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Volume 72, Issue 6


‘Racial and Religious Democracy’

Identity and Equality in Midcentury Courts
by  Elizabeth D. Katz

In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of…


Disaggregating Ineffective Assistance of Counsel Doctrine

Four Forms of Constitutional Ineffectiveness
by  Eve Brensike Primus

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a…


Is Death Different to Federal Judges?

An Empirical Comparison of Capital and Noncapital Guilt-Phase Determinations on Federal Habeas Review
by  Brett Parker

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals. However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review…


Opening the Door

Expanding Civil Redress for Sexual Assault Through Fraternity Insurance
by  Alexandra Willingham

Campus sexual assault prevention efforts have traditionally focused on criminal prosecution and Title IX adjudication as avenues of deterrence and redress. This focus has largely ignored civil litigation, which could be a route for survivors to obtain critically helpful economic damages. While civil lawsuits often do not go forward because the tortfeasor is judgment-proof, for the…

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Recent Online Essays

“Forseeable Violence” & Black Lives Matter

How Mckesson Can Stifle a Movement

This Essay draws from recent events to show how the Fifth Circuit’s “foreseeable violence” standard uniquely harms Black and racial justice protesters.  By contextualizing the Fifth Circuit’s opinion in Mckesson as part of a wider project spanning state and local legislatures aimed at stifling Black protest, the Author explains how even tort liability standards for protest can be, and will be, weaponized against those whose First Amendment rights are the most vulnerable.

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Contracts and COVID-19

The COVID-19 pandemic of 2020—as well as government orders to contain it—has prevented countless people, babysitters to basketball players, from fulfilling their contracts. Are all of these parties legally liable for breaching their contracts? Or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled, or a dorm room leased at a college that is now closed?

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Indian Lives Matter

Pandemics and Inherent Tribal Powers

American Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. This short Essay argues for tribal regulatory powers over nonmembers in Indian country during a pandemic. This should be an easy argument, but federal Indian law makes it more complicated than it should be.

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Why Do Rule 48(a) Dismissals Require “Leave of Court”?

On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump's former National Security Advisor, Michael T. Flynn. The Government has urged that Judge Sullivan grant the motion based on an argument that judicial meddling is improper where Rule 48(a) dismissal accrues to the benefit of the defendant. This Essay argues that the Government's position—and the Supreme Court language upon which it is based—is simply wrong in light of Rule 48(a)’s forgotten history. Rather, Rule 48(a) was drafted precisely to empower a district judge to halt a dismissal where the court suspects some impropriety has motivated the dismissal.

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COVID-19 and Formal Wills

This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it renders will-making inaccessible. As a result, the Essay urges lawmakers in states that cling to the statute to liberalize the requirements for creating a will.

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