Luis Fuentes-Rohwer | Indiana University (original) (raw)

Papers by Luis Fuentes-Rohwer

There are two ways to read the Supreme Court\u27s decision in Shelby County Alabama v. Holder: as... more There are two ways to read the Supreme Court\u27s decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is a problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward

62 Howard Law Journal 809 (2019), 2019

We are very thankful to Jennifer Morgan, librarian at Maurer, for her help in locating government... more We are very thankful to Jennifer Morgan, librarian at Maurer, for her help in locating government documents. 1. Yick Wo v. Hopkins, 118 U.S. 356 (1886). 2. Id. at 370.

The University of Chicago Legal Forum, Feb 5, 2016

Michigan Journal of Race & Law, 2015

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical ... more In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings allowed the bourgeoisie to use their reason to determine the boundaries of public and private and to self-consciously develop the public sphere. As Habermas writes, “[t]he medium of this political confrontation was . . . people’s public use of their reason.” The bourgeois public didn’t simply participate, but it did so both directly and critically. The develo...

Article published in the Michigan State Law Review.

Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best... more Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call pathological racism, that limits its capacity for addressing the fundamental restructuring that racial justice requires. We suggest, in a manner that might be viewed as counterintuitive, that targeted universalist remedies might be more effective to address long term racial inequality but might also be the more radical approach to addressing racial discrimination.

William and Mary law review, 2018

This article explores the Supreme Court's new racial gerrymandering cases and argue that thos... more This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and activists care about descriptive representation, they should be wary of the racial gerrymandering cases.

Chicago-Kent} Law Review, 2018

Stevens, J., dissenting) ("Although we may never know with complete certainty the identity of the... more Stevens, J., dissenting) ("Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."); see ALAN M. DERSHOWITZ, SUPREME INJUSTICE: HOW THE HIGH COURT HIJACKED ELECTION 2000, at 5-6 (2001) ("[T]here is. .. widespread popular outrage at what the high court did. .. [and when the Court members] act in an unprincipled and partisan manner-as they did in Bush v. Gorethey risk losing respect and frittering away the moral capital accumulated by their predecessors over generations."). 15. THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 16. Scholars have raised similar concerns.

Kentucky Law Journal, 2016

Part of the Election Law Commons Right click to open a feedback form in a new tab to let us know ... more Part of the Election Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. This Symposium Article is brought to you for free and open access by the Law Journals at UKnowledge.

Michigan Journal of Race & Law, 2021

The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's ... more The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

The Voting Rights Amendment Act1 (VRAA), recently introduced in the House by Representatives Sens... more The Voting Rights Amendment Act1 (VRAA), recently introduced in the House by Representatives Sensenbrenner and Conyers and in the Senate by Senator Leahy is a valiant effort to save the Voting Rights Act2 (VRA), an iconic statute that many of us have called a superstatute.3 The VRAA is a response to the Supreme Court’s decision in Shelby County v. Holder,4 which struck down section 4(a) of the VRA, the provision that identified the jurisdictions that needed to submit or preclear their proposed changes prior to implementation, under section 5 of the Act, to the Department of Justice or the United States District Court for the District of Columbia. But even assuming that the bill becomes law, the VRA as amended by the VRAA will at best be a pale shadow of its former self. Sections 4(a) and 5 of the VRA, prior to the Court’s decision in Shelby County, applied, in whole or in part, to fifteen states. The VRAA proposes a new coverage formula, which applies to states that have “persistent...

Michigan Journal of Race & Law, 2015

Law Journals have been under heavy criticism for as long as we can remember. The criticisms come ... more Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.”1 More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”2 Similarly, law professors have developed what Lawrence Friedman calls “a literature of invective” against law reviews.3 Adam Liptak summarized one line of criticism with a question: “[W]hy are law reviews, the primary repositories of legal scholarship, edited by law students?”4 As far back as 193...

Michigan Journal of Race & Law, 1996

See infra note 31 and accompanying text. Such a narrow definition of participation, while seeming... more See infra note 31 and accompanying text. Such a narrow definition of participation, while seemingly accepted in modem political society, is not entirely accurate. See, e.g., SIDNEY VERBA & NORMAN H. NIE, PARTICIPATION IN AMERICA: POLITICAL DEMOCRACY AND SOCIAL EQUALITY 47 (1972) (positing that "there are four broad modes of political participation that are used, in ordinary circumstances, by citizens: voting, campaign activity, citizen-initiated contacts, and cooperative participation"). In a more specific sense, these activities might include: following accounts of public affairs in the media, engaging in political discussions, voting, proselytizing, taking part in campaigns, donating money to political causes and candidates, contacting public officials on either personal or community matters, joining with fellow citizens to deal with political problems, taking part in protest demonstrations, and seeking public office.

