Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass

Sheldon Bernard Lyke*

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Introduction

On October 10, 2012, the Supreme Court of the United States heard oral argument in Fisher v. University of Texas at Austin[1]—the latest challenge to race-conscious affirmative action university admissions programs.[2] Court watchers highlighted that during the hearing, the Justices spent considerable time attempting to understand the meaning of a “critical mass” of minority students enrolled in universities and registered for individual courses.[3] Critical mass emerged from the Justices’ questions in oral argument in a sort of catch-22. On one hand, it faced critiques that it lacked a quantifiable threshold that judges could review. Any attempts, however, to quantify critical mass would place the concept into the unconstitutional realm of impermissible quotas.

The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout

Seth Barrett Tillman*

Editor's Note: This Essay is Part III of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here, and Part II is available here. Part IV of the exchange is forthcoming July 2013.

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I. The Debate So Far

In her 2009 Cornell Law Review article, The Anti-Corruption Principle,[1] and in subsequent publications (including here on Northwestern University Law Review Colloquy[2]), Professor Teachout thoroughly analyzed the text of the Constitution and the records of its framing, primarily relying upon three clauses[3]: the Ineligibility Clause, the Incompatibility Clause, and the Foreign Emoluments Clause.[4] This last clause, the Foreign Emoluments Clause, proscribes (at least some) United States officials from accepting gifts from foreign governments absent congressional consent. Teachout's key insight was to analogize corporate contributions and spending in domestic elections to these proscribed foreign government gifts. Like foreign governments, domestic corporations do not owe a duty of loyalty to the United States. A domestic corporation's duty of loyalty is owed to its stockholders, not to our polity as a whole. On the strength of this analogy, the Foreign Emoluments Clause enjoyed pride of place in her analysis; or, at least, that is the way her paper was commonly understood.[5] Teachout observes that the purpose, if not the primary purpose, behind these three provisions (and that of many other constitutional provisions) was to prevent or limit corruption. On this basis, she suggests that the Constitution embodies a structural anti-corruption principle. At this very generic level of abstraction, Teachout and I agree.

Erie's International Effect

Michael Steven Green*

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In his important article, When Erie Goes International, Professor Childress addresses the marvelous question of the Erie doctrine's application in an international context.[1] In particular, Childress argues that Klaxon Co. v. Stentor Electric Manufacturing Co.,[2] which held that a federal court sitting in diversity (or alienage) must borrow the choice-of-law rules of the state where the federal court is located, should not apply when the federal court chooses between state law and the law of a foreign nation.[3] In this Essay, I have three points to make in response—one clarificatory and two critical.

The Contraception Mandate

Caroline Mala Corbin*

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Health care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.[1] Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.[2] This requirement—often called the "contraception mandate"—has generated a huge outcry, especially from the U.S. Catholic hierarchy.[3] Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths—such as schools, hospitals, and social services providers—are not.[4] It is the lack of an exemption for the latter organizations that has generated protests.

Grutter's Denouement: Three Templates from the Roberts Court

Ellen D. Katz*

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This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin,[1] a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger[2] upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.[3] The Roberts Court now appears ready to ditch the practice much sooner.

This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.[4] Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.

Reviving National Muffler: Analyzing the Effect of Mayo Foundation on Judicial Deference as Applied to General Tax Authority Guidance

Matthew H. Friedman*

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Introduction

The topic of judicial deference arises each time a court reviews the legitimacy of an opinion or regulation by an administrative agency to which Congress has delegated some rulemaking authority. Determining the appropriate deference standard is important because it sets limits on an agency’s quasi-legislative power and informs taxpayers and practitioners on the likelihood of challenging seemingly invalid administrative rulings. Noting the importance of the deference issue, Professor Kristin E. Hickman,[1] one of the foremost authorities on administrative law in the federal income tax context, wrote that "[d]rawing fine distinctions among deference standards may seem a purely academic exercise . . . [but] deference standards matter."[2]

