Courts Commons^™

Generative Suspicion And The Risks Of Ai-Assisted Police Reports, Andrew Guthrie Ferguson

Northwestern University Law Review

Police reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system.

This practice is about to change with the creation of AI-assisted police reports. Today, with the click of a button, large language models (LLMs), a type of generative AI using predictive text capabilities, can …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

Promising The First Amendment: (De)Regulating Speech In Higher Education, Max M. Schanzenbach, Kimberly A. Yuracko

Northwestern University Law Review

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article …

Constitutional Futurisms, Jeremiah Chin

Northwestern University Law Review

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

Toward A Perpetual Practice Of Affirmative Action, Sheldon Bernard Lyke

Northwestern University Law Review

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited …

Infrastructure Equality, Deborah N. Archer, Yuvraj Joshi

Northwestern University Law Review

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should …

Crisis Convergence, Sarah Medina Camiscoli

Northwestern University Law Review

Progressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism …

Existing Together From The Beginning: Freedom To Contract And Black Mutual Aid, Cara Mcclellan

Northwestern University Law Review

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive …

Not Colorblind, Kimberly West-Faulcon

Northwestern University Law Review

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

The Renaissance Of Private Law, Yotam Kaplan, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent …

Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All, Raika Kim

Northwestern University Law Review

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

The Market Value Of Partisan Balance, Brian D. Feinstein, Daniel J. Hemel

Northwestern University Law Review

For the past century, Delaware’s constitution has provided that no more than a bare majority of judges on the state’s courts may hail from the same political party. Some scholars and jurists theorize that Delaware’s commitment to a politically balanced judiciary increases the state’s attractiveness to out-of-state corporations and adds value to Delaware-chartered firms. These claims echo a larger literature in law and the social sciences positing that ideological diversity improves decisional quality. Recently, a series of federal court decisions in the case of Adams v. Carney put these claims to the test. In December 2017, a federal district court …

Statutes And Special Interests, Kirsten Matoy Carlson

Northwestern University Law Review

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th …

Peeping Town: Drone Surveillance And The Exclusionary Rule In Long Lake Township V. Maxon, Stuart Massa

Northwestern University Law Review

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan …

Accommodating Incompetency In Immigration Court, Elizabeth Jordan

Northwestern University Law Review

In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen—where an outcome of deportation often risks life-threatening harm—continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency …

The Sec As An Entrepreneurial Enforcer, James J. Park

Northwestern University Law Review

The truth of disclosures by public companies is policed by both private plaintiffs and the Securities and Exchange Commission (SEC). The courts and many commentators have viewed the SEC as a more responsible enforcer than private litigants. Entrepreneurial enforcers with a profit motive have an incentive to advance questionable legal theories to expand the reach of Rule 10b-5, the primary federal prohibition of securities fraud. In contrast, the conventional view is that a public enforcer will bring straightforward cases against public companies. This Article argues that this perception is dated, and that the SEC has become more entrepreneurial in its …

Criminal Juror Challenges And Csli: A Rule 16 Revision To Maintain Impartial Juries, Ivy Kaplan

Northwestern University Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the State.” Voir dire, the procedure during which the prosecution and the defense may challenge prospective jurors for cause or exercise peremptory challenges, purports to uphold this right. When the prosecution has access to cellular geolocation data on prospective jurors that the defense lacks, however, it may jeopardize the defendant’s Sixth Amendment rights.

This Note proposes a solution to that problem in the form of an addition to Rule 16 of the Federal Rules of Criminal Procedure. …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Cy Pres Silliness: Remedies That Do Not Remediate The Harm, Phil Pillari

Northwestern University Law Review

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

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 …

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 …

Resurrection, Bassim Al Shaker

Northwestern Law Journal des Refusés

No abstract provided.