Protection Clause Research Articles

Gerrymandering and Conceit: The Supreme Court's Conflict With Itself

In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting. This Article analyzes the manageable standard requirement, revealing the Court’s failure to define the term and that the Court has applied the manageability requirement haphazardly. Scores of court-made standards either over- or under-enforce the constitutional norm they purport to implement. Why is “fairness” a workable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances judicially manageable? Importantly, a common thread connects the Court’s use of the manageability requirement to its insecurity in exercising judicial review, indicating that the Court often applies the manageability requirement when particularly insecure in exercising the judicial function. Recast in this light, the question of Court engagement in gerrymandering disputes turns on the propriety of Court intervention to address artificial obstacles that disrupt democratic functionality. The Court should no longer hide behind the manageability barrier because court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again in Whitford.

Event dependence in U.S. executions.

Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties. The number of executions across counties appears to fit a stretched distribution. These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event. To examine these processes, we employ two-pronged empirical strategy. First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model. Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing. Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently. This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.

Are Women's Spaces Transgender Spaces? Single-Sex Domestic Violence Shelters, Transgender Inclusion, and the Equal Protection Clause

Are Women's Spaces Transgender Spaces? Single-Sex Domestic Violence Shelters, Transgender Inclusion, and the Equal Protection Clause

The Sit-In Cases: Explaining the Great Aberration of the Warren Court

The Sit-In Cases: Explaining the Great Aberration of the Warren Court CHRISTOPHER W. SCHMIDT The Warren Court is remembered for its commitment to advancing the rights of the disempowered. In cases involving conten­ tious national issues—school desegregation, criminal justice, voting rights—the Supreme Court under the leadership of Chief Justice Earl Warren (1953-1969) offered bold new interpretations of the Constitution. But in a line of cases in the early 1960s—cases many at the time believed to be as significant as any the Warren Court faced—the Court broke pattern. When faced with cases involving appeals of criminal convictions for involve­ ment in lunch counter sit-in demonstrations, the Court ducked, again and again. The Court overturned convictions of the sit-in protest­ ers, but always on narrow grounds. A majority of the Justices never squarely faced the difficult constitutional question at the core ofthe sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use race as a qualification for service? In other lines of cases, when the struggle for racial equality faced constitutional bar­ riers to achieving its objectives, the Warren Court reworked constitutional law. This was particularly true when civil rights activists in the streets were able to secure broad constitutional support for the constitutional claims the civil rights lawyers were pressing in the courts. When it came to the sit-in cases, public opinion had clearly swung behind the cause of the sit-ins protesters. By the middle of 1963, an overwhelming majority of Americans supported equal access to eating facilities.1 In 1964, when Congress was about to pass the Civil Rights Act, which included a national prohibition on racial discrimination in public accommodations, most ofthe nation lived under state or local laws requiring nondiscriminatory access to public accom­ modations.2 Despite this transformation tak­ ing place outside the Court, the Court still refused to align itself squarely with the students. In fact, in late 1963, a majority of THE SIT-IN CASES: THE GREAT ABERRATION 295 the Justices were poised to squarely reject the students’ constitutional claim. The sit-in cases stand as the great—and largely forgot­ ten—aberration of the Warren Court. Why did the Justices, such stalwart defenders of other civil rights claims during this period, have so much difficulty with the sitin cases? When the Justices approached the constitutional claim ofthe sit-ins, they saw the same basic issues that captured the attention of the American people.3 They appreciated the powerful egalitarian message ofblack students sitting at lunch counters, denied their share of American citizenship for no reason other than the color of their skin. They supported the passage of federal legislation ending this shameful situation once and for all. But they also faced concerns that were particular to their places in the institution perched at the apex of the American judicial system. The Justices worked with a distinctive tool, the language of constitutional doctrine, with its particular cate­ gories ofanalysis and reliance on precedent. And they were moved by distinctive institutional interests, the most significant of which was an overriding concern with protecting the legiti­ macy and integrity of the judicial process. The Justices differed among themselves as to the nature, import, and relative weight of these factors, but taken as a whole, they explain why the Court fell out of step with the rest of the nation when it came to the fundamental constitutional question raised by the sit-ins. This article breaks down the Supreme Court’s confrontation with the sit-in cases into four acts. Act One examines two cases, each originating in challenges to racial discrimination that predated the sit-in move­ ment, that arrived at the Court in late 1960 and early 1961, in the aftermath of the sit-ins. I use these cases to introduce the central constitutional issues raised in the sit-in cases A majority of the Justices on the Warren Court never squarely faced the difficult constitutional question at the core of the sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use...

