Archive | Law

Battle for the CFL Championship

While the impending move to the Post will certainly improve The Monkey Cage’s sports coverage (go Sox!), the headline here is, naturally, a bait and switch. It does not refer to our Canadian footballing friends but to the venerable Constitution Fantasy League – where contestants receive points for the boldness of their own Constitutional fantasy (with a substantial bonus if they put it into practice and achieve what scholar Richard Pious called a “frontlash.”)

Those of you with Barack Obama on your CFL roster have been nervous ever since he went to Congress regarding the use of force in Syria and even noted that “it’s important for us to get out of the habit of just saying, well, we’ll let the President kind of stretch the boundaries of his authority as far as he can.”  It appeared that Rep. (and Pres.-wanna-be) Peter King was going to stretch his lead in this fall’s standings.

But Obama made a bold bid for a comeback in Sunday’s matchups, claiming that the House failing to exercise its legislative powers “changes the constitutional structure of this government entirely.”

The context was an interview with ABC’s George Stephanopoulos which pivoted from Syria to the upcoming budget battle(s) – remember that fiscal year 2014 begins on October 1, and Congress has once again failed miserably to pass anything like a budget for the new year, having failed miserably to pass one for the present fiscal year now almost complete or most recent fiscal years for that matter. Obama was asked about the statutory debt limit, and the House Republicans’ threat to link an increased debt limit to Democratic concessions over spending levels overall and the roll-out of Obamacare. Obama said “ I will not negotiate…on the debt ceiling,” and continued:

“If we continue to set a precedent in which a president, any president, a Republican president– a Democratic president– where the opposing party controls the House of Representatives– if– if that president is in a situation in which each time the United States is called upon to pay its bills– the other party can simply sit there and say, ‘Well, we’re not gonna put– pay the bills unless you give us what our– what we want,’ that changes the constitutional structure of this government entirely.”

The problem is that the “power of the purse” is one of Congress’s crucial and inalienable powers. James Madison noted in Federalist 58 that it represents “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”  Even scholars such as past CFL champion John Yoo hold that the spending power is wholly legislative.

Now, defaulting on the full faith and credit of the United States is an idiotic idea. I can’t promote it as a “just and salutary measure.” But there are many members of Congress who think that reducing overall federal spending, and/or repealing the Affordable Care Act, are exactly that. The legislative power generally, and the power of the purse specifically, provides Congress leverage to make those kinds of bargains, or try to.  And using constitutional leverage does not change the constitutional structure of this government, even in part.


PS – One could argue that the debt ceiling is a separate process from the appropriations process (which is, of course, part of the problem, since debt issuance is tied to spending already passed into law.)  But both provide statutory guidance over the level of government spending, so I find it hard to separate out the debt limit from the power of the purse. Either way, how is one chamber failing to legislate something that changes the system? Bad policy outcomes – even really bad policy outcomes - reflect the challenges of operating within a separated system of checks and balances, rather than changing that system.

PPS – A reminder of a different argument about presidential power vis-à-vis the debt limit, from 2011 – I suspect we’ll be seeing this debate resurrected soon.

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Making Human Rights a Reality

Continuing my series on human rights, I want to highlight an important recently published book by Emilie Hafner-Burton[1] that deserves a much wider audience than it has received so far. Making Human Rights a Reality brilliantly conveys to an educated lay public what social scientists have learned about human rights abuse and how (not) to stop it . Moreover, it contains a number of sophisticated but controversial proposals to make the international human rights regime work better.

Emilie Hafner-Burton is a professor at the University of California at San Diego. She is one of the most prominent scholars in the field of human rights with an extensive academic publication record. She also won the International Studies Association’s 2012 Karl Deutsch award,which is handed out to a scholar under the age of 40 who is judged to have made the most significant contribution to the study of international relations and peace research.

The first part of the book examines the causes of human rights abuse. The chapters evaluate what political scientists have learned about the structural factors that provide incentives for abuse but it also examines lessons from psychology, anthropology, and criminology to understand why individuals and networks of individuals persist in abusing others. There are at least two general lessons that emerge from this. The first is that abuses persists when individuals rightly or wrongly believe that they will gain something from this behavior; not because abusers are psychologically or biologically abnormal. The second lesson is that the reasons these beliefs persist are quite varied across societies. In some places they stem from civil wars, in others from illiberal dictatorship and in yet others from legacies of violence or distrust that are difficult to break. A universal human rights system may be insufficiently tailored to adequately break the specific incentives that keep abuse alive in particular contexts.

