This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President’s power to command, to be, in Alexander Hamilton’s words, the nation’s “first general and Admiral.” The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and (1) colonial taxation, (2) the creation of a national tax structure, and (3) the adoption of uniformity clauses in state constitutions in the antebellum period. I then turn to a discussion of how Einhorn's book helps to debunk an urban legend of modern tax policy debates; namely, that critical perspectives and tax simply don't mix.

This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President’s power to command, to be, in Alexander Hamilton’s words, the nation’s “first general and Admiral.” The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.

The Article then elaborates upon and offers a justification for the theory of equality underlying Title IX’s three-part test. To support this theory, the Article surveys existing feminist legal scholarship on sport and identifies a need for an analysis of women’s position in sport that goes beyond a debate over assimilation versus accommodation, to analyze how educational institutions participate in the construction of sport as a fundamentally masculine domain.

To fill this void, the Article explores in detail the processes through which educational institutions construct the different relationships of men and women to sport, through their control over athletic opportunities and the culture of sport. Finally, Professor Brake takes this theory and applies it to other aspects of Title IX law, advocating specific doctrinal reforms that would make Title IX’s overall application to athletics more consistent with the theory articulated in this Article.

Although this article recognizes that the studies do not provide for comprehensive decisionmaking rules, the article articulates how the studies can be used to incrementally construct, test, and improve policies and practices in a specific area of public activity.

The article creates a typology of different kinds of dueling class actions; explores the problems that plague each type; considers the effect the Supreme Court's decision in Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367 (1996), has had on these problems; evaluates the efficacy of existing judicial tools to curb them; and proposes an array of possible solutions. The more modest "quick fixes" include: (1) creation of a registry of all class actions filed; (2) amendment of Rule 23 and state class action rules to bar the certification of dueling class actions and to require the appointment of a class action advocate; (3) amendment of the Anti-Injunction Act to enlarge the authority of federal courts to enjoin dueling class actions; (4) amendment of the multidistrict litigation statute to permit transferee courts entertaining consolidated dueling class actions to retain the cases for trial; and (5) enactment of legislation requiring better notice to absent class members in dueling class actions. The article also explores more dramatic legislative solutions to permit the consolidation of all dueling class actions in a single forum.

In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming.

The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so.

Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII’s timely complaint and retaliation doctrines create an untenable framework for employees in need of the law’s substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes.

This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.

Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the courts. In Randolph, the Court held dispositive the actual expectations that ordinary individuals have, albeit third-parties, when being asked to consent to a search. As a result, Burkoff concludes that a valid consent to search should no longer be deemed to have been freely and voluntarily tendered unless the consenting party is actually aware – whether or not he or she has been expressly warned – of the right not to consent.

I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more libertarian friends found the times invigorating.

In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own legitimacy?

Professor Delgado examines various possible frameworks for analyzing cases like these and argues that the committee chair’s way of seeing the matter was the incorrect framework.

Prompted by his conservative colleague “Laz,” Rodrigo has formulated a several-pronged attack on Sander’s premise that “stairstep” admissions (and, later, law firm hiring) just hurts the cause of black lawyers.

The professor presses Rodrigo to defend his views, and the arrival of Giannina requires him to articulate them even more. You will enjoy the lively give-and-take among these three intellectuals of color.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a case if (among other circumstances) he or she has “a financial interest ... in a party to the proceeding.” This prohibition has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute “automatic conflict screening” using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency.

The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is “far too high.” The committee’s report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.

Three sets of curious complications may arise if the federal court seeks to enter such an injunction. First, if diversity is lacking between the opt-out plaintiff and the defendant, and the plaintiff sues on only state-law claims, the federal court may lack subject matter jurisdiction to grant an injunction. It also may lack personal jurisdiction over an opt-out plaintiff who has no contacts with the state in which the federal court sits. Second, federalism complications are likely to crop up. Both the Anti-Injunction Act and the Younger abstention doctrine limit the authority of federal courts to issue injunctions against pending state court proceedings. Finally, equitable and practical considerations may counsel against micro-management of state court litigation by a federal judge.

