Digital Commons Network^™

The Perils Of Supreme Court Intervention In Previously Technical Immigration Cases, Nancy Morawetz

Faculty Articles

The post-Kennedy Court has altered its approach to immigration law issues that the Court previously treated as technical. Surveying cases from 2001 through 2018 of technical issues related to the deportability and relief eligibility of noncitizens with past criminal convictions, this Article shows that the Court often ruled unanimously either for or against the noncitizen and that relatively few cases were decided on conventional ideological grounds. Since Justice Kennedy’s retirement, however, the two first highly technical cases concerning eligibility for relief from deportation for noncitizens with convictions were decided on conventional ideological grounds. Furthermore, the Court’s opinions show a disdain …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

Faculty Articles

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities. Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

Legitimizing Illegitimacy In Constitutional Law, Melissa Murray

Faculty Articles

The traditional constitutional law course is a staple of the first-year law school curriculum and a gateway to more advanced public law courses. In constitutional law, students are introduced to a range of topics—separation of powers, judicial review, suspect classifications, and protections for individual rights, among others. But curiously, few constitutional law courses discuss illegitimacy and the constitutional issues that nonmarital birth presents. This is perhaps surprising. After all, nonmarital births have grown increasingly common in the United States. More than forty percent of American children are born outside of marriage, and studies show that illegitimacy is especially pronounced among …

Election Law In An Age Of Distrust, Richard H. Pildes

Faculty Articles

Election law now operates in a sea of pervasive distrust. The voting wars have led to continual contestation over substantive voting policies. This distrust now also extends to the institutional side of the election process, with concerns that state legislatures, or state executive officials, or local election administrators, or Congress might seek to corrupt the process for partisan ends. This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay identifies …

Equal Protection In Dobbs And Beyond: How States Protect Life Inside And Outside Of The Abortion Context, Reva B. Siegel, Serena Mayeri, Melissa Murray

Faculty Articles

In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case …

Democracies In The Age Of Fragmentation, Richard H. Pildes

Faculty Articles

American democracy faces profound challenges in our era. Some of these challenges stem from features in the institutional design of democracy that are hard-wired into the Constitution; those challenges, unique to the United States, are the ones Steven Levitsky focused on in his provocative lecture. But other major challenges confronting American democracy are common to most major democracies in the West today. It is those more general challenges on which I want to focus in this Essay. Over the last generation, democratic governments across the West, including the United States, have entered into a new era of politics that I …

The Case For Reparations For The Color Of Covid, José E. Alvarez

Faculty Articles

This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The “color of COVID” results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups. Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the …

Because They Are Lawyers First And Foremost: Ethics Rules And Other Strategies To Protect The Justice Department From A Faithless President, Stephen Gillers

Faculty Articles

During the Trump presidency, Americans were reminded that the nation relies on norms or custom—not laws alone—to protect the Department of Justice and the rule of law from improper political interference. The Justice Department is an agency within the Executive Branch and the Supreme Court has told us that the executive power—“all of it”—resides in the President alone, implying that the President can use the Department anyway he wishes limited only by the Constitution and by laws that do not violate separation of powers principles. Which laws are those? This Article concludes that Congress can do only a little to …

Presidential Transitions: The New Rules, Bethany A. Davis Noll, Richard L. Revesz

Faculty Articles

The Trump Administration was unusually aggressive in using an obscure set of tools to undo the Obama Administration’s regulatory legacy: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. These actions could be seen as part of the Trump Administration norm-breaking approach to regulatory policy, under which it also provided shoddy justifications for its actions, ignored statutory commands, and failed to comply with procedural requirements. There has been a general assumption that the norm-breaking was a result of the Trump Administration’s lack of respect for the rule of law …

The Antifascist Roots Of Presidential Administration, Noah A. Rosenblum

Faculty Articles

This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws out the consequences of these overlooked developments for presidential administration today. The Article takes inspiration from the turn to history in Article II scholarship and jurisprudence. In search of legitimating foundations, champions of presidential administration have embraced the …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