For thirty-five years, the 1944 case of Skidmore v. Swift & Co. presented the primary method for judicial review of administrative guidance created under Congress's general grant of rulemaking authority.[3] In 1979, a new standard was created in what became known as the tax-specific deference standard of National Muffler Dealers Association v. United States.[4] Five years later, the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. that a separate and much more deferential standard should apply to final regulations drafted pursuant to a general grant of authority.[5] The Chevron decision cast doubt upon the viability of both Skidmore and National Muffler since it was unclear whether the decision applied to all regulations promulgated pursuant to general grants of authority and whether it applied to tax-related guidance. This confusion persisted until the Court decided two cases in 2000 and 2001 that distinguished between Skidmore and Chevron deference.[6] Unfortunately, the Court's distinction did not provide specific or uniform direction for the treatment of all general authority guidance and to this day the Court has failed to give clearer instruction.

A Tort Statute, with Aliens and Pirates

Eugene Kontorovich*

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The pirates of the Caribbean are back—not in another fantastical film, but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing the legal issues surrounding piracy. The crime has emerged as the test case for evaluating the major controversies about the reach of the ATS—namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Petroleum Co., justices of all persuasions invoked piracy as a paradigm or precedent,[1] as had the lower courts before them.[2] When the Court surprisingly delayed its decision, and instead called for new briefing and argument on the extraterritorial scope of the statute, it became even clearer that the battle over the ATS would be a naval engagement;[3] indeed, the briefs of the plaintiffs and numerous amici repeatedly refer to piracy as a paradigm.[4]

This Article examines the questions before the Court in Kiobel: the relevance of “piracies”—in the Constitution and at sea—to extraterritoriality and corporate liability under the ATS. Much of the discussion of piracy law in ATS cases has been inaccurate or incomplete.[5] Furthermore, the new attention to piracy should—but as yet has not—direct attention to pirates’ very own constitutional provision, the Define and Punish Clause,[6] which contains implicit limits on extraterritorial and, in particular, universal jurisdiction over international offenses.

Moderating Mayo

Bernard Chao*

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Introduction

Patent law has long held that laws of nature, natural phenomena, and abstract ideas are not patentable. At the same time, many patents cover applications that grow out of these fundamental concepts. Courts have recognized that such applications are patentable. Observers had hoped that the Supreme Court’s decision in Mayo v. Prometheus would illuminate the line between unpatentable concepts and patentable applications of those concepts. Unfortunately, the recent decision issued by the Supreme Court raises more questions than it answers.[1] Although the Court gave a variety of reasons to explain why Prometheus Laboratories’ (Prometheus) patents were not patent-eligible, the Court’s primary rationale involved dissecting Prometheus’ claim. The Court found that the limitations did not add “enough” to the law of nature that lies at the heart of Prometheus’ invention.

Because the Court never explained what “enough” is, critics have been quick to deride Mayo.[2] One commentator went so far as to say that the decision “creates a framework for patent eligibility in which almost any method claim can be invalidated.”[3] Although I agree with the Supreme Court’s ultimate decision, I am also concerned that its reasoning unnecessarily jeopardizes many deserving patents that have not previously been thought to have any vulnerability under 35 U.S.C. § 101—the federal patent statute that defines what types of subject matter may be patented.[4] By failing to provide a framework for determining when additional limitations can change an unpatentable concept into a patentable application, the Supreme Court has cast doubt on a host of less controversial patents. But the decision does not have to wreak the havoc that many fear it will. There is room for a more restrained understanding of Mayo.

 

Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Allen Rostron*

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When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas,[1] attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making.[2] Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.

Free Speech and Public Space After Occupy Wall Street

On February 28th, 2012, the Northwestern Law Review hosted a discussion between Professors Michael Dorf and Timothy Zick on the Occupy Wall Street movement, moderated by Colloquy Editor Michael Downey. What follows is a transcription of their conversation.