The second part provides an overview of existing human rights institutions and of scholarly research into the effectiveness of these institutions. As I wrote last week, global human rights treaties at best have a modest effect in a smallish subset of states that does not include the world’s worst human rights abusers. Hafner-Burton rightly lauds the existing system for its achievements, including developing normative standards. Yet, she also argues, with Jacob Mchangama and Guglielmo Verdirame, that human rights treaties have proliferated too much and that this threatens the legitimacy of the human rights system as a whole (see my views on this here). Consequentially, activists and states that care about human rights improvement should not invest in more global human rights treaties that define new rights.

Instead, Hafner-Burton favors a more decentralized solution with a central role for “stewards:” states that have for one reason or another decided that improving the human rights of others should be a central component of their foreign policies. She argues that these steward states waste precious resources by investing in ineffective strategies and institutions. She advocates several avenues for improving the efficiency of human rights policies. States should better localize which agencies within a state are primarily responsible for abuses or what the causes of abuse in a specific context are. Moreover, triage should lead states to invest more heavily in areas of human rights promotion where the evidence suggests that it is most likely to work. In essence, human rights policy should undergo a similar revolution to the one attempted in development and foreign aid where attention for project evaluation and tailored investments has been a staple of the policy debate for over a decade.

This argument is controversial in part because it moves the human rights system away from the cherished principle of universality and highlights a not so cherished principle among human rights advocates: state power. I can’t possibly do justice to all the nuances here and I hope to take on some of the recommendations more critically as my series continues. For now, let me simply recommend that you go read the book (chapter one is freely available from Princeton University Press).

[1] Emilie is a friend. In the recent past people have gotten upset when I insert disclosures in a post so I am using a footnote this time. Not sure what the developing norms are on this. Anyway, her credentials speak for themselves.

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Do Popular Votes on Rights Create Animosity Toward Minorities?

Continuing our new series of collaborations with political science journals, we are pleased to present the following guest post from University of Western Washington political scientist Todd Donovan to discuss his article with University of Iowa political scientist Caroline Tolbert ”Do Popular Votes on Rights Create Animosity Toward Minorities?” that appears in the current issue of Political Research Quarterly.  In conjunction with this post, SAGE will make the article freely available to all for the next 30 days; you can download it here.


Americans regularly make major decisions about minorities and minority rights via the purely majoritarian process of direct democracy.   Conflict over the substance of these policies occasionally reaches the US Supreme Court, but effects of the process of direct democracy on perceptions of minorities receive little attention.  My recent study of campaigns against same sex marriage (Minnesota Law Review), and research I’ve conducted with Caroline Tolbert published recently in Political Research Quarterly, highlight some concerns about the process.  Campaigns against a minority right appear similar to campaigns against the minority itself, as campaigns target the minority as a threat to the majority.

Voters have banned the sale of land to Asians, repealed fair housing legislation, repealed school desegregation, prohibited undocumented workers from receiving public services, and repealed public affirmative action programs. Thirty one states – including California with Prop. 8 in 2008 – voted to ban same sex marriage.  Beyond any policy effects, our study of public opinion found that the anti-marriage campaigns affected what people thought about lesbians and gays. We found animosity toward lesbian and gays increased in 2004 among religious people living in states where marriage was on the ballot.

When the constitutionality of these popularly enacted policies are challenged in court, the primary legal issues may involve how the laws are being applied, and 14th Amendment equal protection claims.  These were at issue in Romer v. Evans, when the Court overturned Colorado’s voter approved law prohibiting “special rights” for lesbians and gays.  This June, the Court largely avoided this when, in Hollingsworth v Perry, they decided that Prop. 8’s proponents lacked standing to appeal an earlier district court ruling.

Neither of these cases gave explicit consideration to effects of the process of direct democracy on a minority group.   This may change next session, when the Court considers a Michigan initiative that restricted affirmative action.  One issue in Schuette v Coalition to Defend Affirmative Action is whether the initiative changed policymaking affecting a racial minority (university admissions policy is now made via the ballot box) in a way that burdens the minority’s ability to affect the policy.  Our research suggests the effects direct democracy may go deeper – if campaigns against a pro-minority policy stigmatize public perceptions of the minority group that benefits from the policy.