Beyond Compulsory Licensing: Pfizer Shares Its Covid-19 Medicines With The Patent Pool, Chenglin Liu

Faculty Articles

On March 15, 2022, the United States, European Union, India, and South Africa reached an agreement on the waiver of intellectual property rights (IP rights) for COVID-19 vaccines. The waiver agreement has rekindled the debate on the balance between IP rights protection and equitable access to medicines during a public health crisis. India, South Africa, and other developing countries maintain that a waiver was the only way to make vaccines affordable and accessible. Leading pharmaceutical companies argue that the waiver will stifle innovation and make lifesaving medicines less accessible. Both sides have seemingly overlooked Pfizer's voluntary agreement with the Medicines …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Faculty Articles

New York Times Co. v. Sullivan is a foundational, well regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution including libel of public figures and public officials.

This Essay connects Justice Thomas's calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle …

Reimagining Corporate Accountability: Moving Beyond Human Rights Due Diligence, Rachel Chambers, Jena Martin

Faculty Articles

The global movement towards the adoption of human rights due diligence laws is gaining momentum. Starting in France, moving to Germany, and now at the European Union level, lawmakers are heeding the call to mandate that companies conduct human rights due diligence throughout their global operations. The situation in the United States is very different: although ESG (environmental, social, and governance) has received increasing national attention, there is currently no law that mandates corporate human rights due diligence.

Recognizing this disparity and acknowledging the specific context for ESG-related issues in the United States, we consider how the United States could …

The Roberts Court And Class Litigation: Revolution, Evolution, And Work To Be Done, Richard D. Freer

Faculty Articles

Since 2005, when John Roberts was appointed Chief Justice, there have been startling changes to the world of class actions. Jurisdictionally, the Class Action Fairness Act of 2005 fundamentally reconfigured the allocation of class litigation between federal and state courts. Federal Rule of Civil Procedure 23, the federal class action provision, has been amended three times in the Roberts years, once in a meaningful way. Our focus, however, is on what the Roberts Court has done in the class action world through its caselaw. On that score, we have a remarkable corpus. From Shady Grove Orthopedic Associates, P.A. v. …

From Contacts To Relatedness: Invigorating The Promise Of "Fair Play And Substantial Justice" In Personal Jurisdiction Doctrine, Richard D. Freer

Faculty Articles

Personal jurisdiction is integral to access to justice. Without a convenient court, plaintiffs’ efforts to vindicate claims (and society’s interest in private enforcement of law) may be thwarted. After considerable engagement in between 1977 and 1990, the Supreme Court did not decide a personal jurisdiction case between 1990 and 2011. This Symposium addresses what the Court has done regarding personal jurisdiction in the “new era” that started in 2011. That year brought a specific jurisdiction decision, J. McIntyre Machinery, Ltd. v. Nicastro, and a general jurisdiction decision, Goodyear Dunlop Tires Operations, S.A. v. Brown. The former broke no …

Rational Actors, Class Action Waivers, And The Emergence Of Mass Individual Arbitration Demands, Richard D. Freer

Faculty Articles

Part I of this Article gives a brief overview of the FAA, including the four understandings that underlay the Court’s jurisprudence for six decades, and the radical transformation wrought by the Court’s rejection of those understandings in the past four decades. Part II discusses how the transformation of the FAA led plaintiff and defense counsel, as rational actors, to adopt positions that ultimately led to the focus on class action waivers. Part III analyzes the Court’s decisions from 2013 to the present and draws at least some tentative conclusions about where things stand a decade after Professor Wasserman raised these …

Medicare "Bankruptcy", Matthew B. Lawrence

Faculty Articles

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

The Sec’S Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

Faculty Articles

Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship, Deepa Das Acevedo

Faculty Articles

The study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and …

Antidiscrimination And Tax Exemption, Alex Zhang

Faculty Articles

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy— including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But almost four decades later, the decision has never realized its antidiscriminatory potential. The Internal Revenue Service (IRS) has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …