117 Yale L.J. 734 (2008).
As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that the growing skepticism about the VRA and majority-minority districting is misguided by a simplistic and impoverished account of electoral competition in American politics. Electoral competition should be judged with reference to the ultimate ends it is intended to produce— more democratic debate, greater civic engagement and participation, and richer political discourse—all of which are generated by a deeper first-order competition among political leaders that this Article describes as “democratic contestation.” This Article offers democratic contestation, in place of electoral competition, as a basic value in the law of democracy and as the foundation for a new theory that helps reconcile approaches to race, representation, and political competition. A theory of democratic contestation shifts the normative focus from the pluralist absorption with which groups get what from politics to a new focus on the tenor and quality of political competition among leaders. When viewed through a theory of democratic contestation, the VRA is crucially procompetitive in the broader sense of democratic contestation. By carving out safe majority-minority districts, the VRA may break the discursive stasis of racial polarization in which politics revolve around the single axis of race. A theory of democratic contestation reveals how majority-minority districts may energize the process of democratic contestation and enable an internal discourse of ideas that moves beyond the racially polarized divide, an otherwise inadvisable move in the face of racially polarized opposition. A theory of democratic contestation thus demands a reevaluation of the Supreme Court’s recent decision in LULAC v. Perry and provides a new understanding of the renewed VRA going forward in the modern world of national partisan competition.
117 Yale L.J. 804 (2008).
Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have mobilized to challenge the contours of intellectual property (IP) law. Very recently, some from these groups have begun to develop a shared critique under the umbrella of “access to knowledge” (A2K). Existing accounts of the political economy of the field of IP have suggested that such a mobilization was unlikely. This Article takes the emergence of the A2K mobilization as an opportunity to develop a richer and less deterministic account of the contemporary politics of IP. It draws upon “frame mobilization” literature, which illuminates the role that acts of interpretation play in instigating, promoting, and legitimating collective action. The frame- analytic perspective teaches that before a group can act it must develop an account of its interests and theorize how to advance these interests. These acts of interpretation are both socially mediated and contingent. Ideas can be a resource for those engaged in mobilization, but one that is not fully in their control. Frames thus can lay the scaffolding for a countermovement even as they pave the way for a movement’s success. Law is a key location for framing conflicts because it provides groups with symbolic resources for framing, and because groups struggle within the field of law to gain control over law’s normative and instrumental benefits. Law thus exerts a gravitational pull on framing processes. Engagement with law can influence a group’s architecture, discourse, and strategies, and can also create areas of overlapping agreement and— as importantly—a language of common disagreement between opposing groups. The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities.
117 Yale L.J. 886 (2008).
117 Yale L.J. 920 (2008).
Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it may inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Those seeking redress from such policies through litigation would find that existing constitutional doctrine does not readily let judges account for group harms when balancing the interests at stake. This Note, however, argues that Muslim plaintiffs can use the Free Exercise Clause doctrine of “hybrid situations,” announced in Employment Division v. Smith, to plead that certain profiles’ burdens upon their religiously motivated exercise of secular constitutional rights threaten to subordinate their religious community as a whole.