Law Commons^™

Racial Targets, Atinuke O. Adediran

Northwestern University Law Review

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Northwestern University Law Review

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

Partisanship Creep, Katherine Shaw

Northwestern University Law Review

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

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 …

Silent Today, Conversant Tomorrow: Education Adequacy As A Political Question, Yeju Hwang

Northwestern University Law Review

When the Supreme Court declined to recognize the right to education as one fundamental to liberty, and thus unprotected by the U.S. Constitution, state courts took on the mantle as the next best fora for those yearning for judicial review of inequities present in American public schools. The explicit inclusion of the right to education in each state’s constitution carried the torch of optimism into the late twentieth century. Despite half a century of litigation in the states, the condition of the nation’s public school system remains troubling and perhaps increasingly falls short of expectations. Less competitive on an international …

The Impossibility Of Corporate Political Ideology: Upholding Sec Climate Disclosures Against Compelled Commercial Speech Challenges, Erin Murphy

Northwestern University Law Review

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the …

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 Anti-Racist Imperative Of Infancy, Laura Cohen

Northwestern Journal of Law & Social Policy

In 2019, a widely disseminated video of the arrest of a six-year-old girl in her Florida elementary school provoked outrage across the country. The footage shows the girl sobbing as an armed police officer in full uniform and bullet-proof vest handcuffs and leads her from the principal’s office to a waiting patrol car. Her crime was having a temper tantrum in class after a sleepless night. When it was revealed that another six-year-old was arrested at the same school by the same officer on the same day and for similar reasons, media pundits and the general public debated questions of …

“I Saw Guns And Sharp Swords In The Hands Of Young Children”: Why Mental Health Courts For Juveniles With Autism Spectrum Disorder And Fetal Alcohol Spectrum/Disorder Are Needed, Michael Perlin, Heather Cucolo, Deborah Dorfman

Northwestern Journal of Law & Social Policy

In this Article, we offer—we believe for the first time in the scholarly literature—a potentially (at least partially) ameliorative solution to the problems faced by persons with autism (ASD) and fetal alcohol disorder (FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically for these two …

Learning Law In Elementary And High School: Innovating Civics Education For A More Empowered Citizenry, Ariel Liberman, Michael Broyde

Northwestern Journal of Law & Social Policy

A principal objective of the public school system in a democracy is to promote societal cohesion by way of preparing students for civic engagement. There exists a founding belief that a democratic nation ought to be composed of educated activists, run by innovators, and kept in check by involved citizens. For, indisputably, the democratic experiment—our values, our institutions—can only be upheld anew with each generation on the backs of critique, reinvention, and reinvigoration. But, as so many have mentioned when discussing the civics education paradigm, the increase in educational opportunities and the marked expansion of our school system has not …

Applying Movement Lawyering Principles To The Redistricting Movement, Lavanya Prabhakar

Northwestern Journal of Law & Social Policy

Despite national attention to unfair congressional district maps, efforts to make maps more representative through litigation have felt futile. However, despite unfavorable Supreme Court rulings, organizing around redistricting has seen wins on the state level, through the creation of independent redistricting commissions and map redraws. First, this Note reviews the history of race-based and partisan gerrymandering and the volatile swings of redistricting litigation. Then, it considers the role of organizing in redistricting, focusing on case studies from Ohio and North Carolina. Finally, relying on firsthand interviews and available data, this Note argues that organizing and litigation must work together under …

Incarcerated Workers Will Be Heard: Protecting The Right To Unionize Prisoners Through Dignity, Samuel Richter

Northwestern Journal of Law & Social Policy

This Comment posits that incarcerated workers possess an inherent right to unionize pursuant to human dignity. Centering dignity in this discussion highlights the ways in which prisoners’ unions secure the economic and political conditions needed to express their autonomy and foster rehabilitation. By reviewing the historical successes and missteps of the incarcerated workers’ labor movement in the United States, this Comment demonstrates that an appreciation for dignity is crucial to prevent factional violence between incarcerated people on the one hand and the over-professionalization of prisoner organization on the other. Recognizing that unionization is a matter of dignity, not free speech …

Reproductive Rights And Felony Disenfranchisement: The New Frontier Of An Old Voter Suppression Tactic, Jessie Rubini

Northwestern Journal of Law & Social Policy

Voter suppression and anti-abortion, anti-reproductive care efforts are mutually reinforcing, working together to diminish political participation, especially for women of color. I argue that politicians could use the Dobbs decision to further suppress Black voters, specifically Black women voters, by prosecuting abortions as felonies. The effect would be disenfranchisement of thousands of people. This Comment covers the connected histories of voting rights and abortion rights in America. The first section of this Comment will briefly cover the history of voting rights in America with a focus on racial discrimination. The second section will cover one voter suppression, felony disenfranchisement. Finally, …

Protecting Humanity's Cradle Of Civilization: Advancing The Right To Self-Determination For Indigenous Peoples In The Middle East & South Caucasus, Lisabelle Panossian

Northwestern Journal of Human Rights

During this paper’s drafting, an indigenous people’s independent government collapsed. For over thirty years, the Republic of Artsakh was a de facto independent region inside the internationally-recognized borders of Azerbaijan. The region comprised of an indigenous Armenian majority—until September 2023. In December 2022, Azerbaijani authorities blocked the only road that connected Nagorno-Karabakh to the outside world. This blockade resulted in shortages of food, medical supplies, and fuel, the severity of which was especially felt during a harsh winter.