Opinion polls suggest that if Prop. 8 were put before California voters today, same sex marriage would be approved.  Indeed, same sex marriage was approved by voters in Washington, Maine, and Maryland in 2012.  Given this rapid and recent change in attitudes, a campaign against same-sex marriage (and by extension, against lesbians and gays) today may not have the capacity to stigmatize as it did before.  Yet this need not mean that there isn’t potential for campaigns over other policies that benefit a minority to stigmatize public perceptions of the targeted minority group.  A July 2013 Quinnipiac poll found that nearly three-quarters of Americans felt that universities should not be allowed to use race as a factor in admissions.  A 2011 poll found most respondents agreeing that Muslims “undermine American culture.”  In the context of attitudes such as these, direct democracy campaigns may not only produce outcomes that constrain the rights and influence of minorities, but may also generate increased animosity toward the group.

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What Should We Expect From International Human Rights Institutions?

As I announced yesterday, I plan to do a series of blog posts on what we know about how to improve the human rights of people abroad and how this knowledge can help us do a better job in the future. I will focus a lot on international human rights institutions, which are treaties, like the Convention Against Torture, in which states enter into legal obligations to protect a particular set of rights as well as the associated institutions that help enforce those obligations. These institutions vary from powerful international courts, such as the European Court of Human Rights, to relatively toothless UN monitoring bodies.

Whenever I teach about international human rights institutions my first task is to lower expectations. International human rights treaties inevitably contain language that expresses lofty ideals and grand ambitions. The point is not just that these goals are unlikely to ever be fully attained but also that treaties are a very limited policy tool.  If we wished to give policy advice to governments interested in improving their human rights record, we should tell them to democratize, to develop economically, to create a strong independent legal system, and to stop having civil wars.  Signing treaties does not enter the top ten of most important things countries could do. Indeed, countries like the United States have a relatively good human rights record without ratifying many human rights treaties.

So, why do we care about international human rights treaties and associated institutions? To start with, it turns out that we have very limited foreign policy tools to help countries become economically developed stable constitutional democracies that do not have civil wars. Even very expensive and intrusive tools, such as military interventions, more often than not fail to achieve those goals. Violating human rights is often central to a government’s strategy for staying in power or it may be central to the domestic power of an agency over which the civilian government has imperfect control (police, military, paramilitaries, etcetera). This is not behavior that is easy to change.

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The Danger of Human Rights Proliferation

Over at Foreign Affairs, Jacob Mchangama and Guglielmo Verdirame argue that international human rights institutions have proliferated to the extent that they have become counter-productive:

If human rights were a currency, its value would be in free fall, thanks to a gross inflation in the number of human rights treaties and nonbinding international instruments adopted by international organizations over the last several decades. These days, this currency is sometimes more likely to buy cover for dictatorships than protection for citizens.

The authors hit on something important although I am not terribly impressed with many of the examples. Yes, we all know that the UN Human Rights Council and its predecessor are and always have been political institutions where countries vote partially based on geopolitical interests rather than sincere interest in improving the human rights of others. Yet, it is not clear that this provides real cover for dictators (although here is a theory how that may work) and there is at least some evidence that even highly political exercises of shaming may exert a sanctioning effect.

They mention that the European Court of Human Rights has gotten into trouble with the United Kingdom. This is accurate but it was over the Court’s interpretation of voting rights and torture; not new fancy rights that are outside of the traditional core of human rights.

Moreover, I think they exaggerate the difference with the past:

Respect for human rights around the world would likely be stronger if human rights law had stuck to a narrower and more clearly defined group of rights.

Go read the 1948 Universal Declaration of Human Rights. It includes a right to “rest and leisure,” a right to “enjoy the arts,” and so on. There has never been a consensus over what should or should not be included in human rights. Rights are almost never clearly defined and are always open to interpretation by political and legal actors.

What is true, of course,  is that many of these rights and others are now embedded in treaties and conventions whose effects are unclear. I don’t think we fully understand if and how this proliferation affects the protection of rights that many people think should have priority. Emilie Hafner-Burton’s new book Making Human Rights a Reality investigates this issue and similarly argues that stakeholders that are willing to put resources into the struggle to improve human rights should set priorities.

