Volume 76, Issue 1

Complete Index of Volume 76, Issue 1 

Front Matter

The Perma Project


Tempering Society’s Looking Glass: Correcting Misconceptions About the Voting Rights Act of 1965 and Securing American Democracy

Orville Vernon Burton

This Article presents a brief history of the Voting Rights Act of 1965 with an eye toward correcting the historical misconceptions that courts have promulgated and that have led to increased challenges to voter equality. The hope is that a more nuanced and complete understanding of the fight for African-American enfranchisement will inform political and legal battles over voting rights.

The Irony of Intent: Statutory Interpretation and the Constitutionality of Section 2 of the Voting Rights Act

Joshua S. Sellers

Part I of this Article provides an overview of the Voting Rights Act, with a particular focus on Section 2, the operative provision of interest. This Part then considers City of Boerne and its progeny, cases delimiting congressional enforcement power under Section 5 of the Fourteenth Amendment, and the implications of these cases for Section 2’s constitutional viability. Part II empirically investigates lower court judges’ propensity to favor the use of a discriminatory intent standard in Section 2 cases. Part III relates the findings to the question of Section 2’s constitutionality.

Equal Sovereignty as a Right Against a Remedy

Seth Davis

This Article’s subject is federalism’s limits upon remedies. This Article aims at a new way to understand and to critique Shelby County. It argues that Shelby County created a new species of a “right against a remedy.” This newfound right against a remedy is unusual when compared to other constitutional rights that may be invoked against remedies. Unlike other rights against remedies, Shelby County’s equal sovereignty doctrine does not take seriously countervailing concerns about the adequacy of the system of remedies for vindicating constitutional rights.

Part I introduces the concept of a right against a remedy. It shows that constitutional rights against remedies are limited by the demand for an adequate system of remedies even where nonconstitutional remedies are all that’s at stake. As Part II argues, that makes Shelby County, which involved enforcement of the Fifteenth Amendment right to vote, all the more unusual for its failure to take seriously the need for adequate remedies. Part III locates equal sovereignty within the jurisprudence of constitutional remedies, arguing that it has the potential to undercut the principle that the system of constitutional remedies must be sufficient to ensure the rule of law.

Reflections on Justice Thurgood Marshall and Shelby County v. Holder

Wendy B. Scott

This Article takes the retrospective view of the Court’s earlier jurisprudence on the Voting Rights Act through the eyes of Associate Justice Thurgood Marshall to prove the predictability of the Shelby County decision. Part I of this Article explores how the Court has differed on two fundamental constitutional questions raised by civil rights statutes: the appropriate balance between state and federal authority and whether Congress or the Court has the authority to determine the constitutional necessity for the Act. These important issues are at the heart of the differing judicial perspectives on the Act. Part II details the Court’s response to the strategies employed by covered jurisdictions to resist congressional authority and push the federalism balance in favor of local control. Many of these opinions were rendered while Justice Marshall sat on the Court and illustrate the historic ambivalence towards the Act. Part III contrasts the prevailing norms on the Roberts Court of color-blind equality and post-racialism that undergird Shelby County with Justice Marshall’s approach to achieving racial equality under the Act. While Marshall would have reached a different result, the majority in Shelby County reached a conclusion consistent with earlier decisions on racial equality. The Article concludes that the choice made to declare Section 4 unconstitutional will lead to the dilution of minority voting strength absent a congressional response to the Court.

The Forgotten Provision of the Fourteenth Amendment: Section 2 and the Evolution of American Democracy

Earl M. Maltz

This article will discuss the forces that shaped Section 2 of the Fourteenth Amendment and the process by which the provision was drafted. After briefly recounting the origins of the Three-Fifths Clause of the original Constitution, the Article will situate the impetus for the adoption of Section 2 in Republican unwillingness to have the political power of white Southerners enhanced by virtue of the Thirteenth Amendment, which by its terms would have had the effect of increasing the representation of the ex-slave states in the House of Representatives without requiring those states to allow the freedmen to vote. The Article will then describe the complex political struggle that ultimately led to the adoption of the current form of Section 2. The Article will conclude with some observations about the implications of the debates over Section 2 on our understanding of the structure of the Constitution as a whole.

