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Lewis & Clark Law Review

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Volume 17 / Number 4 / 2013

2013 MARTIN LUTHER KING, JR., LECTURE

CIVIL RIGHTS FOR THE TWENTY-FIRST CENTURY: LESSONS FROM JUSTICE THURGOOD MARSHALL’S RACE- TRANSCENDING JURISPRUDENCE

Sheryll Cashin

17 Lewis & Clark L. Rev. 973 (2013)

This Essay pays tribute to Justice Thurgood Marshall’s race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. Justice Marshall’s role as a “Race Man” is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, Justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall’s vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall’s equality analysis, and calls for a multiracial coalition that transcends identity boundaries.

ARTICLES

DOES RACIAL DIVERSITY PROMOTE CULTURAL DIVERSITY?: THE MISSING QUESTION IN FISHER V. UNIVERSITY OF TEXAS

Kim Forde-Mazrui

17 Lewis & Clark L. Rev. 987 (2013)

In Fisher v. University of Texas, the Supreme Court declined to revisit the constitutionality of race-based admissions policies in higher education. The Court instead remanded the case to the lower court to re-evaluate whether the University’s use of race as an admissions factor is necessary to achieve the benefits of student-body diversity. The Court’s opinion does, however, reveal an important change in its views about the effect of racial diversity on a student body. The Court no longer acknowledges that racial diversity tends to promote cultural diversity and, indeed, appears to reject any claim that race is associated with culture. This Essay highlights and critiques the Court’s resistance to an association between race and culture, with a focus on black people and Black culture. Part I describes the Court’s shift from previously embracing a race-culture association in the context of higher education to its present resistance to such an association. Part II explains and substantiates the association between black people and Black culture, and suggests why such an association seems to be resisted by some observers, including by some black scholars. Part III returns to the legal question of race in higher education admissions, arguing that the Court’s failure to acknowledge the relationship between race and culture undermines its ability to recognize the value of racially diverse student bodies and the need of universities to use race to assemble them.

SECTION 1983 IS BORN: THE INTERLOCKING SUPREME COURT STORIES OF TENNEY AND MONROE

Sheldon Nahmod

17 Lewis & Clark L. Rev. 1019 (2013)

In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.

This Article, the first of its kind, discusses both cases in depth to provide a fuller understanding of early Section 1983 jurisprudence. Each case was a product of the political context of its time, the Cold War and the Civil Rights Movement. Each decision was also influenced by the briefings and oral argument presented to the Court. Finally, the two cases show the tension between federalism and civil rights protections through their respective majority and dissenting opinions written by two important Supreme Court justices. The interlocking opinions of Tenney and Monroe are therefore of interest to all scholars of civil rights, Section 1983, and the Supreme Court.

POSTRACIALISM: RACE AFTER EXCLUSION

Janine Young Kim

17 Lewis & Clark L. Rev. 1063 (2013)

This Article examines a profound shift in the concept of race. Although race is widely viewed as socially constructed through continuous struggles over meaning, its content has remained remarkably stable over time. Race, since the nation’s founding, has been defined mainly by three social conditions: difference, denigration, and exclusion. Among these, exclusion has been central, driving the effort to differentiate and denigrate in order to justify exclusion. Especially after the ascendancy of multiculturalism in the 1990s, however, race has come to be defined by another set of social conditions. They are (in corresponding order) identity, equality, and inclusion. Under this new conception of race, identity is primary; it is the logic of identity that demands and necessitates both equality and inclusion in society. The first aim of this Article is to explain this turn in the meaning of race—a turn that has taken so long and is so significant that it may well be appropriate to describe it as “post-racial.” The second aim of this Article is to consider the implications of the new conception of race to progressive politics, which may be obstructed by the fluidity of identity and the indeterminacy of equality. Inclusion, on the other hand, is a more concrete condition that can also serve as a political goal. Inclusion remains undertheorized, however, and this Article concludes with an initial effort towards addressing this deficit by identifying five types of racially problematic inclusion: conditional inclusion, limited inclusion, imperfect inclusion, revolving door inclusion, and overinclusion.