I am planning to do a series of posts over the next few weeks based on this book and some other recently published scholarly work that sets out what we know about the effect of international human rights institutions and what lessons we should draw from this knowledge about reforming these institutions. That these institutions are in need of reform is something I think most of us can agree on. The answer to just refocus on “ institutions and treaties that embody the ideals that inspired the human rights movement in the first place” is too simplistic and overly glorifies the past.

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Is the Criminal Justice System Colorblind? The Separate Realities of Blacks and Whites

I’ve been remiss in linking to my latest post at Wonkblog.  It is an interview with political scientists Mark Peffley and Jon Hurwitz about their work on race and perceptions of the criminal justice system and the implications of this work for Trayvon Martin’s death and George Zimmerman’s acquital.  Here is an excerpt:

Q: Does a case like Trayvon Martin’s make the “realities” of blacks and whites more separate then?

A: Our research shows how events like the Trayvon Martin case widen the racial divide in the U.S.  When high-profile, incendiary events smack of racial profiling and/or police brutality against people of color, blacks, who view the system as discriminatory and distrust law enforcement, are deeply suspicious about whether justice will prevail. Whites who view the system as color-blind and are much more trusting of the police, discount the likelihood of police misconduct or racial bias when the suspects or victims are African American. Events like the Trayvon Martin case reinforce and intensify more generalized judgments about the fairness of the system.

More in the post.  Peffley and Hurwitz’s recent book is Justice in America: The Separate Realities of Blacks and Whites.



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The Strange Court Case of Aleksei Navalny: What Comes Next?

The following guest post is from McGill University political scientist Maria Popova, the author of Politicized Justice in Emerging Democracies: a Study of Courts in Russia and Ukraine (Cambridge University Press, 2012).


On July 18th, Russia’s best known oppositionist, anti-corruption blogger Aleksei Navalny was convicted of embezzlement and sentenced to 5 years in prison.  His co-defendant, Pyotr Ofitserov received 4 years.  After Judge Blinov from Kirov’s Leninskii District Court finished reading the verdicts, the convicted were taken into custody and sent to jail, where they would await the results of their appeals.  Few were surprised by the guilty verdicts, but many had expected the sentences to be suspended, rather than effective. Certainly, no one expected what happened next.  On July 19th, the prosecutor asked the court to release Navalny and Ofitserov on bail.  The prosecutor argued that Navalny had a constitutional right to contest the September 2013 Moscow mayoral election, for which he had been registered as an official candidate only a couple of days earlier.  Judge Blinov immediately granted the prosecution’s request and by the end of the day Navalny and Ofitserov were back in Moscow, where they addressed a crowd of jubilant supporters.  The unprecedented nature of what happened in the provincial Russian courtroom cannot be overstated.  Releasing a convicted person on bail, although possible under the Russian Criminal Procedural Code, is an exceedingly rare occurrence.  Rare, as in there may have been a handful of cases in recent memory.  A request for bail from the prosecution, rather than from the defense, experienced Russian jurists claim, is a first!

The convictions and the swift bail release are perceived in Russia and abroad as an indication of the subordination of the judiciary to political incumbents, rather than as a reflection of the vagaries of the legal process.  The bail release is not an unequivocal victory for the defendants, but, at best, a short respite.  Russian acquittal rates are below 1% and appellate courts usually decrease, rather than increase, this percentage.  At worst, as a prominent Russian lawyer, Genri Reznik, put it, by convicting and then releasing Navalny, the regime showed who was boss.  With the convictions the regime turned the court from an adjudicative organ into a punitive one and with the bail release it turned the prosecution from an accusatory organ into one employed by the defense  (text in Russian available here).

What comes next for Navalny?  He has re-stated his intention to contest the Moscow mayoral election and his determination to win the race.  However, he may not be able to finish the campaign and stand in the election due to the conviction that is now hanging over him.  Russian municipal election law prohibits persons with convictions “that have entered into legal force” from standing in an election.  If and when Navalny’s conviction “enters into legal force”, the Moscow election commission will be legally obligated to take down his registration and remove him from the ballot.  The question is when the conviction can or will enter into force.  According to the Russian Criminal Procedural Code, first-instance court convictions enter into force 10 days after they have been issued, if there is no appeal filed.  We can assume that Navalny will appeal.  Then the conviction enters into force on the day the appellate court upholds it.  If the appellate court in Kirov upholds his conviction before election day (September 8th), Navalny will be out of the race and will not be allowed to continue campaigning.  The prosecution and the Kirov court moved very quickly with the bail hearing, so it appears possible that the appellate court could rule on the appeal soon.

Generalizing from the Navalny trial about the functioning of the entire Russian judiciary is problematic, not only because this is only one case, but also because of the very high salience of the Navalny prosecution.  Research that goes beyond the high-profile cases has painted a more mixed picture of the performance of the Russian judiciary.  Yes, there is evidence that Russian judicial independence is circumscribed by strong discipline within the judicial hierarchy, court financing by the regional authorities, practices of ex parte communication, and other structural conditions (Solomon Jr and Foglesong, 2000; Baird and Javeline, 2010; Ledeneva, 2008; Popova 2012).  But Russian courts at all levels are also routinely used by comparatively high and ever increasing numbers of Russian citizens to settle civil and business disputes and to seek redress for the unlawful behavior of state representatives (Solomon Jr. 2004, Hendley, 2002, 2004, Trochev 2012, etc.).  Moreover, a comparison of Russian and Ukrainian judicial output in the late 1990s-early 2000s suggests that in two important legal issue areas (electoral registration disputes and defamation lawsuits against media outlets), the Russian courts were less politicized than the Ukrainian courts (Popova, 2010; Popova 2012).  In Russia, politically powerful plaintiffs had less advantage over other plaintiffs when they went to court.

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Did Florida’s Stand Your Ground Law Increase Firearm Homicides?

Figure1-Florida-firearmhomicideAt least two empirical papers have found that Stand Your Ground (SYG) laws like the one in Florida are associated with an average increase rather than a decrease in firearm homicides. This plausibly occurs because the deterrent effects of such laws are outweighed by the increase in the range of legal defenses for the use of lethal violence that become available to attackers. While SYG laws are meant to protect defenders, the absence of impartial witnesses makes it difficult in many cases to determine who ought to have had a “reasonable fear” of whom.

Anton Strezhnev (a former student and current co-author of mine) provides some interesting additional evidence for the Florida case. You should read his full post to comprehend the methodology used (based on the synthetic control method) but here is his description of the graph above:

The figure above plots the gap in firearm homicide rates between the actual time series and the estimated synthetic control for Florida and for each of the control states. Relative to the distribution of relevant placebos, the Florida effect stands out post-2006. Florida’s is the most unusual line in the set and from 2007-2010 shows a positive deviation from the control greater than any of the placebo tests. Although the pool of control states is somewhat small, limiting the number of possible placebo tests, the trajectory of Florida’s homicide rate is certainly unusual and difficult to attribute to pure chance.

So, compared to a group of states that had similar homicide rates prior to 2005, Florida’s homicide rate shot up unusually after 2005 (and in a way that cannot easily be accounted for by observed variables). One can never definitively proof a causal effect with aggregate data of this type but the data appear consistent with the claim that this law has not served the purpose of reducing homicides.

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Trayvon Martin and the Burden of Being a Black Male

We welcome another guest post from Corrine McConnaughy, a political scientist at The Ohio State University.


Could race could have played any role in the confrontation that resulted in Treyvon Martin’s death and in the jury’s interpretation of the evidence  that led them to acquit George Zimmerman?  Answering those questions is very hard, in part because we do not have direct, objective evidence on exactly what occurred between Martin and Zimmerman, nor statements from the jury about their thought processes. What social scientists know about race, however, questions whether even that evidence would give us the answer. “Race” can work in ways that are exceedingly difficult to detect. White opinion of blacks contains important implicit biases as well as stubbornly persistent explicit prejudice.  Although no firm conclusions are possible about Zimmerman and Martin, I will note two features of their altercation and Zimmerman’s trial that could have exacerbated implicit bias.  And I will describe new research showing how explicit prejudice toward blacks singles out black males like Trayvon Martin in particular.

