A New Standard of Review: Craig v. Boren and Brennan's “Heightened Scrutiny” Test in Historical Perspective

“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ¹ With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, ² both reversed the decision of the district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,” ³ by creating what is now referred to as the “heightened scrutiny” ⁴ standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.     

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

This analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.     

Inter‐person Separation: A New Objective Standard for Evaluating the Spatial Fairness of Political Redistricting Plans

The fundamental basis for territorial political representation is the presumption that people share greater common interests with others in closer geographic proximity than with people farther away. This principle is found in U.S. legal requirements that districts for the House of Representatives and state legislatures should not needlessly divide “communities of interest” and should be “reasonably compact.” We propose a new objective standard to evaluate spatial fairness of redistricting plans: the extent to which a delineation minimizes total distance between all pairs of people assigned to the same district. To date, the legal standard of compactness has primarily been thought of in terms of the shapes of political districts, but boundary shape may have little correspondence with how populations are actually clustered and dispersed. Inter‐person separation, by contrast, provides a direct, intuitive metric for evaluating the congruence of districting plans with the territorial basis of political representation. To operationalize an inter‐person separation standard, we propose a model and present a heuristic method for delineating comparator districting schemes. We apply the standard to the current U.S. Congressional Districts in the states of Arizona and North Carolina to demonstrate how inter‐person separation could be used to develop and vet future redistricting plans.     

The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

Controlling Forum Choice and Controlling Policy: Congress,Courts and the IRS

Considerable scholarly attention has been paid to litigation and its influence on social and bureaucratic policy. One area of research has focused on interest group litigation. Another area of scholarship has shown that Congress encourages individual use of the courts to monitor and control bureaucratic behavior. In several areas of law, litigants have a choice of forum by deliberate legislative design, which is sometimes derided as “forum shopping.” Little attention has been paid to the dominant national political coalition's ability to encourage forum shopping through legislation and the appointment process. One area of law that the coalition can encourage forum shopping is in challenging tax audits. It can do so through implict legislative signals and the appointment process to influence litigants to sue the Internal Revenue Service in the forum that offers the litigant the greatest chance of success. Given the prominent role of courts in setting and determining policy and given the particular prominence of taxes and tax policy over the past three decades, whether and where tax litigants choose to sue is critically important to understanding the dynamics of both tax policy and tax enforcement, as well as public policy creation and change. To demonstrate the influence of political forces on tax forum choice, I compare tax and district court filings from 1994 through to 2000. I find that as the Tax Court and national political coalition become more conservative, more taxpayers sue in the Tax Court and this “forum shopping” choice is supported by the national political coalition.     

The representation of non-Irish immigrants in recent Irish films

This paper examines the representation of ethnic and racial minorities in Celtic Tiger and post-Celtic Tiger films such as Adam and Paul (2004), Pavee Lackeen (2005), Once (2006), The Front Line (2007), and New Boy (2007). Key areas of analysis include: how is immigration represented on screen? Whose character's point of view predominates? How much space do these ethnic minorities occupy in the shot? In order to answer these research questions, I draw on a plurality of theoretical paradigms currently employed in film theory, mainly narrative theory, critical race theory and feminist theory. As I show, the differences between these films are paramount and will inform the different ways in which recent Irish cinema represents racial and ethnic Otherness. In some films, immigrants appear mainly as decorative props and they largely function as cinematic elements which emphasise the marginalisation of other “inner” Irish outsiders, particularly drug addicts and Travellers. By contrast, other films make serious attempts to see “into” or “through” immigrant characters by fictionalising not only the point of view of natives but also of newcomers themselves.     

An Informational Right to the City? Code,Content, Control,and the Urbanization of Information

Henri Lefebvre talked of the “right to the city” alongside a right to information. As the urban environment becomes increasingly layered by abstract digital representation, Lefebvre's broader theory warrants application to the digital age. Through considering what is entailed by the urbanization of information, this paper examines the problems and implications of any “informational right to the city”. In directing Tony Benn's five questions of power towards Google, arguably the world's most powerful mediator of information, this paper exposes processes that occur when geographic information is mediated by powerful digital monopolies. We argue that Google currently occupies a dominant share of any informational right to the city. In the spirit of Benn's final question—“How do we get rid of you?”—the paper seeks to apply post‐political theory in exploring a path to the possibility of more just information geographies.     