Liberty, Equality and the Right to Marry under the Fourteenth Amendment

Abstract The legitimacy of recent judgments in the Supreme Court, lower federal courts and State courts which have extended the scope of the Due Process and/or Equal Protection clauses of the Fourteenth Amendment has been a fiercely contested controversy in legal and political circles in the USA. The controversy has been especially sharp in relation to the question of same sex marriage, and specifically whether it is within State competence to refuse to allow same sex couples to marry under State law. This paper explores that legitimation controversy through a multi-contextual analysis of the Supreme Court’s starkly divided judgment in Obergefell v Hodges (2015), in which a bare majority of the Court concluded that a State ban on same sex marriage was incompatible with the Due Process clause of the Fourteenth Amendment. This paper critiques both the majority and dissenting opinions, and suggests that while one might applaud the substantive conclusion the Court has reached, the reasoning offered by the majority suffers from several obvious weaknesses both in narrow doctrinal terms and from the broader perspective of safeguarding the Court from well-founded criticism that it is overstepping the bounds of its legitimate constitutional role.

A Casebook Section Companion to the Canon of Rational Basis Review

This model casebook section on rational basis review under the Equal Protection Clause is free and available for use with attribution. This casebook section is intended to provide students with a fuller perspective on the various inconsistent approaches that courts take to rational basis review, and how that inconsistency can be used by attorneys. For the article that this casebook section is a companion to, see Katie R. Eyer, The Canon of Rational Basis Review, 93 Notre Dame L. Rev. 1317 (2018), available at https://ssrn.com/abstract=2922546.

Growing the Pie or Slicing it Differently - on the Need to Disentangle Two Aspects of Trade Agreements

Recent trade negotiations such as TTIP include investor protection clauses. Against the background of an analysis of the case for trade, the paper asks whether such clauses can be justified from a normative perspective. More specifically, what is the impact of investor protection on the domestic distribution of the gains from trade between labour and capital, and how should we assess this impact from the perspective of justice? In order to answer this question, the paper develops a series of ideal-type scenarios that reflect the consequences of investor protection on employment on the one hand, and on the distributive conflict between labour and capital on the other. While no claim is made which of these scenarios corresponds to TTIP or other trade agreements, they provide a useful normative framework to analyse such agreements.

Boys, Girls, or Unisex? An Analysis of the Title IX Arguments in G.G. v. Gloucester County School Board

ABSTRACTThis article analyzes the arguments presented in recent federal court appeals concerning the rights of transgender students in America's public schools. Specifically, the applicability of Title IX and the Equal Protection Clause of the US Constitution to the rights of transgender students is examined.

Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws

PurposeWhile the words diversity, disparate impact, and discrimination are commonly read and heard by working adults and professionals, they can at times be confusing and fearful to some managers. The purpose of this paper is to provide an overview of a specific aspect of US civil rights laws – the disparate impact theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute, administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case based on the disparate impact theory. The challenging causation component which requires some degree of statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and recommendations to managers are explored and provided toward the end of the paper.Design/methodology/approachIt is a legal paper which covers all the laws related to discrimination based on disparate impact and disparate treatment theories. Actual court cases up until this month and Americans laws related to this concept are reviewed and critically discussed.FindingsThe salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results and not discriminatory intent.Research limitations/implicationsThis paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed.Practical implicationsManagers and employees can protect themselves in the workplace from illegal discriminatory practices. Initially, employers and managers must be aware of the distinction between a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required. Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or practice caused an adverse disproportionate impact on the employee as a member of a protected class.Social implicationsHuman resources professionals and managers must become educated in diversity laws in order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height, weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance.Originality/valueThis is an original paper by the authors.

