VOLUME 111 FIRST IMPRESSIONS
COMMENTARIES

What Can the Brothers Malone Teach Us About Fisher v. University of Texas?

Charlie Gerstein

In 1975, the Brothers Malone took the entrance exam for the Boston Fire Department. At the time, the Department was under a court-ordered affirmative action plan: it divided its pool of test-takers into groups of black and white applicants and gave substantial preference to those in the former. The Brothers listed themselves as white and didn't make the cut. In 1977, the Brothers Malone again took the entrance exam for the Boston Fire department, this time listing themselves as black. The Brothers became firemen. Within a few years, someone at the Fire Department grew suspicious of the Malones. An investigation ensued. The Department determined that the Brothers had falsified their applications. Eventually a Suffolk County Judge was forced to decide whether the Malones were black or white. Judge Herbert Wilkins found them white.

This Essay argues that squeamishness about deciding people's race can explain some otherwise baffling trends in affirmative action jurisprudence. The Supreme Court's fear of letting government agencies decide, as a factual matter, the race of individual students may explain its odd and seemingly inconsistent reluctance to use race as a factor in admissions. Part I discusses various legal strategies for adjudicating race and why we may be uncomfortable with them. Part II argues that Gratz v. Bollinger and Grutter v. Bollinger can be explained through the lens of the Malones, using the Fifth Circuit's reading in Fisher v. The University of Texas, the challenge to Texas's affirmative action program heading to the Supreme Court this term. Part III proposes a new reading of Grutter — arguing that Grutter serves to protect a school's right to select students on nonracial grounds — and suggests some implications for the program at issue in Fisher.

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Who Is Afraid Of Perpetual Trusts?

Bridget J. Crawford
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The Volcker Rule's Hedging Exemption

Spencer A. Winters
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Foreign Affairs Federalism and the Limits on Executive Power

Zachary D. Clopton
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Erratum

Fred R. Shapiro & Michelle Pearse
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Public Performance Rights in the Digital Age: Fixing the Licensing Problem

G.S. Hans
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Keeping Up with the Joneses: Making Sure Your History is Just as Wrong as Everyone Else’s

Brian Sawers
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Doing Affirmative Action

Stephen Clowney
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Adoptive Couple v. Baby Girl: Two-and-a-Half Ways To Destroy Indian Law

Marcia Zug
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What's In A Name? A Brief Study of Legal Aptonyms

Aaron Zelinsky
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RESPONSES

The Rule of Law and the Perils of Precedent

Randy J. Kozel

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over time.

Notwithstanding pervasive disagreement over the application of stare decisis to particular disputes, the doctrine is well established in American jurisprudence. Indeed, the Supreme Court has gone so far as to describe stare decisis as indispensable to the rule of law. But as Jeremy Waldron skillfully reminds us, justifying the doctrine requires more than platitudes. Even a proposition as fundamental and seemingly intuitive as the ability of stare decisis to promote the rule of law conceals a considerable amount of analytical nuance. Professor Waldron concentrates on developing what we might think of as the rule-of-law case for precedent. Central to his project is the recognition that rule-of-law benefits arise at several distinct points along the path from initial ruling to subsequent application. The touchstone is the principle of "generality," pursuant to which individual jurists subjugate their personal beliefs to the vision of a unified court working across space and time to fashion generally applicable norms.

In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive fidelity to flawed precedents would be cause for concern. That rule-of-law ambivalence, I will suggest, should be brought to bear in calibrating the strength of deference that judicial precedents receive.

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