The Yale Law Journal Online: New Essays

The Yale Law Journal Online has recently published two essays, one discussing the legacy of the Supreme Court’s decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and the other providing insight into the Court’s upcoming argument in Fisher v. University of Texas at Austin, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345), granting cert. to 631 F.3d 213 (5th Cir. 2011).

In West Coast Hotel’s Place in American Constitutional History, G. Edward White shows that the conventional narrative about West Coast Hotel, which many view as representing “the Supreme Court’s abandonment of a constitutional jurisprudence featuring aggressive scrutiny of legislation that regulated economic activity or redistributed economic benefits,” is misleading. Instead, West Coast Hotel’s significance comes from its place in a “different narrative, one featuring clashing views on the issue of constitutional adaptivity: how the general provisions of the Constitution are adapted to new controversies and whether the meaning of those provisions change in the process.”

Turning to the present, Adam D. Chandler writes in How (Not) To Bring an Affirmative-Action Challenge about the “grave defects” in Fisher, a much-hyped affirmative action case concerning the use of race as a factor in undergraduate admissions at the University of Texas at Austin. Chandler’s argument “boils down to this: The only relief still available to Fisher is a refund of her application fees (Part I). Texas could therefore moot the case for a tiny sum (Part II). Regardless, the Eleventh Amendment and Title VI jurisprudence bar recovery of the fees (Part III). In addition, there are three defects in Fisher’s standing to claim the fees (Part IV). The potential recourses for resuscitating the case are fraught and unconvincing (Part V). And if, despite all that, the Court reaches the merits, the Justices will find the case a much narrower dispute than they might have expected (Part VI).” Chandler’s essay presents a number of ways that the Court could “exercise its passive virtues” and retreat from deciding a case that threatens its institutional legitimacy and legacy.

Preferred citations:

G. Edward White, West Coast Hotel’s Place in American Constitutional History, 122 YALE L.J. ONLINE 69 (2012),

Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge, 122 YALE L.J. ONLINE 85 (2012),

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