58 Hastings L.J. [i] (2006-2007)

handle is hein.journals/hastlj58 and id is 1 raw text is: HASTINGS LAW JOURNAL
VOLUME 58                                             2006-2007
TABLE OF CONTENTS
ARTICLES
THE VOTING RIGHTS ACT AND THE RACIAL GAP IN LOST VOTES
Paul M oke and Richard B. Saphire ..................................................  I
Recent presidential and gubernatorial elections have exposed
serious flaws in the process by which American voters participate
in the democratic franchise. Studies have shown that African-
Americans who use inferior punch card technology are more
likely than non-African-Americans to be disenfranchised
because of unintentional errors in the use of voting equipment.
Following the disputed 2000 presidential election, several civil
rights and civil liberties organizations used section 2 of the
Voting Rights Act to challenge state voting technology, arguing
that punch card equipment has an adverse impact on racial
minorities.
This Article examines the empirical evidence on voting technol-
ogy, residual votes, and the disenfranchisement of African-
Americans, as well as the difficulties of using this information in
legal challenges. The authors then develop a legal framework for
pursuing voting technology cases under section 2 of the
Voting Rights Act. It explores two mutually exclusive
approaches to the causation requirement-the dispositive force
test and the external factor test-and concludes that the latter is
more consistent with Congress's goals for section 2. The authors
then examine the expert evidence submitted by both sides in sev-
eral recent voting technology cases, including Stewart v. Black-
well.  The    Article  concludes  by   offering  several
justifications for why the racial gap in lost votes should be
actionable under section 2 of the Voting Rights Act and warrant
an active judicial role.
IS AN ADVERTISEMENT AN OFFER? WHY IT Is, AND WHY IT MATTERS
Jay M. Feinman and Stephen R. Brill ..............................................  6i
Courts and scholars uniformly recite the rule of contract law
familiar to all first-year students: An advertisement is not an
offer. The courts and scholars are wrong. An advertisement is an

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