Volume 112 FIRST IMPRESSIONS

The Editor of First Impressions welcomes your comments and responses.

First Impressions recommends using Adobe Acrobat or Adobe Reader to read PDFs.

Commentaries

Judicial Diversity After Shelby County v. Holder

William Roth

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling opportunity to assess the VRA's ongoing role in the fight to diversify state benches.

  READ MORE    //  VIEW PDF

The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

Ian Bartrum
READ MORE    //  VIEW PDF

Lost in Translation: The Accidental Origins of Bond v. United States

Kevin L. Cope
READ MORE    //  VIEW PDF

The Tools of Political Dissent: A First Amendment Guide to Gun Registries

Thomas E. Kadri
READ MORE    //  VIEW PDF

Cultivating Inclusion

Patrick S. Shin & Mitu Gulati
READ MORE    //  VIEW PDF

Aftermarketfailure: Windows XP's End of Support

Andrew Tutt
READ MORE    //  VIEW PDF

Globally Speaking—Honoring the Victims' Stories: Matsuda's Human Rights Praxis

Berta Esperanza Hernández-Truyol
READ MORE    //  VIEW PDF

Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

Shannon Gilreath
READ MORE    //  VIEW PDF

Power Games

Aneil Kovvali
READ MORE    //  VIEW PDF

Tribal Disruption and Indian Claims

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo
READ MORE    //  VIEW PDF
RESPONSES

What Does Social Equality Require of Employers? A Response to Professor Bagenstos

Brishen Rogers

Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some jurisdictional boundaries. Given its decentralized origins, can individual employment law even have a normative core?

Yes it can, or so argues Professor Samuel Bagenstos. Just as tort theorists have long sought to render the field coherent by mapping principles at work across categories of tort cases, Bagenstos identifies a rough order within this apparent doctrinal mishmash. Individual employment law, he argues, characteristically "seeks to ensure that hierarchies of work do not harden into class-type hierarchies of person" or into more widespread relationships of "domination and subordination." This ideal of "social equality" renders certain doctrines coherent and explains longstanding critiques of other doctrines, and it does so better than theories based on ensuring efficiency or rectifying unequal bargaining power. Bagenstos also roots this argument in first principles of social justice, demonstrating an overlapping consensus among major strands of contemporary political theory to the effect that a just society will eliminate persistent hierarchies of status.

I strongly agree with this argument. I also believe that Bagenstos's article helps answer a vexing question within employment law: When are employer duties justified even if they reduce efficiency and do not target immoral behavior by employers? But I would emphasize different aspects of social equality in certain instances, and I am not optimistic that social egalitarian ideals will strongly influence courts in the run of cases. In this brief Essay, I take up these matters in turn.

  READ MORE    //  VIEW PDF

The Rule of Law and the Perils of Precedent

Randy J. Kozel
READ MORE    //  VIEW PDF

Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

Gary Lawson
READ MORE    //  VIEW PDF

Commerce in the Commerce Clause: A Response to Jack Balkin

Robert G. Natelson & David Kopel
READ MORE    //  VIEW PDF

Response to "Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges"

Bidish J. Sarma
READ MORE    //  VIEW PDF

Freedom and Equality on the Installment Plan

Michael Halley
READ MORE    //  VIEW PDF

Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
READ MORE    //  VIEW PDF

Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
READ MORE    //  VIEW PDF

Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
READ MORE    //  VIEW PDF

Another Theory of Insufficient Activity Levels

Mark Grady
READ MORE    //  VIEW PDF
ABOUT FIRST IMPRESSIONS
An Online Companion

First Impressions, an online companion to the Michigan Law Review, publishes op-ed length articles by academics, judges, and practitioners in an online symposium format. This extension of our printed pages facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues.

BY VOLUME
Volume Archive
BY DATE
Monthly Archive
TOPICS
Tagged Posts

& Other Current Events

Judicial Diversity After Shelby County v. Holder

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance...

Fall Submission Season

MLR’s Articles Office will open its fall submission season on Monday, August 18!  The Articles...

The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional...

Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education

The United States has exhibited a strong commitment to public education throughout its history. The local...

War Is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying...