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
THE “MAJOR QUESTIONS” SHACKLES: PREDICTING THE OUTCOME OF DEPARTMENT OF EDUCATION v. BROWN AND A WARNING ON THE POTENTIAL CONSEQUENCES OF A CONSTRAINED ADMINISTRATIVE STATE
By: James Carlton, Volume 107 Staff Member On February 28th, the Supreme Court will hear arguments in two cases that will decide the constitutionality of President Biden’s student loan forgiveness program: Department of Education v. Brown and Biden v. Nebraska.[1] While the immediate ramifications of…
OBJECTIVELY REASONABLE FRAUD?: THE SUPREME COURT’S UPCOMING FCA DECISION WILL RESOLVE CIRCUIT SPLIT OVER SCIENTER ELEMENT
By: Carly Heying, Volume 107 Staff Member On January 13, 2023, after urging by the U.S. Solicitor General and Senator Chuck Grassley (R-Iowa),[1] the Supreme Court agreed to take up a pair of consolidated False Claims Act cases addressing “whether and when a defendant’s contemporaneous…
THOMAS ON TRIAL: HOW SUPREME COURT JUSTICE CLARENCE THOMAS HAS INFLUENCED THE CURRENT AFFIRMATIVE ACTION CASES BEFORE THE COURT
By: Dahlia Wilson, Volume 107 Staff Member In the 2022–23 term, the Supreme Court is faced with two seminal cases regarding universities’ uses of “affirmative action”—a.k.a. the consideration of race—in their admissions practices. Both Students for Fair Admissions v. University of North Carolina[1] and Students…
READING TO BECOME A DIFFERENT TYPE OF “PRACTICE-READY” LAWYER: WHAT NO MORE POLICE CAN TEACH LAW STUDENTS ABOUT THEIR ROLE IN THE MOVEMENT FOR PRISON-INDUSTRIAL-COMPLEX ABOLITION
By: Lucy Chin, Volume 107 Staff Member A small minority of the 1.3 million lawyers in the country engage in work that explicitly concerns community-based advocacy and movement lawyering.[1] And yet, our profession—like most in the past few years—has been unable to avoid confronting fundamental…
NOVEL REGULATIONS AND HISTORICAL ANALOGUES: A SAN JOSÉ ORDINANCE TESTS THE BOUNDARIES OF THE SECOND AMENDMENT
By: Toph Beach, Volume 107 Staff Member On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, striking down a New York firearm restriction and pioneering a new test for Second Amendment cases.[1] Under Bruen, gun regulations must…
COVERED BY CANNABIS?: MINNESOTA SUPREME COURT RULES THAT WORKERS’ COMPENSATION WILL NOT COVER MEDICAL MARIJUANA
By: Chelsea M. Trudgeon, Volume 107 Staff Member I. MINNESOTA SUPREME COURT RULINGS In October 2021, the Minnesota Supreme Court issued decisions in Musta v. Mendota Heights Dental Center[1] and Bierbach v. Digger’s Polaris[2] addressing reimbursement of medical marijuana under workers’ compensation claims.[3] Under the…
THE TRY GUYS TRY RESPONDING TO A RELATIONSHIP AT WORK: THE LEGAL IMPLICATIONS OF CONSENSUAL WORKPLACE RELATIONSHIPS
By: Mollie Clark Ahsan, Volume 107 Staff Member Over the past few months, famous YouTube creators The Try Guys have navigated a worldwide scandal surrounding one of the co-owners of their media company.[1] The scandal highlights the legal ambiguity that exists when workplace relationships take…
BACK FOR SECONDS: PREDICTING THE OUTCOME OF UNITED STATES v. TEXAS BASED ON BIDEN v. TEXAS
By: Maya Wells Hermerding, Volume 107 Staff Member In its second major immigration-related case of the term, the Supreme Court will weigh the executive branch’s authority to regulate immigration policy as conservative states contend that the Biden administration’s policies put them at a disadvantage.[1] In…
HOLLOW STATEMENT OR EMPTY PROMISE: OREGON’S “RIGHT TO HEALTHCARE” AMENDMENT IS NOT EQUIPPED TO ACHIEVE ITS GOALS, WHATEVER THEY ARE
By: Patrick Ebeling, Volume 107 Staff Member In the November 8, 2022, election, Oregon voters narrowly approved Senate Joint Resolution 12 (SJR 12), the Right to Healthcare Amendment.[1] SJR 12 amends the Oregon state constitution to read: (1) It is the obligation of the state…
READY FOR LANDING: AFTER CONCLUDING “PILOT PROGRAM,” MINNESOTA’S ENVIRONMENTAL QUALITY BOARD DELIBERATES LONG AWAITED ENVIRONMENTAL REVIEW CLIMATE CONSIDERATION REQUIREMENTS
By: Giuseppe Tumminello, Volume 107 Staff Member On October 19, 2022, the Minnesota Environmental Quality Board (EQB) hosted a public Environmental Review Implementation Subcommittee (ERIS) meeting. The ERIS reviewed the results from a Pilot Program it organized in order to incorporate climate change considerations on…
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…