Public Law and Legal Theory Commons^™

Dream A Little Dream Of Licensing: Jazz And The § 115 Compulsory Music Reproduction License, Jackson S. Roberg

Northwestern University Law Review

The compulsory music reproduction license codified at 17 U.S.C. § 115 allows anyone to obtain the right to record another version of, or “cover,” a previously published musical work. Invoking the compulsory license, however, comes at a dramatic cost. Under § 115(a)(2), the licensee cannot copyright any original musical material they compose for the cover without express permission from the underlying copyright owner, even if that material would otherwise be copyrightable. This limitation gravely harms jazz music, as jazz relies on dynamic recompositions of preexisting music. Jazz musicians depend on compulsory licenses to record the reinterpretative covers essential to the …

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, …

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 …

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 …

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 …

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 …

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 …

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 …

Racial Discrimination In Retailers' Willingness To Accept Returns: A Field Study, Meirav Furth-Matzkin

Northwestern University Law Review

Black Americans have long faced discriminatory treatment while shopping in retail establishments, including, most notably, being subjected to increased surveillance, inconsistent pricing, and inferior customer service. Little attention, however, has been paid to other post-purchase aspects of retail transactions. Specifically, do Black Americans receive the same treatment as white customers when it comes to performing sellers’ formal policies or contracts? While it is understood that salespeople are often given discretion to deviate from standard form contracts, sometimes departing from the literal terms to satisfy consumers, there has been a notable absence of systematic exploration into how salespeople exercise this authority …

Constraining The Executive Branch: Delegation, Agency Independence, And Congressional Design Of Judicial Review, Jennifer L. Selin, Pamela J. Clouser Mccann

Northwestern University Law Review

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can …

The Forgotten Fundamental Right To Free Movement, Noah Smith-Drelich

Northwestern University Law Review

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court.

This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Northwestern University Law Review

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do …

Taxation's Limits, Luís C. Calderón Gómez

Northwestern University Law Review

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

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 …

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 …

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 …

The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy, Meher Babbar

Northwestern University Law Review

Prisoners’ rights to bodily privacy under the Fourth Amendment are limited, allowing detention officials to strip-search them for contraband. The extent to which the Fourth Amendment protects prisoners, however, is uncertain. Questions regarding whether strip searches require reasonable suspicion and the manner in which officials may conduct strip searches have troubled courts for decades. In the absence of clear guidance from the Supreme Court, courts have reached inconsistent conclusions, imperiling the human rights and dignity of prisoners. This Note argues that courts should define and apply prisoners’ rights to bodily privacy with reference to international human-rights law, specifically the United …

Information Fiduciaries And Political Microtargeting: A Legal Framework For Regulating Political Advertising On Digital Platforms, Kimberly Rhum

Northwestern University Law Review

Digital technologies have taken individualized advertising to an unprecedented level. But the convenience and efficiency of such highly tailored content comes at a high price: unbridled access to our personal data. The rise of sophisticated data-driven practices, otherwise known as “Big Data,” enables large datasets to be analyzed in ways that reveal useful patterns about human behavior. Thanks to these novel analytical techniques, businesses can cater to individual consumer needs better than ever before. Yet the opportunities presented by Big Data pose new ethical challenges.

Significant scholarly research has examined algorithmic discrimination and consumer manipulation, as well as the ways …

Is Solitary Confinement A Punishment?, John F. Stinneford

Northwestern University Law Review

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this …

Punishment In Prison: Constituting The "Normal" And The "Atypical" In Solitary And Other Forms Of Confinement, Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola, Meredith Wheeler

Northwestern University Law Review

What aspects of human liberty does incarceration impinge? A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s. Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long- term isolation and to higher security levels.

Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett

Northwestern University Law Review

The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.

This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the …

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Judiciary Rising: Constitutional Change In The United Kingdom, Erin F. Delaney

Northwestern University Law Review

No abstract provided.

Linking Rule 9(B) Pleading And The First-To-File Rule To Advance The Goals Of The False Claims Act, Karin Lee

Northwestern University Law Review

No abstract provided.