The objective in identifying these complications is not to question the wisdom of back-end opt-out rights, but rather to encourage their use by suggesting a variety of steps that courts and counsel can take to enforce the limits built into back-end opt-out rights without unnecessarily intruding upon the prerogatives of state court judges, exposing back-end opt-out plaintiffs to onerous litigation in for a with which they have no contact, or rendering their preserved rights meaningless. Among other recommendations, the article urges federal and state courts to collaborate in the enforcement of back-end opt-out rights.

NO SEAT AT THE TABLE (NYU Press 2007) documents how the numbers lag badly behind the expectations, and how the reality lags further yet behind the numbers. Analyses of Fortune 500 proxy data, as the enclosed chapter demonstrates, produce scant reason to posit a reversal of the leaky pipe phenomenon any time soon. The number of women directors remains static, or grows only slowly, while the number of women trophy directors, those who 4 or more directorships, has increased rapidly. These and other factual findings support the proposition that the glass ceiling remains in place.

NO SEAT AT THE TABLE explores explanations for women's failure to advance in the number one would have predicted. Further, NO SEAT AT THE TABLE offers suggestions both for women who wish to advance and for corporations which wish to facilitate entry of more women into the pool from which corporate directors may be chosen.

This Article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment. While empirical evidence of these differences is currently limited, Part II identifies and discusses two pioneering examples. The first documents important dissimilarities between racial harassment litigation and sexual harassment litigation; the second chronicles the differences between the dynamics and theoretical explanations for racial harassment and sexual harassment in the law firm context.

Given the dominance of the sexual harassment model and the presumption of its applicability to other harassment disputes, including racial harassment, it is not surprising that comparatively little research and study of racial harassment and other forms of harassment have been done. The discussion and analysis here contributes to the research on the topic. Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model.

First, the participants in the earlier conference apparently assumed that appellate courts carry out their work in isolation from the political and social conflicts of their time. No one today would accept that picture, but has immersion in controversy changed the way appellate courts carry out their business? That is a different, and more difficult, question.

Second, the 1975 conference took place at a time of ferment over issues involving precedent, uniformity, and appellate structure. Today, concern about disuniformity in appellate decisions barely registers on the seismometer of legal discourse. This is particularly remarkable at the federal level, given that the only tribunal with authority to resolve conflicts with nationally binding effect—the Supreme Court of the United States—has actually reduced its decisional output to half of what it was in 1975. Is this a problem? And what about uniformity in state systems?

Finally, issues of volume, process, and delegation of responsibility aroused great concern among prominent judges, lawyers, and academics in the 1970s. Today, there is little outcry today over the appellate shortcuts that once aroused so much dismay. Is this because people were overreacting to the phenomenon of rapid growth? Or has the quality of appellate justice deteriorated through incremental steps that have gone unnoticed?

The federal Multiethnic Placement Act (MEPA) significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child’s foster care or adoptive placement on the basis of race, color, or national origin. Federal officials have interpreted MEPA as barring public agencies from routinely and systematically considering race when placing children in particular foster homes. In other words, MEPA precludes these agencies from pursuing children’s interests through a policy or practice of matching a child’s race with that of his or her foster parent.

To date, commentators who have examined MEPA have focused their attention on identifying and weighing the benefits and harms of transracial adoption for minority children and communities. As a consequence, they have not addressed the impact of MEPA on foster care placement decisions in any detail.

In contrast, this article examines foster care placement decisions. More specifically, this article uses behavioral biology research on kinship cues and social psychology research on in-group favoritism to formulate a hypothesis that has implications for MEPA’s prohibition on the routine consideration of race in making foster care placement decisions. Namely, children placed with non-kin, same-race foster parents are likely to be safer and healthier than children placed with non-kin, different-race foster parents. The article calls for a test of this hypothesis, explains how such a test may proceed, and discusses possible implications for law and policy addressing race and foster care.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters.