Law Commons^™

Foreword, David L. Schwartz, Kat M. Albrecht

Northwestern University Law Review

Offering a critique is often easier than proposing a solution. This refrain echoed frequently in the months and years that we spent developing what would become the Systematic Content Analysis of Litigation EventS (SCALES) Open Knowledge Network, a project born from the collaborative efforts of experts across various disciplines.

Access To Justice As Access To Data, Tanina Rostain

Northwestern University Law Review

This Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining high-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data.

The Scales Project: Making Federal Court Records Free, David L. Schwartz, Kat M. Albrecht, Adam R. Pah, Christopher A. Cotropia, Amy Kristin Sanders, Sarath Sanga, Charlotte S. Alexander, Luís A.N. Amaral, Zachary D. Clopton, Anne M. Tucker, Thomas W. Gaylord, Scott G. Daniel, Nathan Dahlberg

Northwestern University Law Review

Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical …

Settlement As Construct: Defining And Counting Party Resolution In Federal District Court, Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker

Northwestern University Law Review

Most civil cases settle. Yet generating a definitive settlement rate presents complex definitional and empirical problems, both in what should count as a settlement and how to count it. This Essay makes three contributions to better understanding and defining settlement. First, we propose a flexible, empirically informed, operationalizable definition of settlement as party resolution. Second, we exploit a new federal litigation data source to count party resolutions using machine learning models trained on 11 million docket sheet entries. Third, we offer new findings on party resolution frequency and distribution in the federal courts. Settlement is more widely and differently deployed …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat M. Albrecht, Perry Moriearty

Northwestern University Law Review

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Lawyerless Litigants, Filing Fees, Transaction Costs, And The Federal Courts: Learning From Scales, Judith Resnik, Henry Wu, Jenn Dikler, David T. Wong, Romina Lilollari, Claire Stobb, Elizabeth Beling, Avital Fried, Anna Selbrede, Jack Sollows, Mikael Tessema, Julia Udell

Northwestern University Law Review

Two Latin phrases describing litigants—pro se (for oneself) and in forma pauperis (IFP, as a poor person)—prompt this inquiry into the relationship between self-representation and requests for filing fee waivers. We sketch the governing legal principles for people seeking relief in the federal courts, the sources of income of the federal judiciary, the differing regimes to which Congress has subjected incarcerated and nonincarcerated people filing civil lawsuits, and analyses enabled by SCALES, a newly available database that coded 2016 and 2017 federal court docket sheets. This Essay’s account of what can be learned and of the data gaps demonstrates the …

Felony Disenfranchisement And Voter Turnout: Randomized Trials In Iowa And Washington, Alexander Billy, J.J. Naddeo, Neel U. Sukhatme

Northwestern University Law Review

Prior to the 2022 midterm elections, we conducted large-scale randomized controlled trials in Iowa and Washington aimed at increasing voter turnout among newly enfranchised individuals with past felony convictions. Alongside national and grassroots partners, we designed and implemented experiments to ascertain the effectiveness of alternative outreach mechanisms, including targeted mailers and digital ads. We did not detect statistically significant or economically meaningful effects on voter registration or turnout; most observed effects were precise nulls. The absence of measured impact is likely attributed to low digital engagement with our online ads as well as extensive voter outreach already conducted by our …

The Politics Of Possession And Gun Violence: The Bruen Decision's Impact On Firearm Regulation, Jacob Butler

JCLC Online

States struggle to implement new firearms policies because they are

limited by two major forces: the political feasibility of passing new firearms

legislation and an increasingly broad and individualized Second Amendment

right. Due to this conflict, states continually return to one of few

constitutional yet politically popular methods of gun control: enacting

possession-based firearms laws. These laws are largely ineffective at

reducing gun violence.

In the 2022 Supreme Court decision New York Rifle and Pistol

Association v. Bruen, the Court further expanded the scope of the Second

Amendment to protect the individual’s right to bear arms outside of the …

Environmental Damage Is A War Crime: Analyzing The Legal Implications Of The Russian Armed Invasion's Environmental Impact On Ukraine, Iryna Rekrut

JCLC Online

As a result of the armed invasion of Ukraine by the Russian

military, Ukraine has suffered extreme environmental damage that

affects both its land and its people. This article explores the

intersection of international law and environmental protection in the

context of armed conflicts, with a specific focus on the Russian armed

invasion of Ukraine. After describing the devastation faced by

Ukraine, this article examines existing frameworks in international

law such as the Rome Statute, the Geneva Conventions, customary

international humanitarian law, and domestic law. This overview

highlights guidelines in these frameworks that render environmental

damage during war impermissible. Despite …

The Legality Of Liberation: Exploring The Right To Organized Armed Resistance Against The U.S. State By Afro-Descendants Under International Human Rights Law, Laura Molik

Northwestern Law Journal des Refusés

No abstract provided.

Resurrection, Bassim Al Shaker

Northwestern Law Journal des Refusés

No abstract provided.

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

A Legal Scholarship Jubilee, Brian L. Frye

Northwestern Law Journal des Refusés

No abstract provided.

American Legal Realism Today: An Idiosyncratic Restatement, Mark Tushnet

Northwestern Law Journal des Refusés

No abstract provided.

An Introduction To American Legal Realism, Noah Hornberger

Northwestern Law Journal des Refusés

No abstract provided.

An Old-Fashioned Bluebook Burning, Paul Gowder

Northwestern Law Journal des Refusés

No abstract provided.

Foreword, Caroline Faye Radell, Udhanth Mallasani

Northwestern Law Journal des Refusés

No abstract provided.

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 …

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 …

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 …

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 …

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, …