Volume 112 FIRST IMPRESSIONS

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Commentaries

Cultivating Inclusion

Patrick S. Shin & Mitu Gulati

Twenty-five years ago, law schools were in the developing stages of a pitched battle for the future of legal education and academia. Faculties fought over the tenure cases of minority candidates, revealing deep divisions within legal academia on questions about the urgency of racial diversification and the merits of critical race scholarship. The students in charge of the law reviews where this scholarship was emerging engaged in their own battles, arguing over the use of affirmative action in the selection of law review editors and then, as neophyte editors, staking their own positions in the "What is legal scholarship?" debates. As students during this period, we could not avoid reflecting on our own attitudes toward the relevance of race in the legal profession and on the value of legal scholarship about race.

Looking back at that time from the perspective of our current positions, we are renewed in our admiration of and appreciation for Professor Matsuda's scholarship. She was a central figure in the then-emergent critical race movement, and her work was a focus in discussions about the field. Through her fearless and unwavering writings, Matsuda helped spur changes in attitude and perspective within legal academia that prepared the way for other scholars of color. Equal to her impact within the academy was the inspiration she provided to a generation of prospective Asian American legal scholars. In her example, we saw the possibility that our voices might be heard inside the enclave of legal academia.

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Aftermarketfailure: Windows XP's End of Support

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

Berta Esperanza Hernández-Truyol
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Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

Shannon Gilreath
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Power Games

Aneil Kovvali
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Tribal Disruption and Indian Claims

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo
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Let's Get Married: An Essay in Honor of Mari Matsuda

Richard Delgado
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Introduction by the Editors

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Friendship Treaties ≠ Judgment Treaties

John F. Coyle
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Are Cryptocurrencies Super Tax Havens?

Omri Marian
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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.

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The Rule of Law and the Perils of Precedent

Randy J. Kozel
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Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

Gary Lawson
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Commerce in the Commerce Clause: A Response to Jack Balkin

Robert G. Natelson & David Kopel
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Response to "Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges"

Bidish J. Sarma
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Freedom and Equality on the Installment Plan

Michael Halley
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Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
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Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
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Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
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Another Theory of Insufficient Activity Levels

Mark Grady
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ABOUT FIRST IMPRESSIONS
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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.

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& Other Current Events

Cultivating Inclusion

Twenty-five years ago, law schools were in the developing stages of a pitched battle for the future of legal...

Aftermarketfailure: Windows XP's End of Support

"After 12 years, support for Windows XP will end on April 8, 2014." So proclaims a Microsoft website with...

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

Globally speaking, international law and the vast majority of domestic legal systems strive to protect...

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

I am thrilled to be part of this commemoration of the twenty-fifth anniversary of Professor Matsuda's...

House Swaps: A Strategic Bankruptcy Solution to the Foreclosure Crisis

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans...