Law and Politics Commons^™

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 …

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 …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Northwestern University Law Review

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

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, …

Is There A Gender Gap In Campaign Spending Strategies?, Paul S. Herrnson, Charles Hunt, Jaclyn Kettler

ConLawNOW

Women politicians have traditionally faced greater challenges when running for office than their male counterparts. These include less encouragement from political gatekeepers, fundraising obstacles, and voter skepticism about their abilities—particularly among men. Nevertheless, women have made substantial advances in the electoral arena, including increasing their numbers in Congress. Some of these gains can be attributed to changing voter attitudes, the mobilization of female campaign contributors, and recent female politicians learning from the successes of their predecessors. Studies have documented the similarities and differences in how men and women candidates for the U.S. House of Representatives raise money, staff campaign organizations, …

The Relevance Of Catholic Social Thought For Law, Russell Powell

Seattle Journal for Social Justice

No abstract provided.

Who Defines The Refugee?: Analyzing The Limitations And Relevance Of The 1951 Un Convention On Global Refugee Protection, Sarah Locke '25

Honor Scholar Theses

This thesis consists of three chapters and a mini-fourth. In Chapter One, I examine the historical context of the 1951 Convention and its lasting implications. I discuss the early history of the international refugee law regime and the power dynamics that shaped the UN Convention’s drafting. Using a postcolonial lens, I evaluate how the historical context of the Convention continues to perpetuate inequalities and exclusions today, especially through the myth of difference. In Chapter Two, I address the limitations of the 1951 Convention through a comparative analysis with two regional conventions. By analyzing the definition of refugee in each convention, …

Jurgen Habermas's Views On Legal Validity And Discourse Ethics: A Literature Review, Rika Febriani, Supartiningsih Supartiningsih, Sindung Tjahyadi

Jurnal Civics: Media Kajian Kewarganegaraan

In modern states, law is often reduced to merely a tool of power. Many contemporary practices treat law as nothing more than a procedural requirement, disregarding its substantive values and the social conditions of society. This article discusses the validity of law within a political community from Habermas's perspective. According to him, the law must be discursive and stem from rational subjects capable of effective communication. The fundamental questions addressed are: how can law ideally be derived from norms within a political society? And how can law subsequently foster a democratic society? This article employs historical-factual methods, with primary sources …

How We Broke Impeachment And Why We Need To Fix It: Presidential And Cabinet Level Impeachments, 1974–2024, Perry H. Apelbaum

Journal of Legislation

From 1974 to 2024, the House of Representatives initiated a total of 6 presidential and cabinet level impeachments—4 more than were brought in the Nation’s first 185 years. In the aftermath of the “gold standard” set during the Nixon impeachment inquiry, the process has experienced a steady decline in fairness and effectiveness and increase in partisanship, with the result being the weakening of our constitutional system of checks and balances.

During this period, impeachment proceedings have become more frequent and less meaningful, rarely led to disclosures of significant non-public information, and not resulted in conviction by the Senate The procedural …

Law School Hosts State House Reception, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Amendment 7 Ballot Candy And The Single Subject Rule: How The Legislative Supermajority Amended The State Constitution To Limit Voter Choice, Joshua A. Jones

SLU Law Journal Online

During the most recent general election, Missouri voters passed Amendment 7, a legislative ballot measure which erected bulwarks around an election process that limits voter choice. This article will discuss some of Missouri’s constitutional protections against deceptive ballot provision packages, specifically the single subject rule, as well as why they necessarily fall short of total efficacy. It does not argue for a more stringent application of the rules, because doing so would have implications for one of Missourians’ most powerful tools of direct democracy. The paper will examine Amendment 7 for its use of “ballot candy” that legislators successfully dangled …

Five Prairie Reflections On Reviving Rural America, Hannah Haksgaard, Sean Kammer, Travis L. Letellier

West Virginia Law Review

This Essay offers five reflections on Ann E. Eisenberg’s book Reviving Rural America: Toward Policies for Resilience. Each reflection approaches the book from the positionality of writing from rural America, specifically the prairies of South Dakota. Collectively, the reflections cover the politics of voting in a red rural state, policies of local municipal government, the central economic principles in the book, the presence of energy production in rural America, and environmentalism’s relevancy and impact.

The End Of The U.S.-Backed International Order And The Future Of International Law, Monica Hakimi, Jacob Katz Cogan

Faculty Scholarship

The international order that the United States has for decades led and maintained is undergoing dramatic change. In this Essay, we explain that international law during this period was constituted with, and dependent on, U.S. power; that the two became (in odd-couple fashion) entwined together; and that, as the international order changes, the international legal system, its content and its architecture, will also inevitably change.

Democracy, History, And Washington And Lee, Christopher B. Seaman

Washington and Lee Journal of Civil Rights and Social Justice

At Washington and Lee, it is customary for the new holder of an endowed professorship to deliver a public lecture called a chair talk to mark their installation. This is a lightly edited and footnoted version of Professor Seaman's chair talk on October 8, 2024, given as the new Robert E.R. Huntley Professor of Law.

“Freedom Lives Hence, And Banishment Is Here”: The Weaponization Of Immigration Law To Punish Political Dissidents, Ryan Scott

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the long and bipartisan history of the United States government’s weaponization of the immigration system to control, exclude, and expel percieved political enemies. The near-unlimited power that the federal government has acrrued in immigration matters has been used since the Founders’ generation to purge the country of those whose ideas and speech are seen by the powers that be as threatening or subversive. This Note traces the arc of such efforts from the Alien and Sedition Acts of 1798 to the explusion of activists under President Trump. The Note also examines attempts to force the courts to …

Science And Politics In Public Health Regulation, Samuel R. Bagenstos

University of Michigan Journal of Law Reform

Much of American public discourse takes for granted a distinction between science and politics. People describe and understand that distinction in contradictory ways, however. And those contradictions themselves underscore how closely entwined science and politics actually are.

Christopher Tapp, Haley Schoenberger

SACAD: Scholarly Activities

Christopher Tapp was wrongfully convicted for the murder and rape of 18-year-old Angie Dodge and the use of a deadly weapon in Idaho. This took place in 1996. This highlights the damages and dangers of coerced confessions and failures within the criminal justice system. Tapp was convicted even though there was no physical evidence linking him to the crime. He was sentenced to 30 years to life because of a confession extracted by the police’s interrogation and a false witness statement. The DNA at the scene did not match Chris but he was still imprisoned for 20 years. In 2019, …

The Climate Whisperers, Cale Jaffe

Michigan Journal of Environmental & Administrative Law

Environmental groups and their allies have seen two of the bedrock statutes of modern environmental law (the Clean Air Act, Clean Water Act) eroded through recent decisions from the Supreme Court. At the same time, political polarization around climate policy- the gap between Republicans and Democrats on whether worsening global warming merits a response- is wider than it has ever been.

Despite these dispiriting headwinds, there are some encouraging counterpoints of recent climate progress in politically conservative communities. The heart of this essay is simply sharing these stories so we can learn from them. I label the advocates who succeeded …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Independent Justice? U.S. Attorneys As A Case Study Of Political Appointments, Jennifer L. Selin, Lauren Mattioli

University of Michigan Journal of Law Reform

Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years. While most scholarship exploring the potential for political prosecution has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves as U.S. Attorney. This is a consequential oversight, as U.S. Attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.

In this Article, …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

Articles

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Put Me In, Coach: Constitutional Concerns Of Judicial Activism And Legislating From The Bench, Jacob M. Elliott

Senior Honors Theses

Unrestrained judicial activism and legislating from the bench at the Supreme Court level place federalism and freedom in jeopardy. By ignoring crucial doctrines like jurisdiction, deference, and independence, the Supreme Court has demonstrated a tendency toward reinterpreting existing Constitutional precedent as they see fit, basing judgments on extra-legal influences, and supplanting Constitutional principles with their own personal policy preferences.

Numerous cases demonstrate the looming threat of judicial overreach; these cases are often considered some of the most damaging and injurious decisions in the history of the American federal judiciary. One potential solution is to appoint justices who will operate …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Scholarship

The worlds of crypto and bankruptcy have collided. Once-prominent, fast-growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms.

Amid the chill of the crypto winter, bankruptcy has …

U.S. Territories And The Criminal Law Curriculum, Emmanuel H. Arnaud

Articles

No abstract provided.

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

Articles

Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

Faculty Scholarship

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses a third line of arguments—harmonization-based arguments—and identifies select instances …

Guide To Sec And Business Open Source Corporate Intelligence, Lawrence J. Trautman, Brian Elzweig, Neal F. Newman

Faculty Scholarship

An agency of the U.S. intelligence community observes, "The explosion of open source intelligence (OSINT) in recent years has transformed how governments and people around the world consume and process information about society and global issues." It is likely that "We all use open-source and probably don't even realize it, but we also use it for different reasons. You might use open-source information to do a credibility check and to find out more about the person selling you something on Facebook marketplace." Others "may research someone… met on a dating app or before hiring someone for a job." Every use …