Articles
Reparations for Project One Hundred Thousand
Eleanor T. Morales | PDF
During the Vietnam War, the U.S. Department of Defense (“DOD”) created a new program that targeted marginalized communities, resulting in thousands of deaths and adversely impacting the lives of more than one hundred thousand others. This Article—which draws on original archival research from obscure DOD files—uncovers the origins and effects of the program called “Project One Hundred Thousand.” This research reveals that the program drafted members of impoverished communities to serve in the place of more privileged men, who received draft exemptions. The program enabled the U.S. government to continue the war at scale without incurring an unacceptable loss of political support for the war from middle-class voters.
Project One Hundred Thousand achieved the goal of drafting and inducting more service members by revising the mental aptitude and physical military entrance standards, admitting service members who were previously ineligible to serve in the armed forces. Then–Secretary of Defense Robert McNamara justified the program to the American public, saying it would “uplift” underprivileged men. Instead, the program sent more than half of these men, called “New Standards Men,” to a combat zone and thousands of them to their deaths. The U.S. military issued over one hundred thousand surviving New Standards Men less than honorable discharges—potentially resulting in lifelong exclusion from benefits at the Department of Veterans Affairs, imposing severe economic, social, and psychological costs to these service members.
This Article makes two distinct contributions. First, it spotlights an example of how a “system” of systemic racism gets built and draws attention to how systemic racism tangibly impacts the armed forces. Second, it offers a way for the U.S. government to address the injustices it inflicted by suggesting presumptive discharge relief, meaning the DOD would presume the discharge was unjust. The proposed remedy is modeled after the remedy afforded to victims of the military’s past discriminatory policies based on sexual orientation. Informed by this Author’s professional experience representing New Standards Men, this proposal offers a way for the U.S. government to make reparations for the harm it inflicted on marginalized communities.
Fair Notice Is a Sociopolitical Choice
Alexander Zhang | PDF
This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice?
The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history.
From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands-off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice.
Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory.
Notes
Finding a Purpose in Bruen‘s World
Timothy J. Southam | PDF
Fewer than seven months after the Highland Park mass shooting, the Illinois General Assembly passed the Protect Illinois Communities Act (“PICA”), a statewide ban on assault weapons and large-capacity magazines. Gun-rights advocates have characterized PICA (and other similar strong state gun laws) as unconstitutional laws intentionally enacted to defy the Supreme Court’s protection of the right to keep and bear arms. In response to such severe accusations, especially in light of New York State Rifle & Pistol Ass’n v. Bruen, this Note assesses these claims using PICA as a case study. Through an investigation of its legislative history—an investigation that analyzes everything from floor-debate transcripts to committee-hearing recordings—this Note observes that PICA’s drafters and supporters were constitutionally conscientious when they enacted the assault weapon and large-capacity magazine ban.
To help other state legislators avoid accusations of defying their oaths of office, this Note also investigates the Seventh Circuit’s application of Bruen’s text-and-history test to hold PICA to be likely constitutional. This inquiry makes two related findings. First, it would be prudent for state legislators to articulate their purpose for enacting a firearms ban in the text of the ultimate bill. Second, to accomplish this first task, state legislators should avoid resorting to procedural shortcuts—like the gut and replace tactic used to pass PICA—to enact firearms bans. If constitutionally conscientious state legislators wish to respond meaningfully to gun violence with strong gun regulation, they must still respect the legislative procedural processes. Ultimately, even if the ends are legitimate, the means must always be proper.
By Scalpel or Chainsaw: The Status of Pre-Bruen Case Law in the Lower Courts
Thomas Moy | PDF
The Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it.
Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant prohibitor, 18 U.S.C. § 922(g)(5), this Note answers that question. Before Bruen, eight federal courts of appeals had the opportunity to address the constitutionality of § 922(g)(5), and all of them upheld the statute using three different methods. After Bruen, some courts have treated each method differently, demonstrating the particularity with which they analyze Bruen and its implications—what this Note calls the “scalpel approach.” Others have abrogated all pre-Bruen precedent, thus starting the Second Amendment analysis anew—the “chainsaw approach.” In the end, this Note argues that the scalpel approach better reflects core judicial values like uniformity and institutional legitimacy and thus is the correct path for courts applying Bruen to take.