Articles, Essays, & Tributes
Animal Plaintiffs
By Matthew Liebman. Full Text. From endangered Hawaiian songbirds to dolphins deafened by Navy sonar to a neglected horse named Justice, nonhuman animals increasingly appear as plaintiffs in lawsuits alleging their subjection to extinction, abuse, and other injustices. These cases are far more than mere novelties or publicity stunts; they raise important jurisprudential questions about…
Article III and Indian Tribes
By Grant Christensen. Full Text. Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenet and unilaterally declared a plenary judicial power to review the…
Contract Customization, Sex, and Islamic Law
By Rabea Benhalim. Full Text. Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships…
Fixing Disparate Prosecution
Shima Baradaran Baughman and Jensen Lillquist. Full Text. America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states…
Platform Unions
By Charlotte Garden. Full Text. How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete.…
Notes
Two Is Not Always Better than One: Concurrent Criminal Jurisdiction in Indian Country and the Withering of Tribal Sovereignty Following McGirt and Castro-Huerta
By Marina Berardino. Full Text. There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence—over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often,…
The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem
By Tyler Blackmon. Full Text. While the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions—with named plaintiffs representing larger classes of plaintiffs—Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are…
Modern Statutory Interpolation: Correcting Court-Made Deficiencies in Title VII Law
By Jordan Boudreaux. Full Text. Title VII of the Civil Rights Act of 1964 is a monumentally important piece of legislation that ensures all Americans can enjoy a fair workplace, free of discrimination. Even so, the federal circuits remain split on a significant aspect of Title VII’s interpretation. Notably, in some circuits, employees can still…
Headnotes
Teaching “Is This Case Rightly Decided?”
By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay…
De Novo Blog
Elon Take the Wheel
ELON TAKE THE WHEEL: MAJOR CHALLENGES THAT AUTONOMOUS CARS WILL PRESENT TO THE LEGAL SYSTEM By: Stephen Maier, Volume 101 Staff Member In May 2016, 40-year-old Joshua Brown was driving a Tesla Model S in “Autopilot mode” when a semi turned in front of him.[1]…
Re-Introducing “Stop and Frisk” or Revisiting It?
RE-INTRODUCING “STOP AND FRISK” OR REVISITING IT? By: Anabel Cassady, Volume 101 Staff Member On the evening of August 20, 2008, Leroy Downs was stopped by two plainclothes officers outside his home while making a phone call to a friend.[1] Downs was a black male…
DACA on the Docket
DACA ON THE DOCKET By: Nicholas R. Bednar, Volume 100 Lead Articles Editor [1] On December 9, 2016, Senators Lindsey Graham and Dick Durbin introduced the Bridge Act, which would provide temporary protection for undocumented children and young adults who have received immigration benefits under President…
Frozen Embryo Forum Shopping
FROZEN EMBRYO FORUM SHOPPING: HOW CONFLICTS OF LAW INHIBIT THE LAWSUIT AGAINST SOFIA VERGARA By: Joseph T. Janochoski, Volume 101 Staff Member In December 2016, actress Sofía Vergara[1] was named as the sole defendant in a Louisiana lawsuit filed by her own frozen embryos.[2] The…
Inclusive Communities and the Question of Impact
INCLUSIVE COMMUNITIES AND THE QUESTION OF IMPACT: PRO-PLAINTIFF? By: Lauren Clatch, Volume 101 Staff Member In the summer of 2015, the Supreme Court ruled in Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc. regarding the viability of disparate impact claims under…
Phasing Out Private Prisons Is an Important Symbolic Gesture
PHASING OUT PRIVATE PRISONS IS AN IMPORTANT SYMBOLIC GESTURE By: Claire Williams, Volume 101 Staff Member On August 18th, the Department of Justice (DOJ) announced that it would begin to phase out its use of private prisons, “either declin[ing] to renew that contract or substantially…
Creeping on the Constitution
CREEPING ON THE CONSTITUTION: FIRST AMENDMENT IMPLICATIONS OF THE 2016 CLOWN CRAZE By: Bethany Davidson, Volume 101 Staff Member On August 24, 2016, the property manager of an apartment complex in Greenville, South Carolina posted a concerning letter on residents’ doors.[1] The letter addressed multiple…
Is Auer Deference on the Way Out?
IS AUER DEFERENCE ON THE WAY OUT? By: Trevor Matthews, Volume 101 Staff Member In Bowles v. Seminole Rock & Sand, later reaffirmed in Auer v. Robbins, the Supreme Court announced a deferential standard of review for agency rules which interpret binding notice and comment…
Helping Others Die
HELPING OTHERS DIE: COMPARING POLICIES IN BELGIUM TO THOSE IN THE U.S. By: Ellie Bastian, Volume 101 Staff Member In the opening scenes of the Italian film Miele a woman makes her monthly journey from Europe to a Mexican pharmacy to buy Lamputin, a drug…
From “Let Us Pray” to “Let Us Reconsider”
FROM “LET US PRAY” TO “LET US RECONSIDER”: THE FOURTH CIRCUIT GRANTS EN BANC REVIEW IN LUND V. ROWAN COUNTY By: Rachel Leitschuck, Volume 101 Staff Member “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . .…
Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision
By Delaram Takyar. Full Text. In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to…