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CURRENT LOCATION: TJCLCR | Archives | VOLUME 2, ISSUE 2 (Summer, 1996)


Volume 2, Number 2, Summer 1996


Hopwood: Was This the African-American Nightmare or the African-American Dream?, 97
Kevin Brown

In this essay, Brown shares his vision of the future of legal education in America should the Supreme Court ever adopt the reasoning of the Fifth Circuit opinion in Hopwood v. Texas in striking down affirmative action programs in admissions.

In the year 2036, a hypothetical Professor Marshall DuBois Douglass looks back upon his fifty-year career as a faculty member of the University of Texas School of Law as it draws to a close. He remembers the dawn of the era of affirmative action as the end of legally sanctioned segregation in America. He remembers the benefits conferred on racial minorities by the conscious consideration of race by the state. He remembers the racial and ethnic diversity in the student body and curriculum at the law school.

But the Supreme Court's Hopwood decision changed all that by instituting the “Colorblind Era:” “[T]he colorblind philosophy was just a euphemism for the maintenance of the subordinated status of black and brown people”. Douglass is torn between despair and the hope that the same America which had once attempted to eradicate racial subordination would once again aspire to this goal.


Hopwood: A Plea to End the “Affirmative Action” Fraud, 105
Lino Graglia

In this article, Graglia argues that affirmative action in university admissions should be eliminated and that the Hopwood decision is a step in the correct direction.

Graglia begins by arguing that racial preferences in admissions are based on nothing other than race. The original justification for such programs, he contends, was an unfounded and incorrect assertion that the LSAT is culturally biased. Graglia argues that today there are two main justifications for affirmative action, and both are illegitimate. The first is the “remedy—need to compensate” justification, which is based on the theory that affirmative action programs are necessary to rectify the vestiges of past slavery and segregation. Graglia argues that this justification is invalid for several reasons.

The second justification for these programs, according to Graglia, is diversity. This justification took hold after the Supreme Courts 1978 decision in Bakke. Graglia then goes on to argue that Bakke was a fraud.

Graglia concludes by arguing that the Hopwood decision is a well founded attempt to eliminate affirmative action and is thus a major turning point in this nations history.


Hopwood: Some Reflections on Constitutional Interpretation by an Inferior Court, 113
Sanford Levinson

The recent Hopwood case is a classic example of an inferior court overstepping its judicial boundaries into legislative territory. The Hopwood decision effectively used the specific issues that were raised within the case to broadly foreclose any possibility of using the affirmative action policies that were being implemented within the school systems in the fifth circuit. This decision not only undermined attempts to accomplish social justice in university and law school admissions policies, but it also negatively impacted the quality and diversity of the student body within university and law school classrooms. The Supreme Court's denial of review of this case has managed to reinforce the fifth circuit's rejection of Bakke and tacitly approve of their broad judicial roles.


The Substantial Burden Test's Impact on the Free Exercise of Minority Religions, 123
Eloise Henderson Bouzari

The Religious Freedom Restoration Act of 1993 directs courts to apply the Sherbert v. Verner and Wisconsin v. Yoder substantial burden test to claims under the First Amendment free exercise of religion clause. For courts to apply Sherbert and Yoder, however, they must iron out conflicts in the language of the two cases or rely on one case more than the other. This injects a dangerous and unnecessary element of judicial discretion into decisions already plagued by the inherent conflict in asking majoritarian judges to evaluate claims brought primarily by practitioners of minority religions.


Assessing the Constitutionality and Policy Implications of the 1994 Drug Kingpin Death Penalty, 141
Neil C. Schur

This note elaborates upon the Drug Kingpin Death Penalty Statute which became federal law in 1994. Schur focuses on the provision in the statute under which a defendant found guilty of violating the drug kingpin laws by either possessing a large amount of a controlled substance or possessing large total receipts from such a controlled substance may be sentenced to death.

This note assesses the statute's constitutionality by reviewing the constitutional history of the death penalty in the U.S., by applying the concept of proportionality, and by discussing Congress' power to make such a law under the Commerce Clause.

The author concludes that, viewed in this framework, the statute is unconstitutional. Furthermore, Schur explores the policy implications of this law and opines that the statute is a poorly-thought-out political quick-fix that will surely lead to disaster.


Sword Wielding and Shield Bearing: An Idealistic Assessment of the Federal Trust Doctrine in American Indian Law, 165
Ray Torgerson