Sex Segregation in Sports as a Public Health Issue

This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health. The Article proceeds as follows. Part I surveys the arguments regarding sex segregation in sports and summarize the current state of the law. Part II considers sex segregation as a public health issue, noting the relationship between sports participation and a variety of physical, mental, and emotional health issues for women. To the extent that sex segregation depresses or alters women’s participation in sports, that issue is one implicating important public health considerations. Finally, Part III discusses the implications of treating sex segregation in sports as a public health issue, both for the law and for sports more broadly.

Partisan Gerrymandering: Is There No Shame in It or Have Politicians Become Shameless?

Thirty years ago, the Supreme Court held that gerrymandering districts to favor one party discriminates against those who vote for the disadvantaged party and thus violates the Equal Protection Clause. But the justices have struggled to agree on a test. Although no one describes rigging a district map to give one party an unfair advantage as a good thing, some come close. And therein lies the rub. If partisan gerrymandering just isn’t that bad, it becomes hard to muster the political will to strike it down, even if virtually everyone agrees that some gerrymanders are unconstitutional. By granting certiorari in Gill v. Whitford – a case in which a three-judge district court struck down a state legislative district map as an unlawful partisan gerrymander – the Supreme Court may finally be ready to answer that question. Perhaps surprisingly, the fundamental question – how bad is partisan gerrymandering – has received little attention. This article shows that partisan gerrymanders are anathema to the ideal of American democracy. They produce precisely the type of unchecked decision-making that the Constitution sought to prevent. And they clash with the culture of American democracy that respects either (1) historical-boundary-based district voting or (2) proportionality between the percentage of voters who cast ballots for a party statewide and the percentage of representatives from that party in the legislature. A partisan gerrymander disrespects both of those legitimate goals. Accepting it as part and parcel of the political process would undermine the original understanding of a democratic republic embodied by the Constitution as well as the understandings of Americans throughout the nation’s history. This Article then looks to that history and culture to articulate a standard for assessing redistricting claims. Courts have struggled to draw the line separating permissible and impermissible partisan gerrymandering because no such line exists. District line drawing is not like the porridge in Goldilocks and the Three Bears – sometimes too hot or too cold, but somewhere in the middle is just right. The question is one of kind, not degree. Some types of district line-drawing accord with our heritage and some don’t. Legislators drawing a district map may take partisanship into account – just as they can take race into account – to further a legitimate objective of the democratic process. Our constitutional, legal, and democratic cultural history supports the two legitimate goals set out above – districts based on historical geographic boundaries or proportionality. A partisan advantage may legitimately arise from pursuing one of these goals, because the goal comports with our democratic heritage. By contrast, drawing lines that disrespect both historical geographic boundaries and the proportional will of all voters – as partisan gerrymandering does – has no rational basis in our shared history and thus fails to accord voters on the short end of the partisan gerrymander stick the equal protection of the law. No set of gerrymandering conduct exists such that drawing lines for the purpose of obtaining a small partisan advantage at the expense of historic boundaries and proportionality is legitimate while drawing lines to obtain a large advantage is illegitimate. Modern computer software enables the courts to analyze maps quickly to determine whether they objectively pursue either of the legitimate goals. When a map reveals disrespect for both and disproportionate results follow, a court should strike it down.

