Volume 2019, No. 4

PDF link Table of Contents


PDF link Free Exercise (Dis)Honesty

by James M. Oleske, Jr.

For over half a century, the Supreme Court’s free exercise jurisprudence has been characterized by a less-than-forthright treatment of precedent. The pattern began in the 1960s, when Justice Brennan led the Court to recognize a right to religious exemptions while ignoring language from past cases that had rejected such a right. The trend continued in the 1990s, when Justice Scalia led the Court to disavow the pro-exemption view while ignoring language in cases that had embraced it. Today, the Court appears poised to shift its position on religious exemptions yet again, and leading scholars are suggesting it do so by creatively rewriting precedent.

PDF link The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform

by Michelle D. Layser

Place-based investment tax incentives, which encourage taxpayers to invest in poor areas, constitute a particularly controversial, yet undertheorized, category of tax laws. The central problem presented by current place-based investment tax incentives is a contradiction between rhetoric and reality. They are presented as laws that benefit low-income communities, yet the dominant types of place-based investment tax incentives are not designed for this purpose. Understanding the reasons for this disconnect is key to assessing the limits and potential of place-based investment tax incentives as anti-poverty tools. By tracing the development of place-based investment tax incentives to their pro-gentrification origins, this Article argues that what many anti-poverty advocates view as a flaw—the lack of safeguards for poor communities that allegedly opens the door to abuses—is, in fact, a feature of most current place-based investment tax incentives.

PDF link Law Enforcement in the American Security State

by Wadie E. Said

This Article documents the evolution of the modern American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena—the terrorist, the criminal, the illegal immigrant—as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is a  society in which security personnel can monitor and detain the citizenry at ever earlier intervals, often on evidentiary showings that are at best minimal. The relationship between war on terror practices and traditional policing is symbiotic; sometimes a tactic migrates from the foreign arena to the domestic, and in other instances police practices are brought to bear in the context of war.

PDF link On Locs, “Race,” and Title VII

by Ronald Turner

In its recent and important decision in EEOC v. Catastrophe Management Solutions interpreting and applying Title VII of the Civil Rights Act of 1964, the United States Court of Appeals for the Eleventh Circuit held that an employer’s grooming policy prohibiting the wearing of dreadlocks by and denying employment to Chastity Jones, a Black woman, was not racial discrimination under and within the meaning of the statute. In so holding the court, relying on mid-twentieth-century dictionary definitions, concluded that the Title VII term “race” refers to biological conceptions and not social constructions of that word. In addition, the court determined that locs are not an immutable racial characteristic subject to the statute’s antidiscrimination mandate and protection. This essay critiques and rejects (1) the court’s race-as-biology approach grounded in dictionaries reflecting centuries-old, pseudoscientific, and debunked understandings of the invention and myth of “race,” and (2) the court’s fundamentally flawed immutability analytic as applied to Black women’s natural hair and, more specifically, locs in the workplace context. The article concludes that future court decisions addressing this subject should not rely on and replicate the Eleventh Circuit’s impoverished interpretation of Title VII when determining the legality of employers’ no-locs conformity commands.

PDF link Partisan Constitutionalism: Reconsidering the Role of Political Parties in Popular Constitutional Change

by Brian Highsmith

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation.


PDF link Making “Explicit Authority” Explicit: Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority

by Kirsten Koschnick

2011 Wisconsin Act 21 modified the Wisconsin Administrative Procedure Act to introduce legislative and gubernatorial accountability in agency rulemaking, prohibit agencies from promulgating and enforcing rules that are more restrictive than the regulatory standards provided for by the Legislature, and redefine agency rulemaking authority. While most of Act 21’s provisions implement straightforward procedural requirements, two of its provisions work together to create an entirely new regime for agency rulemaking authority in Wisconsin. The first, Wis. Stat. § 227.10(2m), limits rulemaking authority to implement or enforce any regulatory “standard, requirement, or threshold” to regulatory standards already “explicitly required or explicitly permitted by statute.” The second, § 227.11(2)(a), designates several types of statutory clauses that fail to confer such rulemaking authority. Together, these two changes threaten to pull the rug out from under agencies in their attempts to defend the validity of their rules because these changes target the very basis for rulemaking authority upon which agencies had grown most comfortable relying.