Electoral redistricting and minority political representation in Canada and the United States

This article compares the political representation of visible minorities in Canada and the United States, focusing on differences in federal redistribution (redistricting) practices and constituency composition. Although the two countries both use territorially‐based electoral systems, they operate under different legal standards and institutional environments for the creation of ridings (districts). In the US, redistricting is a highly political process, yet must respect strict population equality standards. Litigation over redistricting is common, and courts adjudicate voting and representation under a constitutional system enforcing strong individual rights. In contrast, Canada's redistribution process is relatively nonpartisan, permits large population variances among ridings, places more emphasis on community rights, and is seldom subject to extensive court challenges. Despite these differences, the two countries exhibit striking similarities in the overall level of visible minority representation relative to population share. Conversely, Canada's population inequalities among ridings create a systematic disadvantage for visible minorities. Political attention to visible minority representation is stronger in the US, but the means to achieve it are constrained both by the judicial limits on group representation and the constitutional limits on the use of racial identity. Canada has a framework for political representation that could easily accommodate significant visible minority representation but lacks the political imperative to use it, in part because doing so would run counter to Canada's multicultural image of these groups as immigrants rather than as non‐white minorities.     

Some Personal Reminiscences and What They Meant for Me

There are those who have said I should write a book, and there are those—about the same in number—who have said I should not write a book. Those in the negative assert that my “book” already is written in the several hundred opinions (majorities, concurrences, dissents) I have filed over the years, and in my public utterances. There are valid arguments, I suppose, on both sides. I certainly do not wish to write anything that merely seeks to explain further my vote in decided cases, or to comment—supportively or adversely—on colleagues' votes, or to express little more than after‐the‐fact criticism. In that context, what might be said belonged in the decisional process itself. But there are other things in Supreme Court experience. Law students are inclined to ask questions. Example: “Tell me, how does one come to be a federal judge?” Justice Tom Clark had a direct response: “One has to be on the corner when the bus comes by.” One federal appellate judge plaintively said to me: “The only reason I am on the federal bench is because I was a close friend of a United States Senator.” (He had served for a time as the Senator's administrative assistant.) It may perhaps be said that every federal judge comes by his status in his own way. Of course, there are things one must not do, but I doubt that there is a specific path one must follow to be eligible and seriously regarded as a candidate for federal judicial service.     

“SEEING” THE PAST: TEXT AND QUESTIONS OF HISTORY IN THE RĀJATARAṄGIṆĪ

Traditional scholarly opinion has regarded Kalha?a's Rājatara?gi?ī, the twelfth‐century Sanskrit chronicle of Kashmiri kings, as a work of history. This essay proposes a reinvestigation of the nature of the iconic text from outside the shadow of that label. It first closely critiques the positivist “history hypothesis,” exposing its internal contradictions over questions of chronology, causality, and objectivity as attributed to the text. It then argues that more than an empiricist historical account that modern historians like to believe it is—in the process bracketing out integral rhetorical, mythic, and didactic parts of the text—the Rājatara?gi?ī should be viewed in totality for the kāvya (epic poem) that it is, which is to say, as representing a specific language practice that sought to produce meaning and articulated the poet's vision of the land and its lineages. The essay thus urges momentarily reclaiming the text from the hegemonic but troubled understanding of it as history—only to restore it ultimately to a more cohesive notion of historicality that is consistent with its contents. Toward this end, it highlights the concrete claim to epistemic authority that is asserted both by the genre of Sanskrit kāvya generally and by the Rājatara?gi?ī in particular, and their conception of the poetic “production” of the past that bears a striking resonance with constructivist historiography. It then traces the intensely intertextual and value‐laden nature of the epistemology that frames the Rājatara?gi?ī into a narrative discourse on power and ethical governance. It is in its narrativity and discursivity—its meaningful representation of what constitutes “true” knowledge of time and human action—that the salience of the Rājatara?gi?ī may lie.     

How do Italian footwear industrial districts face globalization?

