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
SCOTUS TAKES ON WOTUS: PREVIEWING SACKETT V. EPA AND ITS CONSEQUENCES FOR THE CLEAN WATER ACT
By: Sean Downey, Volume 106 Staff Member With its grant of certiorari in Sackett v. EPA, the Supreme Court will take its fourth try at resolving a question that has vexed courts, agencies, lawyers, and landowners: what are “Waters of the United States (WOTUS)?”[1] The…
A $9 BILLION SURPLUS, YET “KIDS CAN’T READ”: MINNESOTA TEACHER STRIKES MAY VIOLATE STUDENTS’ RIGHTS UNDER THE STATE CONSTITUTION AND THE LEGISLATURE HAS A DUTY TO FIX IT
By: Joshua Gutzmann, Volume 106 Staff Member After almost a full week of no school for over 31,000 students,[1] because teachers are on strike in Minneapolis,[2] the Minneapolis Federation of Teachers President declared that they were “ready to go for as long as it takes.”[3]…
REMEDYING DECADES OF DISPARITIES IN DRUG SENTENCING: HOW CONCEPCION v. UNITED STATES OPENS THE DOOR FOR BROADER RELIEF IN FIRST STEP ACT RESENTENCING PROCEEDINGS
By: Rhianna Torgerud, Volume 106 Staff Member From 1986 to 2010, one gram of crack cocaine was treated as equivalent to 100 grams of powder cocaine when setting federal statutory minimum and maximum sentences.[1] This 100-to-1 sentencing disparity was widely criticized as discriminatory against African…
THE UNITED STATES WANTED TO HAVE ITS CAKE, EAT IT, AND AVOID ITS CLEANUP COSTS, TOO
By: Olivia Carroll, Volume 106 Staff Member In 2017, the Territory of Guam brought suit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), seeking to recover costs spent on the cleanup of a contaminated site that had…
WAR POWERS UNDER ATTACK
By: Jesse Noltimier, Volume 106 Staff Member On March 29, 2022, the Supreme Court will hear oral arguments in Torres v. Texas Department of Public Safety.[1] The Court will decide whether a veteran can sue the state of Texas, his former employer, for discrimination. Beyond…
THE SUPREME COURT DILUTES MINORITY VOTER RIGHTS: THE FATE OF THE VOTER RIGHTS ACT FOLLOWING MERRILL V. MILLIGAN
By: Justin Oakland, Volume 106 Staff Member Following the 2020 census, a Republican-majority Alabama state legislature voted to redraw congressional districts to functionally dilute the voting power of Black residents.[1] Despite Black voters making up 26.8 percent of Alabama’s population, the redrawn districts only grant…
RUSSIAN WARFARE: NEW JERSEY COURT HOLDS RUSSIAN-SPONSORED CYBERATTACK NOTPETYA IS NOT PART OF WAR EXCLUSION FOR ALL-RISK INSURANCE POLICY, AND ILLINOIS MIGHT SOON FOLLOW
By: Caleb Johnson, Volume 106 Staff Member On December 6th, 2021, a New Jersey Superior Court announced in Merck & Co., Inc. v. Ace American Insurance Company that insurance companies could not use a hostilities/war exclusion to deny coverage to biopharmaceutical company Merck’s claim after…
REMEDYING DISCRIMINATION IN AGRICULTURAL LENDING: ANALYZING THE LEGAL CHALLENGES FACING THE EMERGENCY RELIEF FOR FARMERS OF COLOR ACT
By: Jackie Cuellar, Volume 106 Staff Member To alleviate the impact of the COVID-19 pandemic on the United States’ economy, Congress passed the American Rescue Plan Act of 2021 (ARPA).[1] Section 1005 of the ARPA, also referred to as the Emergency Relief for Farmers of…
DON’T FALL ASLEEP AT THE WHEEL: DELAWARE BOARDS SHOULD BE ON THE LOOKOUT FOR ESG OVERSIGHT LIABILITY
By: Nick Penn, Volume 106 Staff Member In 2019, the Supreme Court of Delaware put the boardrooms of Delaware corporations on notice with its denial of Blue Bell Creameries’ motion to dismiss a shareholder derivative suit for breach of the board’s duty of oversight.[1] The…
SOVEREIGN CITIZENS: SITTING ON THE DOCKET ALL DAY, WASTING TIME
By: Calvin Lee, Volume 106 Staff Member Sovereign Citizens: a riddle, wrapped in a mystery, inside an enigma. The once-isolated political sect has ballooned to over 300,000 followers, and the rapid proliferation of their pseudo-legal ideologies is severely compromising court efficiency.[1] Sovereign Citizens’ abject refusal…
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…