Harvard Law Review, 2018

This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, i... more This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan gerrymanders, not only because partisan gerrymandering is harmful, but also because of what partisan gerrymandering communicates about the normativity of the manipulation of electoral rules for partisan gain.

5 Duke Journal of Constitutional Law Public Policy 125, Jun 1, 2010

This Essay argues that the future of the majority-minority district is in peril, as a conservativ... more This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices' policy goals and ideological preferences-namely, their personal disdain for the use of race in public life-will guide the Court's conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court's treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency. * Professor of Law, Indiana University Maurer School of Law. I must thank Guy Charles, first and foremost, for a careful reading of an earlier draft and innumerable comments and suggestions on my thesis. He is the best colleague and friend anybody deserves to have. I am also grateful to Adam Cox and Heather Gerken for their valuable comments.

In the relatively short time since [Baker], the United States Supreme Court has not only entered ... more In the relatively short time since [Baker], the United States Supreme Court has not only entered the 'political thicket,' but with remarkable speed has found conflicts of democratic politics coming to dominate its docket.")(footnote omitted)(quoting Colegrove, 328 U.S. at 556).

Bepress Legal Series, 2006

Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. ... more Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the "goddamnedest toughest" legislation possible. But the President and the 89 th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the fight against voting discrimination. Unsure about the constitutional boundaries at issue, Congress and the administration left many things unsaid, wishing for the Court to extend the substantive provisions of the Act as far as constitutionally permissible. This account turns the conventional wisdom on its head. The Warren Court-widely considered a bastion of liberal policy-making and judicial activism-interpreted the statute precisely in accordance to congressional wishes. Yet this proved to be a risky strategy, for as soon as the Court's composition changed, so did its collective view of the statute. In other words, it is the Rehnquist Court who has demonstrated a penchant for judicial activism under the guise of strict constructionism. As Congress debates the upcoming extension of the Voting Rights Act in 2007, this is a condition of the Act to which Congress must close attention.

59 the Federal Lawyer 54, 2012

Florida State University Law Review, Vol. 36, …, 2010

bepress Legal Series, 2006

There are two ways to read the Supreme Court\u27s decision in Shelby County Alabama v. Holder: as... more There are two ways to read the Supreme Court\u27s decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is a problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward

62 Howard Law Journal 809 (2019), 2019

We are very thankful to Jennifer Morgan, librarian at Maurer, for her help in locating government... more We are very thankful to Jennifer Morgan, librarian at Maurer, for her help in locating government documents. 1. Yick Wo v. Hopkins, 118 U.S. 356 (1886). 2. Id. at 370.

The University of Chicago Legal Forum, Feb 5, 2016

Michigan Journal of Race & Law, 2015

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical ... more In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings allowed the bourgeoisie to use their reason to determine the boundaries of public and private and to self-consciously develop the public sphere. As Habermas writes, “[t]he medium of this political confrontation was . . . people’s public use of their reason.” The bourgeois public didn’t simply participate, but it did so both directly and critically. The develo...

Article published in the Michigan State Law Review.

Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best... more Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call pathological racism, that limits its capacity for addressing the fundamental restructuring that racial justice requires. We suggest, in a manner that might be viewed as counterintuitive, that targeted universalist remedies might be more effective to address long term racial inequality but might also be the more radical approach to addressing racial discrimination.

William and Mary law review, 2018

This article explores the Supreme Court's new racial gerrymandering cases and argue that thos... more This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and activists care about descriptive representation, they should be wary of the racial gerrymandering cases.

Chicago-Kent} Law Review, 2018

Stevens, J., dissenting) ("Although we may never know with complete certainty the identity of the... more Stevens, J., dissenting) ("Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."); see ALAN M. DERSHOWITZ, SUPREME INJUSTICE: HOW THE HIGH COURT HIJACKED ELECTION 2000, at 5-6 (2001) ("[T]here is. .. widespread popular outrage at what the high court did. .. [and when the Court members] act in an unprincipled and partisan manner-as they did in Bush v. Gorethey risk losing respect and frittering away the moral capital accumulated by their predecessors over generations."). 15. THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 16. Scholars have raised similar concerns.

Kentucky Law Journal, 2016

Part of the Election Law Commons Right click to open a feedback form in a new tab to let us know ... more Part of the Election Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. This Symposium Article is brought to you for free and open access by the Law Journals at UKnowledge.