This paper examines the impact of globalization of production on the Italian footwear sector and investigates the structural changes taking place in some shoe districts as they join international production networks. The following questions are discussed: Are Italian footwear districts specializing in particular phases of the production cycle? Is there a trend towards the reduction of activities carried out within districts? Or are different patterns emerging according to the districts' main market segment and to the value chains (e.g. luxury fashion market or mass market) they belong to? The study explores these issues using data on outward processing trade (OPT) collected by Associazione Nazionale Calzaturieri Italiani (ANCI) to analyse the fragmentation of production in the footwear sector at “provincia” level. The available disaggregation of data allows an investigation of the different outsourcing strategies and emerging trends within the district. Two case studies are presented; one on Riviera del Brenta in Veneto and the other on Barletta in Puglia. In the footwear districts investigated, evidence of different international delocalization strategies is found. It is argued that these different patterns of specialization are closely related to the clusters' market position and suggest that these patterns influence the clusters' potential for future competitiveness.     

The legal (de)construction of geography: race and political community in supreme court redistricting decisions

This article examines the different conceptions of racial identity and ‘geography’ in two landmark Supreme Court decisions, Shaw v. Reno (1993) and Easley v. Cromartie (2001). Both decisions evaluated similar Congressional redistricting plans in North Carolina, but reached opposite conclusions. In Reno, the Court based its reasoning on the ‘objective’, ‘natural’ and ‘rational’ geography of North Carolina. Such geographic relationships create political communities and constrain the way in which state legislatures can draw electoral districts. In contrast, the Easley decision based its reasoning on voting behaviour, and makes an implicit appeal to deliberative democratic principles. From this perspective, political relationships create the geographic relationships defined by Congressional district boundaries. Where the Reno decision treats race as an arbitrary social distinction that the state should not use as the basis of political representation, the Easley opinion argues that the state can consider differences in racial voting behaviour during the redistricting process. More fundamentally, the Easley decision implies that racial identity is formed by deliberative political communities, rather than being an objective, static characteristic. This suggests that disputes over spatial relationships are critical to the construction of hegemonic racial identities, and that space is fundamental to the conception of racial difference.     

Whose Streets? Roadway Protests and Weaponised Automobility

The article examines the role of automobility in US-based anti-racism demonstrations and counter-demonstrations. We contrast the spatial strategies of highway occupations by racial justice activists, with so-called “weaponised car” attacks by the American far right. Analysing online memes and anti-protest legislation, the article explores under-acknowledged links between “automobile supremacy”—the structure of motorists' privilege as embedded in law, the built environment and the popular imaginary—and the patterns of racial stratification often termed “white supremacy”. We document three ways in which automobility has been enlisted as means of violence against protestors and against wider Black communities in the US: through the use of vehicles, right-of-way conventions, and roadways as weapons. The article demonstrates how the imperative to make way for the motorist has long provided cover for racial injustice.     

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.     

3. NATURE,RELIGION, AND IMAGINATION: COMMENTS ON IMAGES OF HISTORY

After sharing some reflections, I raise three questions. The first asks about the role of nature and reason according to Kant's teleological history, and the extent to which Kant's essays written before the Critique of the Power of Judgment (1790) are “dogmatic,” as his phrase “aim of nature” might suggest. The second asks about Kant's “impure” ethics and the role of religion. What would Kantian religion look like today? The last question concerns the relation between images and ideas—a thornier issue than Kant's initial definitions of imagination and reason would seem to suggest.     

District Voter Turnout and Dyadic Representation in Congress

One of the most important tools by which citizens can influence their elected officials' behavior is through voting—the electoral connection. Previous studies demonstrate that the opinions of voters are better represented than the opinions of nonvoters within an electoral jurisdiction, but we do not know whether jurisdictions with higher levels of aggregate voter turnout are better represented by their elected officials compared to those with lower levels of turnout. Using data compiled across five congressional sessions (2003–2013), this article investigates whether congressional districts with higher voter turnout are better represented by their member of Congress (MC). We find evidence that district voter turnout positively conditions the relationship between district opinion and MC voting behavior even after accounting for the possible effects of electoral competition and district income and racial demographics. In addition, we uncover evidence that partisan differences exist in this conditioning effect such that higher voter turnout enhances roll call voting responsiveness among Democratic MCs but not among Republican MCs. These findings suggest that congressional districts as a whole benefit from a political responsiveness standpoint when more of their constituents turn out to vote and contribute to literatures on political representation, political participation, democratic accountability, and the U.S. Congress.     

