Author: Wake Forest Law Review

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Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, by Eric J. Segall

Wake Forest Law Review 

The editors of Common Law, the online publication of the Wake Forest Law Review, are proud to announce their most recent publication: Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, by Eric J. Segall.

In Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, Eric J. Segall argues that, even though Justice Thomas publicly espouses an originalist approach to constitutional interpretation, his decisions regarding affirmative action “reflect an obvious disregard for text and history.”  In Segall’s opinion, the text of the Fourteenth Amendment can be plausibly interpreted as permitting racial classifications that benefit minorities.  However, Thomas has so far refused to explore the ambiguity of the word “equal,” choosing instead to take an overly-formalistic view of the equal protection clause.  Since there is an ambiguity, Thomas’ originalism would seem to require him to adhere to the original intent of the drafters of the Fourteenth Amendment.

Yet, Thomas has so refused to even acknowledge the abundant historical evidence that “the drafters and ratifiers of the Reconstruction Amendments would have believed racial preferences designed to assist the newly freed slaves were in fact fully consistent with those Amendments.”  Because of this, Segall concludes that Thomas’ view on affirmative action cannot be explained as a logical application of his originalism; rather, he speculates that it is the result of bad faith, confusion, or both.

Segall’s full essay is available here.

Preferred citation:  Eric J. Segall, Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, 3 Wake Forest L. Rev. Online 11 (2013).

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Wake Forest Law Review, Volume 47, Issue 1 (April 2012)

Wake Forest Law Review 

Wake Forest Law Review, Volume 47, Issue 1 (April 2012)

Articles

Copyright, Death, and Taxes
Edward Lee

A Signaling Theory of Lockups in Mergers
Shmuel Leshem

When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When A Motion to Dismiss is Pending
Kevin J. Lynch

Regulating Companies as if the World Matters: Reflections From the Ongoing Sustainable Companies Project
Beate Sjåfjell

 

Essays

Our Continuing Struggle with the Idea that For-Profit Corporations Seek Profit
Leo E. Strine, Jr.

A Unique Religious Exemption From Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate Against Married or Marrying Gays in Context
Michael Kent Curtis

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The Wake Forest Law Review Online: “The Myth of Perfection”

The Wake Forest Law Review Online

The Wake Forest Law Review Online has published an essay on internet privacy, online censorship and intellectual property rights: The Myth of Perfection by Derek E. Bambauer.

In The Myth of Perfection, Derek Bambauer explores the impact of the pursuit of perfection on internet privacy, online censorship and intellectual property protection.  Bambauer argues that the “obsession” with perfection may threaten innovation and detract from more pressing privacy concerns.  Ultimately, Bambauer concludes  that in the place of perfection, “we should adopt the more realistic, and helpful, conclusion that often good enough is . . . good enough.”

Preferred citation:

Derek E. Bambauer, The Myth of Perfection, 2 Wake Forest L. Rev. Online 22 (2012), http://wakeforestlawreview.com/the-myth-of-perfection.