120 Yale L.J. 1278 (2011).
For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective.
Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness.The Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).
120 Yale L.J. 1368 (2011).
We distinguish the economic problems when large financial institutions (“banks”) become insolvent from the political challenges that exist before banks are distressed. These political problems arise because policymakers would like to be able to precommit while a bank is still healthy to refrain from bailing out the bank later, should it become distressed. Political theory and historical experience show that politicians facing unsettled capital markets and highly anxious voters will always bail out the financial institutions that they deem “Too Big To Fail.” As such, the only way for government credibly to commit to refrain from pursuing a Too Big To Fail policy is to break up the largest financial institutions before they become Too Big To Fail. We identify the size at which we believe banks become Too Big To Fail. Banks that reach this size should be broken up. Liabilities should be limited to a metric based on the actual funds devoted to resolving failed banks. The metric that we identify is the targeted value of the FDIC’s Deposit Insurance Fund. We would prohibit any financial institution from amassing liabilities in an amount greater than five percent of the targeted value of this fund. The government could thereby commit credibly to stopping bailouts and to pursuing a policy of allowing financial institutions to fail. We believe that the lost economies of scale associated with this “ersatz-antitrust policy” would be offset by the large savings realized by avoiding future bailouts.
120 Yale L.J. 1420 (2011).
American Indians and the Fight for Equal Voting Rights
By Laughlin McDonaldNorman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.
120 Yale L.J. 1455 (2011).
In Brown's Wake: Legacies of America's Educational Landmark
By Martha MinowNew York, NY: Oxford University Press, 2010, pp. 320. $24.95.
120 Yale L.J. 1492 (2011).
The Bankruptcy Code accords much more favorable treatment to lessors than to secured lenders, but legal scholars have yet to identify a normative justification for the disparate treatment of the two transaction types. Law-and-economics scholars have written off the lease/loan distinction as “vacuous”; meanwhile, courts and commentators alike have called on Congress to abolish the distinction entirely. This Note identifies a normative basis for the lease/loan distinction—the maximization of aggregate welfare—and explains why leases are likely to generate less deadweight loss than are secured transactions. In a secured loan, the secured lender and the borrower may be able to shift depreciation costs to the borrower’s other creditors. By allowing bankruptcy courts to alter the terms of secured loans, the Bankruptcy Code limits (but does not eliminate) the depreciation cost externalities that may arise from secured transactions. In a lease, by contrast, the lessor and the lessee internalize depreciation costs in full. Since leases do not generate depreciation cost externalities, the Bankruptcy Code does not authorize courts to alter the terms of such transactions.
120 Yale L.J. 1532 (2011).
What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance of the plea bargain violates various judicial and constitutional principles, while ordering no remedy at all relies on a flawed understanding of the Sixth Amendment. This Note introduces the notion that ineffective assistance of counsel during plea bargaining is a structural error in the criminal process, rather than a trial error. It concludes that the only workable solution is to order a new trial.
120 Yale L.J. 1579 (2011).