Law Commons^™

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

Toward Accessing Hiv-Preventative Medication In Prisons, Scott Shimizu

Northwestern University Law Review

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel …

The State Secrets Privilege: An Institutional Process Approach, Alexandra B. Dakich

Northwestern University Law Review

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert …

Reimagining Public Safety, Brandon Hasbrouck

Northwestern University Law Review

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander

Northwestern University Law Review

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

Section 5'S Forgotten Years: Congressional Power To Enforce The Fourteenth Amendment Before Katzenbach V. Morgan, Christopher W. Schmidt

Northwestern University Law Review

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Opinions I Should Have Written, Judge Nancy Gertner (Ret.)

Northwestern University Law Review

In 1991, the Chicago law firm of Pope & John Ltd. established a lecture series at Northwestern University School of Law. The Pope & John Lecture on Professionalism focuses on the many dimensions of a lawyer’s professional responsibility, including legal ethics, public service, professional civility, pro bono representation, and standards of conduct. The Northwestern University Law Review is pleased to present the November 12, 2014 Pope & John Lecture by Judge Nancy Gertner.