From Shaw v. Reno to Miller v. Johnson: Minority Representation and State Compliance with the Voting Rights Act

In 1994, four federal district courts applied the tests setforth in Shaw v. Reno in order to rule on the constitutionalityof congressional districting schemes that were comprised, inpart, of "majority-minority" districts. The difference of opinionthat arose among the lower courts indicated that Shaw had setforth unclear standards for determining (I) what role the federalcourts should play in monitoring state redistricting practices,and (2) whether a remedial redistricting plan is a racial gerrymander.Also, the disagreements exposed the weakness of some of theassumptions on which voting rights analysis is grounded. InMiller v. Johnson, the Supreme Court sought to address the lowercourts' concerns. Nonetheless, voting rights jurisprudence remainsunclear regarding (I) what constitutes a valid claim of vote-dilution,and (2) whether voting should be perceived as a group or individualright.     

Rebuttal versus Unmasking: Legal Strategy in R. v. Zundel

Conventional scholarly wisdom has it that most Italian Americans in the United States were loyal supporters of the policies of Fascism in the inter-war years but eventually rejected the antisemitic measures that Benito Mussolini's regime adopted in their ancestral country in 1938. Contrary to such an interpretation, Luconi argues that many Italian Americans themselves held antisemitic attitudes and, therefore, did not distance themselves from Fascism after Mussolini launched his campaign against Italian Jews. He also contends that these attitudes resulted less from an ideological commitment to Fascism than from both the strained relations between Italian Americans and Jewish Americans, and the antisemitic climate of opinion that characterized American society in the 1930s. Italian Americans and Jews were partners in the labour movement and the Democratic Party. Yet the former resented the latter's distrust in Italian Americans' labour militancy, as well as the earlier rise of Jews in the hierarchies of the unions and the Democratic Party. Furthermore, Italian Americans and Jews competed for jobs, political patronage, cheap housing and relief benefits, especially during the Depression years. Such ethnic rivalries and the appeal of right-wing organizations to Italian Americans contributed to make the latter prone to antisemitism. As a result, few Americans of Italian descent came out against the racial policy of the Fascist regime.     

The Evolving Right to Travel: Saenz v. Roe

Although the 1996 federal welfare-reform law shifted more authorityfor welfare policy to the states-including authority to providelower benefits to new state-residents than to longer term residents-theU. S. Supreme Court's decision in Saenz v. Roe delineates alimit on that authority, namely, that states cannot discriminateagainst citizens based on their length of in-state residency.The Court's reliance on the Fourteenth Amendment's privilegesor immunities clause in Saenz, while surprising after its longdormancy, is not a departure from prior precedent. What remainsto be seen is whether states will attempt to avoid the decision'simplications by adopting new variations on residency laws, andwhether the revival of the privileges or immunities clause willlead to a rearticulalion of individual civil rights, based ona new understanding of national citizenship.     

The Limits of Judicial Desegregation Remedies after Missouri v. Jenkins

How far can federal courts go to remedy unconstitutional segregation?In Missouri v. Jenkins in 1990, the U. S. Supreme Court appearedto add new taxing powers to the existing tools already availableto the judiciary. By a 5–4 vote, the Court affirmed court-orderedtaxation to fund an elaborate and expensive desegregation planfor the Kansas City, Missouri, School District. This articleexamines that decision, how it developed, what it said, howit was received, and, most important, what its long-term significancemay be. We argue that the "new" judicial taxing authority sanctionedin the decision may not prove nearly as important as at firstanticipated In the long run, Missouri v. Jenkins may prove mostsignificant for the questions about desegregation remedies raisedby Justice Anthony Kennedy in a dissenting opinion. Those questionscould presage a more skeptical Court outlook on substantiveschool desegregation remedies, at least where those remediescall for additional public funding, as well as greater Courtdeference to the outcomes of state-local political processes.     

FCC v. The States: Who Shall Regulate Intrastate Telecommunications?

The 1934 Communications Act established a dual system of federaland State telecommunications regulation. The act gave the FederalCommunications Commission (FCC) authority to regulate interstateand foreign telecommunications but not intrastate communications,a market reserved for the states. As part of its move to deregulatethe telecommunications market in the 1970s, the FCC sought toextend its jurisdiction by preempting state regulatory authorityover telecommunications activities traditionally consideredintrastate. In 1986, however, the U.S. Supreme Court, in itsdecision in Louisiana Public Service, restricted federal preemptionof state laws and reinforced the dual regulatory system. Withthe break-up of AT&T, the FCC has renewed its preemptionactivities, claiming that the preemption is necessary in orderto foster an efficient nationwide telecommunications system.Several cases now pending in federal courts will test the breadthand depth of the Supreme Court's holding in Louisiana PublicService, and thereby, the future of the dual regulatory system.     

