Vol. 107 Issue 5

Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties. The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.” Second, Cooper asserted a principle this Article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases.

Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.” Not so. Rather, they were novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate. Through a careful study of the papers of Justices Black, Brennan, Burton, Clark, Douglas, Frankfurter, Harlan, and Chief Justice Warren, this Article exposes the constitutional origins of this irrepressible myth.

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and develop-ing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: it creeps back and forth from track to track. Bespoke contract law ends up as general contract law, and law designed for one contract ecosystem will almost invariably migrate to a different transactional environment. Thus, contract doctrine will be applied in a context for which it is not suited, where it may actually undermine stated doctrinal goals.

This Article identifies “creep” from sophisticated party doctrine into consumer contract law and from consumer contexts into sophisticated party transactions through a few case studies. It then elaborates the mechanisms by which creep occurs: porous definitions of transaction types; contract drafting practices of standardization with portable provisions that confuse courts; and good old common law analogical reasoning that involves law jumping from track to track. We conclude by instructing judges to be more mindful of the process of contract creep, warning con-tract drafters to better appreciate the risks and costs of their drafting practices, and exhorting contract theorists to include the risks and costs of creep as they develop their doctrinal edifices, which are likely to be applied off-track.

In its April 2018 issue, National Geographic featured a pair of biracial twins on its cover with diametrically opposite traits: Millie with dark skin, black hair, and brown eyes, and Marcia, with pale skin, blonde hair, and blue eyes. The coverage of this pair raised a perplexing question: what does it mean when two people of the same race could be treated and seen differently? What happens when skin color—traditionally used as a proxy for race—becomes an independent basis for categorizing and treating Marcia and Millie? What happens when race is no longer a “perfect” schema by which we can classify, understand, and presume?

The answer to these questions has always been in the background: color. “Colorism”—the act of discriminating against a person due to differences in skin color—has been used to advance and oppress individuals for centuries, but has been masked by conversations of race. Colorism is the reason why the film Black Panther garnered high acclaim for shattering norms and showcasing dark- skinned Black women, and the purported reason why sisters Beyoncé and Solange Knowles have been so successful . . . This Note’s colorism discussion focuses on Title VI of the Civil Rights Act of 1964 (Title VI) because of the breadth of entities and programs the statute influences. Interestingly, legal scholars have yet to discuss colorism claims under Title VI, instead focusing their energy on other civil rights statutes. Unlike its sister provisions, Title VI affects a wide range of entities. Title VI prevents people from being discriminated against on the grounds of race, color, or national origin by “any program or activity receiving Federal financial assistance,” which includes state departments of public safety, colleges, boards of education, medical centers, and private corporations.

This Note serves as an introduction to this burgeoning Title VI color discrimination doctrine and provides an analysis of the litigation trends that perpetuate the cycle discussed above. Part I dives into colorism’s past and present to demonstrate that colorism has long been a problem that must be resolved. Part II pro-vides an overview of observations from current Title VI color discrimination case law. Lastly, Part III provides recommendations for how courts, plaintiffs, and civil rights lawyers can establish and expand this important body of law.

Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the District’s non-Article III court system. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III.

This Article challenges that consensus. It shows that, as a historical matter, Article III’s judicial protections were long believed to apply to the District. And it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the capital. In short, this Article demonstrates that the current D.C. court system likely violates Article III.

This conclusion should be significant in its own right, since the right to an Article III judge has long been viewed as an essential constitutional safeguard. Indeed, the modern history of the D.C. court system reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the capital. But the historical research presented in this Article also has broader implications outside the seat of government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.

During the Lochner era, the Supreme Court shielded liberty of contract and property rights; it privileged private ordering and restrained the reach of government regulation; and it embraced robust conceptions of national sovereignty with respect to immigration and trade. Though Lochner itself remains an anti-canonical case, many of the conceptions of rights, state power, and sovereignty embraced by the Lochner-era Court persist in legal and political discourse today. This Article shows that these ideas now have a politically powerful sponsor and proponent in the Trump Administration. The motif of a constitutional framework over a century old appears in the Trump Administration’s policy positions and legal approach to areas as diverse as health insurance regulation, administrative law, regulatory reform, net neutrality, drug law, immigration, and tariffs. Grappling with these resemblances reacquaints us with some neglected aspects of the constitutional thought of our past, casts fresh light upon the unfolding events of the present day, and allows us to better anticipate what the future will bring. Mapping the grammar of rights and power that permeates the Trump Administration’s agenda for government and law, this Article explains how that Administration might bend the road forward back to the past.

The proper treatment of hybrid statutes raises a crucial yet unresolved issue that has important ramifications for the course of judicial review in the administrative state. Further, the clash of canons is exacerbated by the so-called “one statute, one-interpretation rule,” which posits that courts must give hybrid statutes just one interpretation for all applications. Adopting the rule of lenity across the board poses the “potential sticker shock of transforming a government-always- wins canon (Chevron) into a government-always-loses canon (rule of lenity).” But if Chevron always wins, such deference “would turn the normal construction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of severity.” Furthermore, the hybrid nature of statutory provisions extends far beyond insider trading. “Liability may be either civil or criminal under virtually every provision of the laws administered by the SEC.” Hybrid statutes span the regulatory gamut, and include, for example, antitrust laws, the Racketeer Influenced and Corrupt Organizations Act (RICO), environmental laws such as the Clean Water Act, various tax statutes, and the Bankruptcy Code.

This Note seeks to resolve these clashing principles of statutory construction by proposing a novel approach that incorporates the rule of lenity into the Chevron framework for hybrid statutes. Specifically, this Note (1) rejects a cate-gorical application of the one-statute, one-interpretation rule, and (2) introduces a framework based on congressional intent, analogous to “Step Zero” of the Chevron analysis, introduced in United States v. Mead Corp. Thus, if Congress demonstrates an intent to apply the one-statute, one-interpretation rule, then one of the four possible solutions discussed in section I.C.2 should prevail. However, absent congressional intent, separation of powers, due process, and practical factors support rebutting the one-statute, one-interpretation rule and instead applying Chevron to civil applications of the statute and the rule of lenity to the criminal applications.

This Note proceeds as follows. Part I analyzes the underlying rationales for the Chevron doctrine and the rule of lenity and explores how the two principles come into conflict in the context of hybrid statutes. Part II evaluates the one-statute, one-interpretation rule and challenges its absolute, unqualified application. Part III details the novel approach introduced above—bifurcating the interpretation of the civil and criminal aspects of the law—and evaluates its benefits over potential alternatives.