The Necessity of the Voting Rights Act of 1965 and the Difficulty of Overcoming Almost a Century of Voting Discrimination

Paul Finkelman

Part I discusses the Voting Rights Act of 1965 in the context of the Civil Rights Act of 1964 and demonstrates that changing the political culture and making voting meaningful was more difficult than ending de jure segregation. Part II of this Article suggests that the Civil Rights Act of 1964, although somewhat successful, was not enough to truly enfranchise African Americans. Part III illustrates why the Voting Rights Act of 1965 was needed to purge the southern states of legislation and practices created to stifle the black vote without language that was overtly discriminatory. Specifically, this Part discusses the efforts of white South Carolinians to disfranchise the state’s black population from the end of Reconstruction to the passage of the Voting Rights Act. Part IV examines the role of party primaries in South Carolina and demonstrates that these practices limited the effectiveness of the Act to ensure equal access to the polls. Finally, Part V recognizes that while the Voting Rights Act of 1965 has led to some significant changes in the South, there are still large disparities between the actual population of African Americans in the South and the actual representation in southern legislatures and in Congress.


A Court’s Guide on How to Gut Precedent by Relying on it: Halliburton II’s Puzzling Effect on Securities-Fraud Class Actions

Leah Neupert

Part I provides background on the history of securities-fraud class actions, beginning with the opinion in Basic, and explains how the meaning of price impact and materiality have changed over time. Part II discusses the opinions of Halliburton I and Amgen, focusing on the parts of the opinions that Halliburton II undermines. Part III details Chief Justice Robert’s opinion in Halliburton II. Part IV explains what this author believes is the correct interpretation of Halliburton II and concludes that applying this interpretation will effectively overrule Halliburton I and Amgen, because the concepts of price impact, loss causation, and materiality are inseparably interrelated. Part V presents three alternative interpretations of Halliburton II that could preserve Halliburton I and Amgen. It proposes that courts should either apply the correct interpretation of Halliburton II or apply the most rational alternative, which imposes a standard of clear and convincing evidence on defendants to successfully rebut the Basic presumption. Finally, Part VI concludes that although Halliburton II’s practical impact is uncertain, the inconsistencies between the opinion and Halliburton I and Amgen are clear.

Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works

Lauren Jean Bradberry

Architectural works create the backdrop to human life and are an integral piece of society’s cultural experience. As phones with camera capabilities and scanners become more sophisticated and the ease with which material can be downloaded from the internet becomes increasingly simple, however, architects face the increasingly difficult task of trying “to prevent unauthorized copying of their work.”

Part I of this Comment presents the background of the Architectural Works Copyright Protection Act (“AWCPA”) and the current judicial treatment of AWCPA claims. Part II explores the inadequacies of the congressional and judicial tests for scope of copyright protection for architectural works. Part III examines sui generis protection for other inherently functional works and the judicial treatment when determining the scope of protection in those areas. Finally, Part IV proposes a workable test that courts can use to determine the scope of copyright protection for architectural works. This test uses a modified version of the Second Circuit’s dissection test to ensure that courts do not pass over original large-scale groupings of elements and original overall form for copyright protection.

Hold the Phone! “Peer-to-Peer” Ridesharing Services, Regulation, and Liability

Mark Macmurdo

Peer-to-peer ridesharing services, such as Uber or Lyft, pose a wide spectrum of policy challenges for state and local regulators and courts, especially with regard to public safety. These ridesharing services all stress that they are technology companies—not providers of transportation services—that merely connect individuals with third-party drivers. Such a characterization is clearly an attempt to limit the companies’ liability for accidents. Therefore, determining who is ultimately liable for damages from injuries caused by the activities of ridesharing services is an important public-policy concern.

Although there are many economic benefits to the proliferation of ridesharing services, governments and courts need to arrive at an appropriate balance of traditional regulation and imposition of liability to ensure public safety in light of the services’ rapid expansion. Part I of this Comment explores traditional and existing for-hire transportation regulations and compares them with the modern approaches taken by regulators responding to the creation of ridesharing services. Part II considers many of the potential ways that courts might impose liability upon the ridesharing service providers. Part III discusses how regulation and imposition of liability can work together to minimize the risks that ridesharing services pose to public safety and welfare. As detailed below, the modern regulatory approaches will be effective in ensuring public safety as long as ridesharing services are also held liable for the acts of their drivers.