Note

Democratic Failure and Emergencies: Myth or Reality?

Academics have long debated the ability of a democratic government to respond to emergencies. This historical debate has assumed new significance as scholars attempt to respond to the challenges presented by the twenty-first century and the “War on Terror.” Commentators have reached different conclusions regarding how a government should operate during times of emergency, but each commentator’s ultimate conclusion must first answer an underlying, prior question: What exactly happens to democracy during times of emergency?

Traditional emergency-politics theorists explain democratic government during emergency with the “democratic failure theory.” But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have attacked the “democratic failure” theory, asserting that nothing relevant happens during an emergency to inhibit the ability of a democratic government to function. Certainly, they concede, minorities might “lose” during emergencies, but they do in normal times as well.

This Note, while remaining ambivalent about a broad application of the traditionalists’ democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. Without contesting that those factors were relevant in the internment decisions, this Note argues that individuals of Japanese descent were interned primarily because an anti-Japanese West-Coast coalition successfully exploited the democratic failure caused by the emergency of World War II. The coalition had long sought these exclusionary measures, but before World War II, those measures lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition finally harnessed the political capital necessary to achieve its exclusionary goal, if only temporarily.

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

The course of federal employment discrimination litigation is replete with instances of lower federal courts attempting to define and apply broad rules that, usually, though not always, have the effect of defeating plaintiffs’ claims of discrimination. The same-actor inference, first applied by the Fourth Circuit Court of Appeals 1991, aptly exemplifies this trend. The essence of the same-actor inference is that an individual who harbors discriminatory animus toward a protected class of persons would not knowingly hire a member of that class and then fire that same individual on account of his or her protected status. Since 1991, a circuit split has emerged on the question of who should evaluate the import of same-actor facts in a given case. Several circuits have followed the Fourth Circuit and employ the inference to justify summary judgment, directed verdicts, and judgments notwithstanding the verdict, all in favor of defendant-employers. Other circuits, in contrast, expressly reserve to the jury the decision regarding how to weigh same-actor facts. The Supreme Court has yet to resolve this split. This paper argues that the history of employment discrimination litigation, the Civil Rights Act of 1991, and public policy considerations require that it be juries, not courts, who determine the import of same-actor facts in a given employment discrimination case.

Rethinking Ableman v. Booth and States’ Rights in Wisconsin

Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Court’s theory of federalism. This Note presents a new interpretation of the states’ rights movement in Wisconsin that necessitated the Supreme Court’s ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with states’ rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed states’ rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used states’ rights against the more moderate Democrats. As a result, states’ rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use states’ rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.

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