Michigan Journal of Race & Law, 2021

The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's ... more The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

The Voting Rights Amendment Act1 (VRAA), recently introduced in the House by Representatives Sens... more The Voting Rights Amendment Act1 (VRAA), recently introduced in the House by Representatives Sensenbrenner and Conyers and in the Senate by Senator Leahy is a valiant effort to save the Voting Rights Act2 (VRA), an iconic statute that many of us have called a superstatute.3 The VRAA is a response to the Supreme Court’s decision in Shelby County v. Holder,4 which struck down section 4(a) of the VRA, the provision that identified the jurisdictions that needed to submit or preclear their proposed changes prior to implementation, under section 5 of the Act, to the Department of Justice or the United States District Court for the District of Columbia. But even assuming that the bill becomes law, the VRA as amended by the VRAA will at best be a pale shadow of its former self. Sections 4(a) and 5 of the VRA, prior to the Court’s decision in Shelby County, applied, in whole or in part, to fifteen states. The VRAA proposes a new coverage formula, which applies to states that have “persistent...

Michigan Journal of Race & Law, 2015

Law Journals have been under heavy criticism for as long as we can remember. The criticisms come ... more Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.”1 More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”2 Similarly, law professors have developed what Lawrence Friedman calls “a literature of invective” against law reviews.3 Adam Liptak summarized one line of criticism with a question: “[W]hy are law reviews, the primary repositories of legal scholarship, edited by law students?”4 As far back as 193...

Michigan Journal of Race & Law, 1996

See infra note 31 and accompanying text. Such a narrow definition of participation, while seeming... more See infra note 31 and accompanying text. Such a narrow definition of participation, while seemingly accepted in modem political society, is not entirely accurate. See, e.g., SIDNEY VERBA & NORMAN H. NIE, PARTICIPATION IN AMERICA: POLITICAL DEMOCRACY AND SOCIAL EQUALITY 47 (1972) (positing that "there are four broad modes of political participation that are used, in ordinary circumstances, by citizens: voting, campaign activity, citizen-initiated contacts, and cooperative participation"). In a more specific sense, these activities might include: following accounts of public affairs in the media, engaging in political discussions, voting, proselytizing, taking part in campaigns, donating money to political causes and candidates, contacting public officials on either personal or community matters, joining with fellow citizens to deal with political problems, taking part in protest demonstrations, and seeking public office.

Harvard Law Review, 2018

This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, i... more This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan gerrymanders, not only because partisan gerrymandering is harmful, but also because of what partisan gerrymandering communicates about the normativity of the manipulation of electoral rules for partisan gain.

5 Duke Journal of Constitutional Law Public Policy 125, Jun 1, 2010

This Essay argues that the future of the majority-minority district is in peril, as a conservativ... more This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices' policy goals and ideological preferences-namely, their personal disdain for the use of race in public life-will guide the Court's conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court's treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency. * Professor of Law, Indiana University Maurer School of Law. I must thank Guy Charles, first and foremost, for a careful reading of an earlier draft and innumerable comments and suggestions on my thesis. He is the best colleague and friend anybody deserves to have. I am also grateful to Adam Cox and Heather Gerken for their valuable comments.

In the relatively short time since [Baker], the United States Supreme Court has not only entered ... more In the relatively short time since [Baker], the United States Supreme Court has not only entered the 'political thicket,' but with remarkable speed has found conflicts of democratic politics coming to dominate its docket.")(footnote omitted)(quoting Colegrove, 328 U.S. at 556).

Bepress Legal Series, 2006

Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. ... more Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the "goddamnedest toughest" legislation possible. But the President and the 89 th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the fight against voting discrimination. Unsure about the constitutional boundaries at issue, Congress and the administration left many things unsaid, wishing for the Court to extend the substantive provisions of the Act as far as constitutionally permissible. This account turns the conventional wisdom on its head. The Warren Court-widely considered a bastion of liberal policy-making and judicial activism-interpreted the statute precisely in accordance to congressional wishes. Yet this proved to be a risky strategy, for as soon as the Court's composition changed, so did its collective view of the statute. In other words, it is the Rehnquist Court who has demonstrated a penchant for judicial activism under the guise of strict constructionism. As Congress debates the upcoming extension of the Voting Rights Act in 2007, this is a condition of the Act to which Congress must close attention.

59 the Federal Lawyer 54, 2012

Florida State University Law Review, Vol. 36, …, 2010

bepress Legal Series, 2006