NewYorkUniversity
LawReview
Current Issue

Volume 79, Number 4

October 2004
Articles

Gibbons

Norman R. Williams

In Gibbons v. Ogden, the first Supreme Court decision to discuss the Commerce Clause, Chief Justice John Marshall endorsed the notion of a Dormant Commerce Clause but refused to adopt it as constitutional principle. In this article, Professor Norman Williams answers why Marshall hedged on the Dormant Commerce Clause. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress’s affirmative regulatory power under the Commerce Clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. This reassessment resolves an otherwise inadequately explained historical puzzle regarding the Marshall Court and sheds light upon contemporary debates regarding popular constitutionalism and the interpretive role of the Supreme Court.

The Quiet “Welfare” Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law

David A. Super

Cash-assistance programs have long been a focus of both liberal and conservative efforts to make symbolic statements. In this regard, the 1996 dismantlement of federal entitlement to cash assistance was nothing new. Although the 1996 welfare law also made deep cuts to in-kind programs, such as food stamps, these programs had less symbolic significance and hence were lessoften the target of public attacks. This lower political profile gave the Food Stamp Program room to find positive ways to adapt to the key themes that drove the enactment of the 1996 welfare law.

In the 1996 welfare law’s wake, the Food Stamp Program might have emulated the transformation of cash-assistance programs. Alternatively, it might have adopted a defensive posture. Instead, its supporters transformed it from an adjunct to discredited cash welfare programs into a stable support for low-wage workers. This both helped meet a crucial need of low-income families and improved the program’s political appeal. It also demonstrated that the goals of promoting work, devolving authority to states, and safeguarding program integrity can be achieved in positive ways.

The new Food Stamp Program promotes work through incentives more than sanctions. Its incentive structure changed to encourage states to improve access for low-wage workers, and states received flexibility to make those kinds of innovations rather than ones that would destabilize the program’s national benefit structure. Additionally, enforcement efforts deemphasized minor accounting issues having little bearing on the program’s integrity. Ultimately, these efforts were so successful that President Bush and conservative Republican senators pushed substantial benefit increases through Congress. This success may be a model for the survival and expansion of other programs.

Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII

Camille Gear Rich

Courts interpreting Title VII have long treated race and ethnicity as biological, morphological concepts and discrimination as a reaction to a set of biologically fixed traits. Meanwhile, they have rejected claims concerning discrimination based on voluntarily chosen physical traits or “performed” behaviors and that communicate racial or ethnic identity. Yet race and ethnicity are effectively produced—that is, they do not exist until one is socially acknowledged as possessing socially coded racial or ethnic markers, whether they are fixed physical features, voluntary appearance choices, or behaviors. This Article argues that it is error to distinguish between Title VII cases concerning morphological as opposed to voluntary racially or ethnically marked features, as the discriminator’s motives and the effects of her behavior are the same. Moreover, the morphological model of race/ethnicity is fundamentally contradicted by contemporary biological and sociological studies on race, discrimination studies, and identity performance theories, which indicate that individuals actively work to “perform” racial and ethnic status regardless of, and sometimes in spite of their morphological traits. Drawing on these studies, this Article shows that courts must hear discrimination claims based on voluntary features if they are to provide a more credible analysis of modern forms of discrimination.

Comments

Lepage’s v. 3M: An Antitrust Analysis of Loyalty Rebates

Joanna Warren

In its en banc decision in LePage’s Inc. v. 3M, the Third Circuit held that a 3M loyalty rebate program, which provided above-cost price discounts to customers who purchased multiple 3M product lines, violated section 2 of the Sherman Act. Prior to this decision, many practitioners and scholars understood the antitrust case law to hold that a strategic pricing scheme would not violate section 2 so long as the discounted prices remained above cost. The Third Circuit found that this test applies only to predatory pricing cases, and ruled that claims alleging exclusionary conduct other than predatory pricing—as it characterized 3M’s loyalty rebate program—are cognizable under section 2 even without a showing of below-cost pricing. The Supreme Court recently denied certiorari in LePage’s, leaving the issue in the hands of the lower courts. In this Comment, Joanna Warren criticizes the Third Circuit’s decision as lacking sufficient economic analysis of the rebate scheme and providing unclear guidance for addressing future claims. She argues for the adoption of a test that would recognize above-cost pricing as generally legitimate while invalidating schemes that threaten to eliminate equally efficient competitors from the marketplace.

Lectures

Judicial Methodology, Southern School Desegregation, and the Rule of Law

The Honorable David S. Tatel

Madison Lecture

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”‘ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of “judicial activism.”

Notes

The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History

Stephen H. Yuhan

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President’s power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President’s appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.

The Informal Experimental Use Exception: University Research After Madey v. Duke University

Cristina Weschler

A recent decision of the Federal Circuit, Madey v. Duke University, highlights the extremely limited protection granted to universities conducting noncommercial research from claims of patent infringement. The proper scope of the experimental use exception has been hotly debated among legal scholars, with many asserting that a broad defense is necessary to allow universities to freely conduct valuable experimental science and basic research. This Note examines the structure of university research in an effort to explain why, despite any significant legal protection, it is often in the interest of patent holders to allow infringing noncommercial research to continue unchallenged. Specifically, the commercial ties that exist between universities and for-profit entities serve to protect academic noncommercial research. While providing universities with less protection than a strengthened common law or statutory defense, this nonlegal “informal” research exception performs much the same function as a recognized experimental use exception.

The Domestic Dog’s Foreign Tail: Foreign Relevant Conduct Under the Federal Sentencing Guidelines

Valerie S. Roddy

In this Note, Valerie Roddy studies the continuing hesitancy of U.S. courts to include foreign relevant conduct in federal sentences, despite the expansive inclusion of domestic relevant conduct. Roddy analyzes the courts’ principal concerns and concludes that the distinctions that courts are drawing between foreign and domestic relevant conduct are illusory. She argues that to achieve consistency in sentencing and proportional sentencing for international defendants, foreign and domestic conduct must be treated identically. Finally, she contends that distinguishing foreign relevant conduct and subjecting it to a special analysis is best viewed as a means of retaining a measure of discretion in a federal sentencing system struggling with both the potent effect of relevant conduct on sentences and the shrinking judicial discretion over sentences.