Enforcing the Equal Protection Clause: Congressional Power, Judicial Doctrine, and Constitutional Law

Enforcing the Equal Protection Clause: Congressional Power, Judicial Doctrine, and Constitutional Law

Equal moral membership: Naz Foundation and the refashioning of equality under a transformative constitution

ABSTRACTThe 2009 judgement of the Delhi High Court in the Naz Foundation vs NCT of Delhi, which decriminalized homosexuality, was widely celebrated; and the Indian Supreme Court’s reversal of that judgement in 2013 equally widely decried. Most of the analysis of the Delhi High Court’s judgement, however, tends to focus on its progressive outcome. In this essay, by reconstructing the judgement through focusing on parties’ submissions and arguments before the Court, I argue that the importance of Naz Foundation lies in how it advanced the Indian Constitution’s overarching vision of social transformation by radically re-imagining the Constitution’s promise that “the State shall not deny to any person equality before the law or the equal protection of law”. Moving away from a sterile equality jurisprudence based on rational classification and “arbitrariness”, Naz Foundation linked the Constitution’s equal protection and non-discrimination clauses to advance an alternative jurisprudence founded in ideas of inclusion, dignity, autonomy and remedying structural disadvantage. In doing so, I will argue, it presented a new vision of equality that is truer and more faithful to the Constitution’s transformative character, and opens up new possibilities for discrimination jurisprudence in the years to come.

Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages

This Article challenges a practice in tort law that is ubiquitous, yet little noticed—namely the use of race-based wage, life expectancy, and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This Article argues that the use of such tables is not only unfair; it is unconstitutional. Specifically, the Article argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The Article goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.

The Political Process, Equal Protection and Substantive Due Process

In its landmark decision in Carolene Products, the Supreme Court crafted a uniquely American solution to the counter-majoritarian dilemma present in any constitutional democracy: when unelected judges should substantively review policy choices made by elected legislators and executives. The political process theory underlying that decision is that a Court with a history of decisions based on judicial ideology should limit close review of government actions to three situations: (1) when the action contravenes a specific provision of the Bill of Rights, (2) when the action threatens to improperly limit the political process, or (3) with regard to the broadly worded Due Process and Equal Protection Clauses, when courts determine that the political process does not work normally. The Court has not faithfully implemented this approach over the years. However, neither justices nor commentators have developed a superior alternative approach. We believe that most Americans ought to prefer a return to Carolene Products, as superior (either philosophically or because of risk aversion) to leaving important constitutional precedents subject to the vagaries of highly partisan politics. Our approach builds upon insights of Justices Harlan Fiske Stone, Robert Jackson, and Thurgood Marshall. First, courts should consider challenges initially under the Equal Protection Clause. Second, the category of cases warranting heightened judicial scrutiny should be expanded to include claimants who can prove that they are excluded from Madisonian factional “wheeling and dealing” that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can demonstrate that animus or prejudice precludes their ability to use the political process to redress their grievances.

Praying for America: The Constitutional Ban on Animus-Based and Theocratic Reasoning in the Establishment, Free Exercise and Equal Protection Clauses

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise clauses share a common principle prohibiting state action that is based on “theocratic” reasoning. Drawing on the free-exercise case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, I propose the “anti-theocracy principle” to describe the ban on theocratic state reasoning. According to the anti-theocracy principle, state action must meet two requirements. The first, “secular independence” requirement is that in addition to any religious reasons for laws, the state must have secular reasons available that can appeal to non-religious citizens. The second, “equal status” requirement is that state speech or reasoning must respect the equal status of citizens regardless of their race, gender, or sexual orientation. Although I develop and defend the anti-theocracy principle with reference to free exercise jurisprudence, I also argue that the anti-theocracy principle should be made explicit in the Court’s Equal Protection gay rights jurisprudence. Laws restricting gay rights are sometimes motivated by theocratic reasons. But laws discriminating against gays, like laws based in racial animus, lack a legitimate purpose. Having grounded the anti-theocracy principle in two fundamental constitutional provisions, I then extend it to recent controversies over the Establishment of religion. I argue that the anti-theocracy principle rightly constrains state expression, and not just state coercive action. It is therefore a more restrictive account of the Establishment Clause than Justice Kennedy’s “coercion test” from Lee v. Weisman, and it offers a way of clarifying and refining Justice O’Conner’s “endorsement test” from Lynch v. Donnelly.