Minority Set-Aside Programs in the States After City of Richmond v. J. A. Croson Co.

In a series of decisions handed down during the 1988–1989term, the U.S. Supreme Court sent clear signals that its equalprotection analysis and affirmative action jurisprudence areundergoing reexamination. The most important affirmative actiondecision during the term was City of Richmond v. J. A. CrosonCo. The Court ruled that Richmond's minority business enterpriseprogram, which set aside 30 percent of the dollar amount ofgovernment construction contracts for minority-owned firms,violated the Fourteenth Amendment. In the wake of Croson, federaland state courts have considered other cases involving set-asideprograms, while a number of other programs have been abandoned,placed under evaluation, or modified to meet the guidelineslaid down by the Court.     

Continuity or Change in Interstate Extradition? Assessing Puerto Rico v. Branstad

Interstate extradition law would appear radically altered bythe 1987 U.S. Supreme Court decision in Puerto Rico v. Branstad,overturning a precedent established in Kentucky v. Dennison126 years earlier that extradition could not be legally compelledby the federal government. Dennison, however, is more complexthan is commonly believed, and the demise of one of Dennison'sconclusions does not signal a major overhaul of the SupremeCourt's treatment of extradition. Rather, the Court's decisionshave adhered closely to the original intent of the Constitution'sextradition clause. The part of Dennison overturned was thereforenoteworthy as an exception to the general thrust of the Court'streatment of extradition. How then did Dennison's bar of legallycompelled extradition survive so long when the theory of federalismsupporting the decision had been repudiated long before it wasreversed? This article explores this question and directs attentionto the consequences of Branstad for extradition. Despite theapparent clarity of Branstad, a survey of state extraditionofficers reveals lingering confusion over extradition law.     

Qarase v. Bainimarama: the End of Democratic Rule in Fiji?

The judgment in Qarase v. Bainimarama provided a legal basis for the 2006 military coup in Fiji and stated that the President was entitled to grant authority to the military to act outside of the powers prescribed by the written Constitution. According to the ruling, the Royal Prerogative powers that remained in government following British rule could be utilised by the President at any time that he considered it necessary. This paper explores the rationale for that judgment and the role that Royal Prerogative powers may play in the governance of countries that were previously subject to British rule. It further considers the impact of this judgment upon democracy in Fiji and the future protection of human rights for its citizens.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

Playground or Church? Implications for Public Administration from Trinity Lutheran v. Comer

The roots of public administration are in the fields of management, political science, and the law. The law is underrepresented in the literature and is not as well understood by nonlawyer practitioners, yet it increasingly enables, constrains, and prescribes government action. In 2017, the U.S. Supreme Court ruled on a case involving whether a government grant awarded on secular criteria must be provided to a qualified church. This article contributes to the field's understanding of the interplay of law and administration by examining the constitutional issues in the case and their implications for public administration. By considering how this dispute was framed and the ways in which the court approached its resolution, public officials can better understand the issues in similar cases; anticipate potential disputes; and (re)design policies that will serve their communities, remain within constitutional limits, and reduce the likelihood of litigation.     

The clash of government structure and racial politics in the City of Richmond v. J. A. Croson

Drawing on a qualitative case study of the political actors who authorized Richmond, Virginia's minority contractor ordinance, this article analyzes the discontinuity between their efforts to redistribute political resources into the black community and the municipal government structure established by the progressive reform movement and reinforced by the Supreme Court ruling in the City of Richmond v. J. A. Croson. It argues that the specific points of contention are the progress reforms that eliminated political patronage and required parsimonious tax structures. Pervious research noted the benefits and/or constraints on the redistributive efforts of black politicians/ regimes arising from coalitions in governments structured by progressive reforms. This research, in contrast, argues that we must look to the political structure itself as a source of constraints also. Thus, as affirmative action policies like the one in the City of Richmond v. J. A. Croson are outlawed, racial minorities will find their efforts to achieve social, and especially economic, equality limited by the dictates of the political system itself.     

The Impact of United States v. Lopez on Intergovernmental Relations: A Preliminary Assessment

The U.S. Supreme Court's decision in Lopez v. United States(1995) was the first occasion since the. 1930s where a congressionalact was overturned on the ground that its subject matter boreno perceptible relation to interstate commerce. The case maysignal significant change in the Court's federalism jurisprudence.Instead of looking mainly to the Tenth Amendment to find constitutionalsafeguards for the states, conservative justices may now identifycommerce-power limitations. The politics of the Lopez case suggestthat the Congress finds electoral advantages in federalizingcrime and is disinclined to sort out roles for different governmentsin law enforcement. Paradoxically, this pattern exists evenas the Congress is undergoing certain changes that may makeconsideration of basic constitutional issues more likely. Finally,this article demonstrates the weakness of public interest groupsin influencing federal policymaking in criminal law.