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Current Issue – 22.1

Articles

Preventing Balkanization or Facilitating Racial Domination: A Critique of the New Equal Protection
Darren Lenard Hutchinson

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists have defended the Court’s discarding of group-based equal protection. They argue that social justice advocates should pursue redress for vulnerable groups by asserting dignity-based liberty claims under the Due Process Clause. In a widely cited article, Professor Kenji Yoshino argues, in fact, that dignity is the “New Equal Protection.” Applying insights from “social capital theory,” Yoshino contends that group-based equal protection causes “pluralism anxiety”—or a fear of “balkanization” among the justices. Dignity arguments, by contrast, do not present such concerns because they rest on appeals to universal justice.

This Article contests the view that the Court should discontinue class-based equal protection in order to maintain social cohesion. Leading social capital theorists find that multiculturalism, though temporarily divisive (if at all), provides many long-term benefits. Also, numerous social psychology studies find that racial and ethnic inequality cause far more social disruption than group-based identities. This empirical research also demonstrates that the Court’s equality doctrine mirrors the views regarding race relations held by most whites, while contradicting the perspectives of most persons of color. The enforcement of white majoritarian viewpoints should not serve as the foundation for an equality doctrine. Antisubordination theory, by contrast, would provide more egalitarian outcomes and should inform Court doctrine.


Bridging the Gap Between Unmet Legal Needs and an Oversupply of Lawyers: Creating Neighborhood Law Offices—The Philadelphia Experiment
Jules Lobel and Matthew Chapman

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with.

This Article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, lawyering where the attorney prioritizes the client, works and is active in the community he or she seeks to serve, practices preventive lawyering, and charges fees that a working-class or middle-class person can afford. This Article then pulls this Philadelphia Experiment forward to our current time and discusses it in the light of other, more recent developments, including rural lawyer programs, the medical residency model, and crowd funding platforms. In doing so, this Article hopes to equip today’s practitioners with ideas they could utilize to help bridge this gap between unmet legal needs and an oversupply of lawyers.


The Impulse Towards Individual Criminal Punishment After the Financial Crisis
Robert Quigley

There is a widespread and influential account that the 2007–08 financial crisis was caused by the criminal acts of high-level banking executives, and that the failure to punish these acts delegitimizes our legal system and paves the way for future crises. This Article is the first piece of academic legal literature to assess this account in detail. It concludes that though high-level wrongdoing connected with the crisis may have been distressingly underprosecuted, it is neither a necessary nor a sufficient cause of the crisis. Economic regulation, not prosecution, is the surest way to prevent future crises.


Note

Made in America: Medical Tourism and Birth Tourism Leading to a Larger Base of Transient Citizenship
Tyler Grant

Transnationalism has become a much larger issue as international travel has increased, and countries are incentivized to ease border controls in order to boost their economies. At times, this comes at a cost. Birth tourism and medical tourism are becoming trends in the United States and Taiwan and are producing differing consequences that policymakers will have to address.

Many policymakers in the United States hoped that lifting travel restrictions would spur tourism. While perhaps true, as a result of this policy change, more foreign citizens are now able to perform a cost–benefit analysis of other nations’ laws in the hopes of relocating for benefits. With the Fourteenth Amendment to the U.S. Constitution providing citizenship to those born in the United States, thousands of pregnant women legally travel to the United States every year to give birth. This birth tourism ensures those children access to public education and healthcare in the United States. Additionally, U.S. citizens with dual citizenship in countries with affordable national health care, like Taiwan, travel overseas for medical treatment with minimal costs for reentry into those foreign health care systems. Such medical tourism increases medical and educational costs for taxpayers in the countries that provide generous government-sponsored health care. As globalization becomes more prominent, the amount of individuals looking across borders for healthcare and educational opportunities will continue to grow. When individuals cross borders for these opportunities, economic or social strain can result. This Note highlights this tension and discusses how policymakers on the ground are responding to an escalating situation.