After experiencing starvation and preventable medical complications under a nine month-long blockade, the Azerbaijani government launched a military incursion on the Republic …

Are They All Textualists Now?, Austin Peters

Northwestern University Law Review

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Do Patents Drive Investment In Software?, James Hicks

Northwestern University Law Review

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

The Supreme Court And Children, Aaron Tang

Northwestern University Law Review

How do children fare at the Supreme Court? Empirical research on the question is sparse, but existing accounts suggest a disheartening answer. A 1996 study found that children lost more than half of their cases in the Court, and a pair of prominent scholars lamented twenty years later that “the losses in children’s rights cases” had “outpace[d] and overwhelm[ed] the victories.”

In this Article, I present evidence that complicates this understanding. Based on an original dataset comprising 262 Supreme Court decisions between 1953 and 2023, I find that children have prevailed in 62.6% of their cases. This win rate is …

Worthless Checks? Clemency, Compassionate Release, And The Finality Of Life Without Parole, Daniel Pascoe

Northwestern University Law Review

Life without parole (LWOP) sentences are politically popular in the United States because, on their face, they claim to hold prisoners incarcerated until they die, with zero prospect of release via the regularized channel of parole. However, this view is procedurally shortsighted. After parole there is generally another remedial option for lessening or abrogating punishment: executive clemency via pardons and commutations. Increasingly, U.S. legal jurisdictions also provide for the possibility of compassionate release for lifers, usually granted by a parole board.

On paper, pardon, commutation, and compassionate release are thus direct challenges to the claim that an LWOP sentence will …

Human Rights Without Borders, Christian Gonzalez Chacon

Northwestern Journal of Human Rights

In the current global context, millions of people are forced to migrate

yearly for reasons ranging from persecution and violence, internal armed

conflicts, and forced displacement, to lack of employment and climate

change. In the Americas, we recently witnessed the phenomenon of the

“migrant caravans,” where thousands of people, mostly from the Northern

Triangle of Central America—El Salvador, Honduras, and Guatemala—

were willing to walk hundreds of miles to enter the U.S.-Mexico border to

escape poverty and violence in their countries. Another caravan of close to

10,000 migrants from the Northern Triangle of Central America including

Guatemala, El Salvador and …

The Second Founding And Self-Incrimination, William M. Carter Jr.

Northwestern University Law Review

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …

Hung Out To Try: A Rule 29 Revision To Stop Hung Jury Retrials, Elijah N. Gelman

Northwestern University Law Review

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Northwestern University Law Review

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s …

Sentence Served And No Place To Go: An Eighth Amendment Analysis Of "Dead Time" Incarceration, Christopher B. Scheren

Northwestern University Law Review

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

Data Is What Data Does: Regulating Based On Harm And Risk Instead Of Sensitive Data, Daniel J. Solove

Northwestern University Law Review

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is …

What If Criminal Lawmaking Becomes Trustworthy?, Zachary S. Price

Journal of Criminal Law and Criminology

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants. Recent shifts in the politics of crime complicate this perspective’ s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter- majoritarian judicial decisions. This Article tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics. It suggests that while arguments for narrow construction of criminal statutes will remain …

Fair Notice And Criminalizing Abortions, Brian G. Slocum, Nadia Banteka

Journal of Criminal Law and Criminology

The principle of legality requires that individuals receive “fair notice” of conduct that is criminal. Courts enforce this fair notice requirement through various interpretive principles and practices, including the void-for- vagueness doctrine. The void-for-vagueness doctrine remains undertheorized, however, despite its centrality to the interpretation of criminal statutes. We offer a new theory of the void-for-vagueness doctrine that accounts for recent Supreme Court decisions. Specifically, we propose a scalar theory that fair notice is a matter of degree, dependent on various factors. We explore the implications of this theory for anti-abortion statutes post-Dobbs and explain why many of these statutes do …

Forbidden Purposes: A New Path For Limiting Criminalization, Raff Donelson

Journal of Criminal Law and Criminology

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, …

The Rule Of Lenity As A Disruptor, Maciej Hulicki, Melanie M. Reid

Journal of Criminal Law and Criminology

This article discusses the application of the rule of lenity in the American legal system. Although this constitutes a substantial element of criminal law in the United States and has been duly established in jurisprudence and legal science, it has still not been adequately applied in judicial practice. The authors of the article reflect on this situation, analyzing the historical background and the origins of this principle, as well as its current implementation in the U.S. criminal law. The work also includes a comparative analysis, where the authors juxtapose the rule of lenity with similar principles known in civil law …

Extraterritorial State Criminal Law, Post-Dobbs, Darryl K. Brown

Journal of Criminal Law and Criminology

Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states’ criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, however, state laws …