DOES HISTORY MATTER? CHARLES TAYLOR ON THE TRANSCENDENTAL VALIDITY OF SOCIAL IMAGINARIES

Since its appearance in 2007, Charles Taylor's monumental book A Secular Age has received much attention. One of the central issues in the discussions around Taylor's book is the role of history in philosophical argumentation, in particular with regard to normative positions on ultimate affairs. Many critics observe a methodological flaw in using history in philosophical argumentation in that there is an alleged discrepancy between Taylor's historical approach, on the one hand, and his defense of fullness in terms of openness to transcendence, on the other. Since his “faith‐based history” is unwittingly apologetic, it is not only “hard to judge in strictly historical terms,” but it also proves that “when it comes to the most ultimate affairs history may not matter at all.” This paper challenges this verdict by exposing the misunderstanding underlying this interpretation of the role of history in Taylor's narrative. In order to disambiguate the relation between history and philosophy in Taylor's approach, I will raise three questions. First, what is the precise relation between history and ontology, taking into account the ontological validity of what Taylor calls social imaginaries? Second, why does “fullness” get a universal status in his historical narrative? Third, is Taylor's position tenable that the contemporary experience of living within “an immanent frame” allows for an openness to transcendence? In order to answer these questions, I will first compare Peter Gordon's interpretation of the status of social imaginaries with Taylor's position and, on the basis of that comparison, distinguish two definitions of ontology (sections I and II). Subsequently, I try to make it clear that precisely Taylor's emphasis on the historical character of social imaginaries and on their “relaxed” ontological anchorage allows for his claim that “fullness” might have a trans‐historical character (section III). Finally, I would like to show that Taylor's defense of the possibility of an “openness to transcendence”—as a specific mode of fullness—is not couched in “onto‐theological” terms, as suggested by his critics, but that it is the very outcome of taking into account the current historical situation (section IV).     

Toward a Received History of the Holocaust

In this article, I examine both the problem of so-called postmodern history as it relates to the Holocaust and suggest the ways that Saul Friedlander's recent work successfully mediates between the somewhat overly polemicized positions of “relativist” and “positivist” history. In this context, I find that in his search for an adequately self-reflexive historical narrative for the Holocaust, Hayden White's proposed notion of “middle-voicedness” may recommend itself more as a process for eyewitness writers than as a style for historians after the fact. From here, I look at the ways Saul Friedlander's reflections on the historian's voice not only mediate between White's notions of the ironic mode and middle-voicedness, but also suggest the basis for an uncanny history in its own right: an anti-redemptory narrative that works through, yet never actually bridges, the gap between a survivor's “deep memory” and historical narrative. For finally, it may be the very idea of “deep memory” and its incompatibility to narrative that constitutes one of the central challenges to Holocaust historiography. What can be done with what Friedlander has termed “deep memory” of the survivor, that which remains essentially unrepresentable? Is it possible to write a history that includes some oblique reference to such deep memory, but which leaves it essentially intact, untouched and thereby deep? In this section, I suggest, after Patrick Hutton, that “What is at issue here is not how history can recover memory, but, rather, what memory will bequeath to history.” That is, what shall we do with the living memory of survivors? How will it enter (or not enter) the historical record? Or to paraphrase Hutton again, “How will the past be remembered as it passes from living memory to history?” Will it always be regarded as so overly laden with pathos as to make it unreliable as documentary evidence? Or is there a place for the understanding of the witness, as subjective and skewed as it may be, for our larger historical understanding of events? In partial answer to these questions, I attempt to extend Friedlander's insights toward a narrow kind of history-telling I call “received history”—a double-stranded narrative that tells a survivor-historian's story and my own relationship to it. Such a narrative would chart not just the life of the survivor-historian itself but also the measurable effect of the tellings—both his telling and mine—on my own life's story. Together, they would compose a received history of the Holocaust and its afterlife in the author's mind—my “vicarious past.”     

From regional innovation systems to local innovation systems: Evidence from Italian industrial districts

The theoretical concepts of industrial district and regional innovation system though closely related, capture different aspects of regional economic development. Given the “nestedness” of a system in other systems, one regional innovation system can support several districts. However, in some cases, districts may be considered as local innovation systems with independent innovation patterns. In fact, the socio-economic characters of industrial districts can be so specific that the region's size and institutional framework may be inadequate in fully describing their innovation processes. In the case of the Italian region of Lombardy, this “autonomous” local innovation system model proliferates.