THE IRONIC PROMISE OF THE THIRTEENTH AMENDMENT FOR OFFENDER ANTI-DISCRIMINATION LAW

Taja-Nia Y. Henderson

17 Lewis & Clark L. Rev. 1141 (2013)

Policymakers and legal scholars agree that persistent private discrimination against persons convicted of crimes is a significant public policy concern. Persons convicted of crimes are routinely shut out of legitimate labor and housing markets, precipitating recidivist behavior and other social ills. In an attempt to curtail these practices, local and state governments have enacted anti-discrimination legislation designed to protect offenders’ access to these markets. Local legislative efforts have, however, proven inadequate to quell discrimination against this group, prompting calls for a federal response. This Article identifies a source of law supporting broad-ranging federal anti-discrimination legislation in this area—the Thirteenth Amendment. The goal of this Article is to provide a historical basis for linking market exclusion to slavery and other forms of citizen subordination. Its scholarly contributions lie at the intersection of two previously disparate academic projects: The call to expand the categories of private conduct that Congress is empowered to curtail under Section 2 of the Thirteenth Amendment and the call to consider seriously the historical antecedents in civil death, slavery, and Jim Crow for modern trends of hyper-conviction and incarceration, and collateral and incidental consequences. This Article links these important scholarly conversations and posits that the anti-subordination principles explicit in the Amendment’s text and history can inform more aggressive efforts to dismantle some of the private barriers to reintegration for convicted persons. By examining the pernicious effects of private discrimination on offenders, it shows that these forms of discrimination mimic characteristics of American chattel slavery and warrant swift federal intervention.

NOTES & COMMENTS

USING THE HISTORY OF NONCOMPETITION AGREEMENTS TO GUIDE THE FUTURE OF THE INEVITABLE DISCLOSURE DOCTRINE

Shannon Aaron

17 Lewis & Clark L. Rev. 1191 (2013)

Some courts are willing to use trade secret law to enjoin former employees from working for a competitor even in the absence of a valid non- competition agreement. Courts discussing such injunctions call the theory of relief the inevitable disclosure doctrine. This doctrine has developed throughout many jurisdictions over the past few decades. Some states have expressly rejected the doctrine while other states have openly accepted it. At present, the majority of states have failed to come to a definitive decision or have yet to directly address the issue. This makes it difficult for employers and employees to make informed decisions regarding potential post-employment restraints.

In determining how to apply the inevitable disclosure doctrine, courts should utilize the more substantially developed jurisprudence for non- competition agreements, because the two doctrines are similar in two significant ways. First, the doctrines are functionally the same—both keep a former employee from working for a competitor. Additionally, the doctrines involve the same balance of interests—the assets of the employer, the freedom of the employee, and the public welfare.By considering the clear guidelines that courts and legislatures have adopted in the context of non-competition agreements, courts can develop and clarify the applicability of the inevitable disclosure doctrine more easily.

BRYSON V. MIDDLEFIELD VOLUNTEER FIRE DEPARTMENT AND THE CHANGING UNDERSTANDING OF VOLUNTEER AS EMPLOYEE

Christopher R. Morgan

17 Lewis & Clark L. Rev. 1223 (2013)

Our nation has been shaped by Americans who have volunteered their time and energy, yet we often do not afford volunteers many of the same workplace protections that paid employees enjoy, even when the work they perform is of a similar nature. Most circuits of the United States Courts of Appeals have required a threshold showing of remuneration to receive protections under federal employment discrimination law, resulting in the exclusion of volunteers from its protection. However, the Sixth Circuit, in its decision, Bryson v. Middlefield Volunteer Fire Department, reexamined both the criteria by which one determines whether a volunteer is an employee, and applied a more reasonable standard that more closely follows the Supreme Court’s guidance. This Comment discusses the circumstances in Bryson, how and when volunteers have been classified as employees under federal employment discrimination law, the methods courts have used in making that determination, and then offers suggestions as to how one might provide for a more appropriate application of the federal protections, both under present law and with an eye toward future reforms.

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