Paternalism, Tolerance, and Acceptance: Modeling the Evolution of Equal Protection in the Constitutional Canon

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of marginalized groups and the extent to which its jurisprudence begins to subvert subordination practices. Consequently, the Article attempts to trace both how far we have come and to criticize the potential shortcomings of the extant body of jurisprudence from the Supreme Court on issues related to equality. In advancing this evolutionary model of civil rights jurisprudence, the Article charts the key characteristics of the three stages in the development of equal protection under the law: paternalism, tolerance, and acceptance. In the process, the Article scrutinizes and reassesses some of the most canonical decisions in the civil rights firmament and considers how these purported hallmarks of progressive jurisprudence—from Justice Harlan’s prescient dissent in Plessy v. Ferguson and the Supreme Court’s rare moment of post- Reconstruction racial awakening in Strauder v. West Virginia to Mendez v. Westminster and Brown v. Board of Education, right through the modern-day sexual-orientation triumvirate of Lawrence v. Texas, Windsor v. United States, and Obergefell v. Hodges—fell short in critical ways. In the end, the goal of this Article and the model it presents is to encourage a more robust and fulsome notion of equal protection—one that is proactive rather than reactive; one that affirmatively renounces, rather than stays silent on, supremacist ideologies; and one that uses the legal machinery of the state to accept and celebrate the inalienable rights and worth of individuals who are members of targeted groups

Curbing Copyblight

This Article identifies and analyzes the growing problem of copyblight the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: (1) strengthening section 512(f) of the Digital Millennium Copyright Act to provide a more viable claim against those who make false representations to force the removal of allegedly infringing content online; (2) forcing the adoption of an evenhanded approach to the assessment of fees in copyright cases--something that many trial courts have failed to do despite the explicit exhortations of the Supreme Court and the significant policy interest at stake; and (3) resurrecting a qui tam civil cause of action for false markings under the Copyright Act in order to disincentivize the presently ubiquitous use of fraudulent legal language that erodes and chills protected user activities. As a society, we rightfully offer meaningful remedies for the infringement of legitimate owner rights. It only makes sense to offer meaningful remedies for the infringement of legitimate user rights

Playing Cowboys and Iranians: Selective Colorblindness and the Legal Construction of White Geographies

This Article examines the selective invocation of colorblindness in legal and political discourse and argues that the trope has served as a powerful vehicle for the creation, perpetuation, and patrolling of white geographiesspaces characterized by an implicit hierarchy privileging white racial identity. After assessing the new rhetoric of race in the Age of Obama, the Article focuses on identifying and deconstructing the modern paradox of colorblindness jurisprudence. On the one hand, the courts have increasingly hewed to a colorblind vision of the Constitution when weighing the permissibility of race-based admissions and hiring programs for traditionally disadvantaged minorities. And, yet, on the other hand, when confronted with invidious racial targeting-in the name of patrolling our borders, keeping our streets safe from crime, or protecting the homeland from acts of terrorism-the obstreperous advocates of the categorically colorblind Constitution go strikingly silent. Drawing upon the examples of S.B. 1070 (Arizona\u27s show-me-your-papers immigration law), H.B. 2281 (Arizona\u27s legislation outlawing ethnic studies programs in public schools), and a series of racial profiling cases interpreting the Supreme Court\u27s Brignoni-Ponce decision, this Article argues that the discriminate entreaty for postracialism has, in fact, helped consolidate subordination practices in critical social, economic, and political spaces. In the end, therefore, while we are colorblind in theory, we are color bound in fact. Government regularly uses race in a variety of troubling contexts. Indeed, the very same courts that tell us that we have a colorblind Constitution have also held that one\u27s Latino appearance is a relevant factor in determining reasonable suspicion for an immigration sweep, one\u27s Middle Eastern heritage is a perfectly suitable consideration when ascertaining whether transportation of a passenger is \u27inimical to safety,\u27 and one\u27s African-American descent can serve as an acceptable indicia of criminality without running afoul of the Fourth Amendment. At a minimum, these practices call into question our fealty to notions of colorblindness that have dominated legal and political discourse in recent years. More perniciously, however, the resulting uneasy gestalt perpetuates longstanding inequities (and forges new ones) by empowering a racialized social geography that continues to privilege white identity