Volume 75, Number 2

May 2000

Governments, Citizens, and Injurious Industries

Hanoch Dagan, James J. White

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments’ entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens’ injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments’ claims, and how takings law can be used as a check against governmental abuse.

Black Like Me? “Gangsta” Culture, Clarence Thomas, and Afrocentric Academies

Eleanor Marie Lawrence Brown

In this Article, Eleanor Brown seeks to shift the framework through which we view Afrocentric academies. In the spirit of Justice Clarence Thomas’s concurrence in Missouri v. Jenkins, Brown proposes that Afrocentrism represents an innovative educational response to the crisis in urban black communities. Applying social psychological literature, she argues that poor urban environments are ill equipped to provide the intersubjective reinforcement that is essential to healthy identity formation. A significant proportion of black youth have developed an alternative means of validating themselves, adopting a core of “oppositional” or “gangsta” norms that they associate with being authentically “black.” A primary feature of these norms is the rejection of mainstream opportunity-enhancing behaviors, such as educational achievement and law abidance. Drawing on the philosophical insight that black youth who privilege a detrimental picture of themselves are essentially being misrecognized, Brown suggests that Afrocentrism may be viewed as an attempt to recognize properly black youth. She outlines an Afrocentric curriculum that articulates a vision of black culture as constituted by a history of political struggle and promises to meet the intersubjective needs of black youth. Addressing several liberal criticisms, including the concerns that Afrocentrism undermines healthy participation in the body politic and constrains individual autonomy, Brown concludes by offering a compromise: Liberal educational goals should predominate during primary education and an Afrocentric curriculum should guide secondary education.


Derrick Bell’s Toolkit—Fit to Dismantle That Famous House

Richard Delgado

Derrick Bell Lecture

Does United States antidiscrimination law embrace a black/white binary paradigm of race in which other, nonblack minority groups must compare their treatment to that of African Americans in order to gain redress? In this Derrick Bell Lecture, Professor Richard Delgado argues that it does, and that other minorities also fall from time to time into the trap of exceptionalism, placing their own experiences at the center of discussion. Taking as his text a recent chronicle by Derrick Bell, Bluebeard’s Castle, Professor Delgado argues that narrow binary thinking—regardless of the group that engages in it—weakens solidarity, reduces opportunities for coalition, deprives one group of the benefits of the others’ experiences, makes one overly dependent on the approval of the white establishment; and sets one up for ultimate disappointment. The black/white binary, in short is bad for blacks, just as her foolish fixation on the gloomy noble of operatic fame finally doomed Judith, the heroine of Bluebeard’s Castle.


Wielding the Sledgehammer: Legislative Solutions for Class Action Jurisdictional Reform

Thomas Merton Woods

In this Note, Thomas Woods examines recent congressional proposals that would allow virtually all class actions to be filed in or removed to federal court. Woods begins by analyzing the problems of forum shopping and overlapping classes in current practice. Woods then argues that while the congressional proposals would alleviate these problems, the proposals would exacerbate federalism and docket congestion concerns. Woods concludes with a proposal for expanding the exceptions to federal jurisdiction proposed by Congress.

Using the Spending Power to Circumvent City of Boerne v. Flores: Why the Court Should Require Constitutional Consistency in Its Unconstitutional Conditions Analysis

Brett D. Proctor

Congress’s broad Spending Clause powers have the potential to circumvent federalism-based limitations on its other enumerated powers by requiring state complicity in federal schemes. When these schemes encroach on individual rights, the states’ ability to fulfill their federalist mandate to act as a check on the national government is limited. In this Note Brett Proctor uses the example of the Religious Liberty Protection Act of 1999, which would rely on the spending power to rehabilitate the Religious Freedom Restoration Act of 1993, to illustrate this danger. Proctor argues that the Supreme Court should prohibit indirect federal encroachments on rights and liberties, but that current spending power doctrine is unable to restrict some of these encroachments in light of judicial deference–deference based on countermajoritarian concerns–to legislative interpretations of the Constitution. Proctor suggests that the countermajoritarian difficulty dissipates in the context of conditional grants to states. He thus proposes a new, supplemental test that would deny Congress the power to compel state behavior via a conditional grant where such state behavior conflicts with an equality- or liberty-bearing provision of the Constitution, even if the state constitutionally could behave as Congress demands were it acting fully of its own volition.

The “Republic of Taiwan”: Legal-Historical Justification for a Taiwanese Declaration of Independence

Christopher J. Carolan

Taiwan exists in the international arena as a fully independent state in form, but it has never declared itself independent. Taiwan’s reticence to take this step is caused by the People’s Republic of China’s claim that Taiwan is a “renegade province” of China. In this Note Christopher Carolan argues that an international law-based solution should be applied to determine whether Taiwan has a legitimate aspiration
to declare independence. This approach takes into account the history of Taiwan- China relations, which shows that–except for brief periods–Taiwan has long had a separate political existence apart from China. Carolan contrasts the claim that Taiwan properly belongs to China because of shared ethnic and cultural ties with post-World War II events that have created in the Taiwanese a strong, predominant preference for continued separation from China. He argues that international law is an effective means to settle international disputes objectively, especially as compared to an alternative rooted not in justice but in power. Finally, he takes account of international law on self-determination and statehood to show that by these standards, Taiwan already exists as a de facto independent state.