Article

The Reconstruction Congress

David P. Currie

Edward H. Levi Distinguished Service Professor of Law Emeritus, The University of Chicago

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The Editors of The University of Chicago Law Review wish to acknowledge the passing of Professor Currie while this Article was being prepared for press. We offer our condolences to his family, friends, and colleagues.

This article is a sequel to The Civil War Congress, which appeared not long ago in The University of Chicago Law Review. Both are elements of a continuing study of extrajudicial interpretation of the Constitution, with an emphasis on the debates in Congress. The present installment begins where the preceding one left off: with the accession of Andrew Johnson to the presidency upon the assassination of President Lincoln in April 1865.

TABLE OF CONTENTS

Constitutional Law Legal History

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Article

The Truth of Erasure: Universal Remedies for Universal Agency Actions

T. Elliot Gaiser

T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.

Mathura Sridharan

Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.

Nicholas Cordova

Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

Administrative Law Constitutional Law

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Essay

Before Bakke: The Hidden History of the Diversity Rationale

Anthony S. Chen

Anthony S. Chen is Associate Professor of Sociology and Political Science at Northwestern University, where he is also a Faculty Fellow at the Institute for Policy Research. The author of The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, 2009), he is interested in political sociology, historical sociology, and American political development, with a special emphasis on civil rights, social and economic policy, and business-government relations.

Lisa M. Stulberg

Lisa M. Stulberg is Associate Professor of Sociology of Education at New York University’s Steinhardt School of Culture, Education, and Human Development. The author of Race, Schools, and Hope: African Americans and School Choice after Brown (Teachers College Press, 2008) and the co-editor (with Sharon Lawner Weinberg) of Diversity in American Higher Education: Toward a More Comprehensive Approach (Routledge, 2011), she researches the politics of race and education, and LGBTQ+ social change.

Chen and Stulberg are completing a book on the history and development of race-conscious affirmative action in college admissions.

For all of the legal and political contention surrounding affirmative action, one facet of the discussion is characterized by a curious, if implicit, consensus that spans all manner of ideological and partisan divisions.

Diversity Legal History

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Essay

John Marshall’s Proslavery Jurisprudence: Racism, Property, and the “Great” Chief Justice

Paul Finkelman

President and Professor of History, Gratz College. B.A., Syracuse, 1971; M.A. and Ph.D., The University of Chicago, 1972, 1976. Fellow in Law and Humanities, Harvard Law School, 1982–83. President William McKinley Emeritus Professor of Law, Albany Law School.

I thank Candace Jackson Gray for her help in researching census and tax records connected to Chief Justice Marshall’s slaveholding, and Charles F. Hobson, Tim Huebner, Alysa Landry, and R. Kent Newmyer for their many comments on early versions of this piece. I thank Harvard University Press for allowing me to reprint material in this essay that comes from my book, Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard 2018).

This is the second Essay in a two-part series exploring Chief Justice John Marshall’s private and public relationship to slavery.

John Marshall Legal History Slavery