Arkansas Law Review

Volume 74, Number 2 (2021)


Symposium: Giving Korematsu v. United States A Sober Second Thought

Nick Bell, Emily Levy, Julian Sharp

We are elated to present Professor Mark Killenbeck’s thought provoking article, Sober Second Thought? Korematsu Reconsidered. Killenbeck dives into the Korematsu opinion and its history with great care to determine whether it truly “has no place in law under the Constitution” as Chief Justice John Roberts declared in Trump v. Hawaii. While Korematsu’s result provides an understandable “impulse to condemn” it, Killenbeck shows us that focusing solely on the case’s result “stands apart from and in stark contrast to its most important place in the constitutional order: articulation of precepts and terminology that provide the foundations for strict scrutiny.”


Sober Second Thought? Korematsu Reconsidered

Mark Killenbeck

How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer’s caution about decisions that have “harm[ed] not just the Court, but the Nation.” Part of an “Anticanon,” resting on “little more than naked racism and associated hokum” and “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute”? Perhaps. Or is it simply an opinion and result that “has long stood out as a stain that is almost universally recognized as a shameful mistake”?


Korematsu as the Tribute that Vice Pays to Virtue

Jack M. Balkin

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed to actually utilize” strict scrutiny. “In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents.”


Korematsu, Hawaii, and Pedagogy

Sanford Levinson

I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and the unfortunate certainty that what I was in fact doing was, at best, the barest skimming of rich surfaces. As a matter of fact, I am quite certain that I covered far less material than most of my colleagues, but that did almost nothing to alleviate my constant feeling, freely expressed to the students, that we were in fact “racing” through the material and, therefore, doing genuine intellectual justice to almost nothing that was ostensibly being discussed. I compared the course to a college “mixer” where one engaged in several superficial conversations hoping to elicit just enough information to know whether it might be desirable to seek out further contact.


Tainted Precedent

Darrell A.H. Miller

We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability, and rule of law, does not treat every case it hears as one of first impression—its justices work through forests of precedent (of variable density) in reaching its decisions. And this presents a problem that Professor Killenbeck has identified in his article—what happens when a reasonable, even valuable, proposition of law is found buried deep within problematic or even odious opinions? Unlike some civil law countries, or even some states, there’s no convention in federal constitutional law that permits someone to simply cite a legal proposition—”racial classifications are subject to strict scrutiny”—completely disentangled from the factual circumstances—or persons—that give voice to the decision. And therein lies the problem. Sometimes the legal proposition from an opinion—strict scrutiny—is besmirched with some fairly obnoxious facts. Indeed, sometimes the authors, facts, reasoning, or results are so reviled, that the opinion—whatever kernels of wisdom it may contain—is considered anti-canonical. What to do with this tainted precedent? This short reflection on Professor Killenbeck’s article offers some thoughts on the topic.


There was Nothing "Neutral" about Executive Order 9066

Eric L. Muller

There is no more appropriate place to discuss the Japanese American cases of World War II than in the pages of the Arkansas Law Review. This is not only because Arkansas was the only state outside the Western Defense Command to host not one but two of the War Relocation Authority’s (WRA) concentration camps for Japanese Americans. It is because one of the most important lawyers to oversee the development and administration of all the WRA camps was the dean under whose leadership this law review was founded: Robert A. Leflar. Leflar’s is not a name that constitutional lawyers are likely to remember in connection with the mass removal and detention of Japanese Americans in World War II. That’s because he, unlike a Charles Fahy or an Edward Ennis, had no role in Korematsu v. United States, the notorious Supreme Court decision that is the subject of Mark Killenbeck’s article Sober Second Thought? Korematsu Reconsidered. But he played a much bigger role than those men, supervising the day-to-day work of the agency lawyers stationed at each of the camps from 1942 to 1944. It was Leflar and a few other lawyers at his level who shaped the circumstances under which Japanese Americans were confined and ultimately released.


A Proper Burial

Robert L. Tsai

In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe that comparisons between the two disputes are warranted. When the two controversies are brought together, they underscore several themes about our prevailing constitutional order: whether during war or peacetime, a president can harm politically unpopular minorities through the law in a variety of ways, judges consistently have difficulty reaching consensus to do anything about the unequal burdens imposed by presidential policies on out-groups, and as a result, we need stronger reforms that can prevent such harms in the future.


A Government of Laws that is a Government of Men and Women

Mark Tushnet

I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication. So, for example, we know that legislators and high-level administrators can adopt policies that say nothing whatsoever about race—regulations about stopping cars to enforce safety regulations, for example—that police officers on the ground can apply discriminatorily. Korematsu and Trump v. Hawaii show us a government of laws that is also a government of men and women can be infected at each stage, in quite complex ways, by the racism of those men and women even when they also acknowledge that the laws to which they are subject (and that they are making and interpreting) condemn racism. Legal actors simultaneously deny and affirm that racism infects the law: deny it when they focus on the “government of laws” part of the saying, affirm it when they focus on the “government of men and women” part.


Fighting the FTCA: Medical Malpractice, Veterans, and the VA

Taylor C. Spillers

Dr. Levy, who served as the Chief of Pathology at the Fayetteville Veterans Health Care System of the Ozarks (“Fayetteville VA”) from 2005 to 2018, diagnosed veterans with an error rate of 10%. The “pathology practice average is 0.7%.” Of the more than 3,000 cases Dr. Levy misdiagnosed, 589 were classified as “Level 3 (major) errors” which should always “trigger an [internal] investigation.” Unfortunately, no investigations ensued until Dr. Levy’s ultimate arrest, although the Fayetteville VA addressed Dr. Levy’s behavior repeatedly throughout his employment.


Recent Developments

Clinton T. Summers

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.