to establish new DB plans. By 2003, only 33 percent of large employers provided DB plans. By 2015, only 3 percent of Fortune 500 employers offered traditional DB plans to newly hired employees. The "de-risking" wave, discussed below in Part III, is further diminishing the extent of the DB system. This article explores the question of what has caused this spectacular abandonment. The conventional understanding, summarized in Part II, attributes the demise of the DB system to large changes in economic conditions and employment patterns, together with the emergence of a viable DC alternative, the 401(k) plan. This article contends that the conventional account is incomplete, because it neglects the role of ERISA, the 1974 federal pension regulatory statute, in making DB plans too burdensome for employers to sustain. Part III discusses features of ERISA that have deterred employers from establishing or maintaining DB plans. Together with the changes reviewed in Part II, ERISA--although meant to promote DB plans--has had the effect of destroying the DB system in the United States.
  • PLAINTIFFS' PROCESS: CIVIL PROCEDURE, MDL, AND A DAY IN COURT

    Gluck, Abbe R.; Chamblee Burch, Elizabeth (Review of Litigation;, 2023)
    The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.
  • Proximate Cause Explained: An Essay in Experimental Jurisprudence

    Shapiro, Scott; Knobe, Joshua (University of Chicago Law Review, 2021)
    One of the oldest debates in American jurisprudence concerns the concept of "proximate cause." According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of "cause." The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called "responsible cause." Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law--one which combines the attractive features of both formalism and realism without accepting their implausible consequences. In addition to providing a model for interpreting the case law of proximate cause, this Article also introduces a new way of doing legal theory--a method we call "experimental jurisprudence." Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.
  • THE SUPREME COURT 2020 TERM FOREWORD: REGIME CHANGE

    Rodríguez, Cristina M (Harvard Law Review, 2021)
    In the article, the author discusses the need to use power to implement regime change in governance, particularly in the U.S. Supreme Court. Topics include the importance of legal innovations to establish a new political order, the need for extended engagement with the relationship between law and politics, and the role of executive governance in achieving the goals of democratic politics.
  • Representing What? Gender, Race, Class, and the Struggle for the Identity and the Legitimacy of Courts

    Resnik, Judith (Law & Ethics of Human Rights, 2021)
    In 1935, when the U.S. Supreme Court's new building opened and displayed the phrase "Equal Justice Under Law," racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court's inscription has become its motto, read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. The judiciary "looks" somewhat different than it did and, in a sense, has become more "representative" of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the "difference that difference makes" requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation ("equal justice under law") remains elusive, while the "justice gap" (shorthand for the lack of sufficient governmental help for under-resourced litigants) is pervasive. Worse yet, in some jurisdictions, courts have served as "revenue centers," using court-imposed assessments as income. Failure to pay "legal financial obligations" can result in suspension of driver's licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.
  • NIFLA and the Construction of Compelled Speech Doctrine

    Post, Robert (Indiana Law Journal, 2022)
    First Amendment doctrine disfavoring compelled speech originated in 1943 in West Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court's decision in Barnette, but the Court's recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances "contentbased" regulation requiring heightened judicial scrutiny. Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of "compelled speech" may itself be confused insofar as it imagines that all legal obligations to communicate are equally disfavored under the Constitution. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context. Courts must learn to read the constitutional geography implicit in distinct social landscapes. This Article offers some hints for how this might be done. Applying these insights to NIFLA, the Article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified.
  • FRAUD IN A LAND OF PLENTY

    Macey, Jonathan R. (Northwestern University Law Review, 2023)
    This Essay discusses the regulation of fraud in a developed economy and offers some explanations for why fraud appears to be on the increase. Ironically, regulation designed to combat fraud can actually increase fraud by attracting economic activity to fraud-ridden industries. In other words, regulation can create problems of its own by fostering the false perception that fraud is being addressed even when it is not. This analysis is relevant in the context of the current surge in sentiment to regulate cryptocurrencies in the wake of the FTX and Sam Bankman-Fried debacle. Such regulation threatens to attract more resources to cryptocurrency trading, which is a dubious proposition in light of the fact that cryptocurrencies produce little social value and merely transfer wealth rather than create it. The Essay discusses some of the reasons why fraud may be on the increase. First, strong market forces aimed at reducing managerial agency costs have had the unintended consequence of increasing the incentives of top corporate managers to commit fraud. The market forces both richly reward managers for generating strong returns for shareholders and severely punish managers for failing to reach investors' expectations regarding corporate performance. While these rich rewards and strong punishments serve the interests of shareholders and society, they also enhance executives' incentives to commit fraud. Another factor in the increase in fraud in financial markets has been the expansion of the concept of fraud. Historically, the term fraud was used to describe conduct that was truly egregious and involved purposeful deceit designed to provide the perpetrator with unlawful gains. As shown here, however, in the financial context the concept of fraud has been expanded to include behavior that is entirely inadvertent and benign. The expansion of the concept of fraud threatens to increase the incidence of traditional fraud by depriving the term "fraud" of its historic capacity for shaming because the prospect of being shamed is a significant deterrent to committing fraud.
  • The Discriminatory Purpose of the 1994 Crime Bill

    Hinton, Elizabeth; Biale, Noam; Ross, Elizabeth (Harvard Law & Policy Review, 2021)
    Harsh criminal sentencing laws enacted in the 1980s and 1990s have received renewed attention through a confluence of two seemingly contradictory events: an awakening to racial justice concerns through protests against the police killings of George Floyd and Breonna Taylor (among many others), and the election of President Joseph R. Biden, Jr., who, as a senator, was one of the chief architects of policies that fueled mass incarceration and exacerbated racial disparity in the criminal legal system. Historians in particular have begun to study declassified documents and newly available archival evidence that provide critical insight into the behind-the-scenes deal-making and legislative intent that led to the crime control policies that emerged at the federal level since the 1960s. Specifically, historical research indicates that federal lawmakers were well aware of the racially disparate impact of mandatory minimum sentencing schemes and the death penalty, yet chose to double down on those policies and reject alternative proposals that would have made the application of criminal law more equitable. This new frontier of historical research is not merely of academic interest; it has important implications for constitutional scholars and defense attorneys who can draw on these findings to challenge criminal statutes under the Equal Protection Clause. This Article highlights the power of collaboration between historians and legal scholars and practitioners who wish to train this new historical analysis on the modes and means by which our criminal legal system reinforces racial inequality. We focus our approach through the lens of a relatively obscure provision of the Violent Crime Control and Law Enforcement Act of 1994, which imposed a one-year mandatory minimum for distributing narcotics within 1,000 feet of a public housing project. We examine the barriers to challenging such a statute under the Equal Protection Clause based on current Supreme Court precedent and circuit caselaw. We suggest a jurisprudential avenue for renewed equal protection challenges, namely, supplying evidence that Congress adhered to particular policies with full knowledge of their discriminatory impact. We examine the disparate enforcement of the public housing provision and its discriminatory purpose, as informed by newly developed historical evidence about the 1994 Crime Bill. Finally, we consider the lessons criminal defense attorneys and policymakers may learn from our example. We argue that a nuanced understanding of the true history of the war on crime is essential if President Biden and those in his administration who played instrumental roles in creating these discriminatory policies are serious about responding to the demand from the streets to dismantle them.

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