Many studies have demonstrated a decline in overt racism over the last several decades.  White Americans have become less likely to say that they believe that African Americans are inherently inferior to whites, such as that they are less intelligent or hardworking than whites, and more likely to support contact with blacks, such as by living in neighborhoods with a significant number of black residents and by inter-racial marriage. Negative sentiments about blacks still exist, of course. The percentage of whites who express overt racism hovers around 20 to 30 percent. Yet, clearly many white Americans have moved past racism, making it plausible that the individuals involved in the Zimmerman trial—Zimmerman himself, the lawyers, the jurors—had no racial bias motivating their thoughts and actions.

Stopping at overt racism, however, is stopping far too short. Research on aversive racism uses implicit measurement strategies to show that even those white Americans that express racially egalitarian views are not immune from holding—and acting upon—racial prejudice. Negative implicit views are most likely to produce discriminatory or harmful behavior toward blacks when there is no social monitoring of the behavior—that is, no one is “watching”—and the behavior can be justified or rationalized based on a factor other than race. Those who are racially egalitarian on both explicit and implicit measures, however, do not engage in such behavior.

This points to a first feature of Zimmerman’s altercation: it was an interaction that was observed clearly by no one.  Witnesses could only sketch bits of what transpired that night.  None of them was visible to Zimmerman.  Other things equal, this makes it more likely that race played a role in that interaction, even if Zimmerman holds no overtly racist beliefs about blacks. Negative racial attitudes or affect of which Zimmerman may not even be aware remain untested but plausible motivations for his actions.

This brings us to the second feature: the Zimmerman trial judge’s decision to sharply limit the explicit reference to race—including denying the prosecution the ability to argue that Zimmerman engaged in racial profiling.  Studies of the legal system and aversive racism show that the less explicitly race is engaged in the discourse in the courtroom, the more likely aversive racism is to influence the decisionmaking process of the jurors. Thus, the judge’s decision also makes it more likely that race played a role in the outcome of the case.

Finally, there is the question of whether it mattered that Martin was a black male. Here we do not have to ferret out unconscious forms of racial bias.  This bias is readily evident in media coverage of crime, which disproportionately emphasizes violent crime perpetrated by non-white males and helps to increase support among white Americans for more punitive crime policies.  Such bias is also evident in public opinion.  Ismail White and I have been conducting a number of studies on the uniqueness of attitudes toward black men. In a nationally representative sample of white Americans, we find that black men are indeed considered uniquely violent. While a traditional question about racial and gender stereotyping finds that whites perceive “blacks” as more violent than “whites” and “men” as more violent than “women,” a question that asks about combinations of these identities—black men, white women, etc.—shows how black men are uniquely stigmatized.  More than 40 percent said that many or almost all black men were violent, but less than 20 percent said that of black women and white men. The figure below displays these results (with the bands indicating 95 percent confidence intervals). mcconnaughy1

We also extend one of the implicit measures of racial attitudes, the Affect Misattribution Procedure (AMP), to measure how white Americans view not simply blacks and whites, but men and women of each race.  As displayed in the figure below, we find that black males elicit the most negative sentiments. Indeed, those who responded the fastest to the measurement task—thus the most clearly expressed implicit bias—registered not only extremely sharp divides between black men and whites of both genders, but also made a clear distinction between black men and black women.

mcconnaughy2In the wake of the Zimmerman verdict, some commentators have reflected on the social burden of black men and even asked who is afraid of (young) black men.  Our research demonstrates that black men do in fact face unique burdens—one of explicit racial blame and also the deeper scar of implicit bias. Trayvon Martin was a part of a social group that many white Americans distinctly malign. While we cannot say with certainty exactly how his race and gender mattered that fateful night in Sanford or in the subsequent trial of Zimmerman, his case offers an important opportunity to understand and perhaps start to undo this unique burden for black men.

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What if Congress had reauthorized the Voting Rights Act for just 5 years?

Did the fact that a law was on a 25-year reauthorization schedule just become a reason for invalidating it? Would the Court have had less reason to invalidate the VRA if it were authorized for just 10 years? 5 years? We doubt that the length of the authorization would have made much difference in this case with this Court, but it is interesting to speculate on whether Shelby County v. Holder will be cited by future courts to justify using a law’s period of authorization as one criterion in evaluating whether it has a rational basis.

More from Scott Adler and John Wilkerson on the Shelby decision.  See also this earlier post.

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