Avoyelles Parish Public Schools: Louisiana School for the Agricultural Sciencess Admission Policies as a Breeding Ground for a Return to Legal Segregation

In the landmark decision of Brown v. Board of Education of Topeka, Kansas, the United States Supreme Court declared that doctrine of “separate but equal” was unconstitutional; however, nearly six decades later schools are divided along racial lines. Avoyelles Parish Public Schools have been under specific order to effectively desegregate its schools and achieve unitary status since 1954. Avoyelles Parish School Board has been placed under three desegregation decrees, the first of which was issued in 1969. Avoyelles Parish has failed to effectively desegregate its schools pursuant to the orders outlined in the desegregation decrees. The author seeks to uncover how Avoyelles Parish has attempted to circumvent the goals outlined in the desegregation decree by implementing a charter school that admits students by using subjective admission standards. Specifically, Avoyelles Parish has sought to continue the destructive cycle of racial segregation in its schools by applying measures that are designed to limit the number of African-American students that are admitted to the school. For example, Avoyelles Parish has implemented a number of factors (sibling requirement, parent employment) that contribute to the amount of points allocated to certain students. The admission requirements violate the Equal Protection Clause of the Fourteenth Amendment because they were designed with the intent of discriminating against a particular class of people and the effect of such policies actually does discriminate against African-American students. She concludes that for Avoyelles Parish to effectively adhere to the desegregation decree and successfully integrate its schools, the federal government must continue to actively participate in the desegregation process. Additionally, the factors that are used in the admission process must be abolished.

Public Restrooms: Flipping the Default Rules

This article argues that single-sex public restrooms violate the equal protection clause of the Constitution because they constitute a violation of sexual stereotyping and formal equality principles. Restrooms signs are symbolic “Barbie” dolls with their exaggerated and reinforcing sense of what it means to be “female.” Even if the iconic stick-figure signage were to change, people must needlessly sort themselves by gender each time they use a public restroom and comply with the differing gender-based norms within those spaces. They also violate formal equality principles as they echo the educational segregation of the past when students lined up by sex each time they entered the school building and perpetuate a type of all-male private club by excluding women from business, social, and political interactions with men. The article makes the novel suggestion that we should flip the default rules. We should transition towards making large, communal public restrooms available to “all-comers,” with a variety of private toileting options, as well as have available a limited number of single-stall restrooms. This solution would allow anyone to pick an entirely private option of a single stall while not forcing anyone to sex-identify as a precondition to entering a communal restroom. The stick-figure signage of sex-segregation would become an historical relic.

Against Women's Sports

This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. It reflects and reinforces a long-disproven binary view of both sex and gender. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex are more important determinants of athletic ability. It reinforces unfounded gender stereotypes that harm both women and men. And sex segregation uncritically prioritizes athletic activities involving strengths typically associated with male bodies, without forcing us to ask why we view these strengths as the most important in the first place. Sex segregation should not be the default in sports. Rather, if the entity that regulates a sport believes the sport should be segregated by sex, that entity should meet a burden equivalent to intermediate scrutiny by articulating why sex segregation is substantially related to an important interest. If the regulatory entity is governmental, then relevant constitutional provisions and federal laws, including the Equal Protection Clause and Title IX, already reflect this obligation. And even when the regulatory entity is private, a test analogous to intermediate scrutiny should be required to justify sex segregation as a matter of policy. The Article does not claim that we should do away with all sex segregation in sports. Indeed, at times sex segregation is likely the best choice. But we should think carefully and critically about when and why we engage in such segregation. A thoughtful reexamination of the sex segregation norm we have too long taken for granted will improve sports for everyone.

From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.