Law Commons^™

Housing, Healthism, And The Hud Smoke-Free Policy, Dave Fagundes, Jessica L. Roberts

NULR Online

No abstract provided.

Charity Disparity: The Challenge Of Applying Religious Law On Zakāt In The United States, Ahmed E. Taha, Sohaib I. Khan

Northwestern Journal of Law & Social Policy

No abstract provided.

Long-Term Preservation Of Public Art: From Cultural Heritage To The Confederacy, Maliha Ikram

Northwestern Journal of Law & Social Policy

No abstract provided.

If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello

Northwestern Journal of Law & Social Policy

No abstract provided.

42 U.S.C. § 1981’S Equal Benefit Clause: Debating The Application To Private Actor Discrimination, Lauren Pope

Northwestern Journal of Law & Social Policy

No abstract provided.

Is That Appropriate?: Clarifying The Idea's Free Appropriate Public Education Standard Post-Endrew F., Josh Cowin

Northwestern University Law Review

The Individuals with Disabilities Education Act (IDEA) requires schools to provide all students who qualify for special education services with a free appropriate public education (FAPE). However, the IDEA does not specify how much substantive educational benefit students must be afforded in order to receive a FAPE, leaving this question for the courts. For over thirty years, courts split over the amount of educational benefit that school districts must provide to their special education students, leading to significant confusion and anxiety among parents and school officials regarding their legal rights. The Supreme Court sought to clarify this standard in Endrew …

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Northwestern University Law Review

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …

Explicit Bias, Jessica A. Clarke

Northwestern University Law Review

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

You Are Where You Eat: Discrimination In The National School Lunch Program, Anna Karnaze

Northwestern University Law Review

The National School Lunch Program (NSLP) serves over thirty million children daily in over one hundred thousand schools across the United States. Though it is regulated at the federal level, state and local education agencies have a great deal of authority when it comes to actually implementing the NSLP. As a result, a number of schools nationwide have adopted practices that identify students who participate in the NSLP, which causes those students to experience stigmatization. This Note focuses on two of these practices: (1) the physical separation of paying and nonpaying students in the cafeteria, often resulting in de facto …

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can …

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

NULR Online

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

Traceable Shares And Corporate Law, George S. Geis

Northwestern University Law Review

A healthy system of shareholder voting is crucial for any regime of corporate law. The proper allocation of governance power is subject to debate, of course, but the fitness of the underlying mechanism used to stuff the ballot boxes should concern everyone. Proponents of shareholder power, for instance, cannot argue for greater control if the legitimacy of the resulting tallies is suspect. And those who advocate for board deference do so on the bedrock of authority that reliable shareholder elections supposedly confer.

Unfortunately, our trust in the corporate franchise was forged during an era that predates modern complexities in the …

Deal Structure, Cathy Hwang, Matthew Jennejohn

Northwestern University Law Review

Modern commercial contracts—those governing mergers and acquisitions and financial derivatives, for instance—have become structurally complex and interconnected. Yet contract law largely ignores structural complexity. This Article develops a theory of “contractual structuralism” to explain the important role of structure in every aspect of contract law, from the design of a contract to courts’ interpretation and enforcement.

For generations, scholars have debated whether a court should consider only the text of a contract or also consider broader context to determine parties’ intent. More recently, scholars have shown that parties can choose between textual and contextual interpretation by drafting a contract provision …

Who, What, And Where: A Case For A Multifactor Balancing Test As A Solution To Abuse Of Nationwide Injunctions, Matthew Erickson

Northwestern University Law Review

There has been a significant increase in the use of a controversial, dramatic remedy known as the nationwide injunction. This development is worrisome because it risks substantial harm to the judiciary by encouraging forum shopping, freezing the “percolation” of legal issues among the circuits, and undermining the comity between the federal courts. But a complete ban on nationwide injunctions is both impractical and undesirable. This Note proposes a solution to limit the abuse of nationwide injunctions without banning them outright. When fashioning remedies, courts should simplify the sheer number of relevant factors by focusing on three main meta-factors, or categories, …

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

Northwestern University Law Review

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

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 …

Bleeding Women Dry: Tampon Taxes And Menstrual Inequity, Jorene Ooi

Northwestern University Law Review

In recent years, the problem of menstrual inequity has attracted increased attention. Most states impose a sales tax on menstrual hygiene products—a “tampon tax.” A burgeoning social movement has sought to end the tampon tax, and lawmakers have taken notice by introducing, and in some cases successfully passing, measures to repeal the tax by exempting menstrual hygiene products from the sales tax. This Note evaluates, from a tax policy standpoint, the pros and cons of repealing the tampon tax. It argues that although repeal is usually undesirable as a matter of tax design, the tax should nevertheless be repealed both …

Sex Offender Civil Commitment To Prison Post-Kingsley, Arielle W. Tolman

Northwestern University Law Review

Today, an estimated 5400 people are civilly committed under state and federal sex offender programs. This Note surveys these civil commitment regimes and finds that seventeen jurisdictions (sixteen states and the federal government) have enacted legislative schemes that authorize the indefinite civil detention of people charged with, or previously convicted of, sex offenses to prisons or prison-like facilities—often for their entire lives. By charting the pervasiveness of sex offender civil commitment to prison, this Note provides new evidence that these sex offender civil commitment statutes are, in fact, punitive and, therefore, unconstitutional. Moreover, this Note argues that the Supreme Court’s …

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. …

Personal Jurisdiction And Aggregation, Scott Dodson

Northwestern University Law Review

Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation for its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn in personal jurisdiction—seen in modern cases narrowing general jurisdiction and October Term 2016’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a number of areas, including …

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel

Northwestern University Law Review

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that …

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 …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut

Northwestern University Law Review

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a quality education. …

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 …

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.