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Volume 73, Issue 3

Article

The Other American Law

by  Elizabeth A. Reese

American legal scholarship focuses almost exclusively on federal, state, and local law. However, there are 574 federally recognized tribal governments within the United States, whose laws are largely ignored. This Article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as…

Article

An Empirical Assessment of
Pretextual Stops and Racial Profiling

by  Stephen Rushin & Griffin Edwards

This Article empirically illustrates that legal doctrines permitting police officers to engage in pretextual traffic stops may contribute to an increase in racial profiling. In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. As long as police officers identify an objective violation…

Note

Second Amendment Federalism

by  Brian Erickson

In the decade since District of Columbia v. Heller, the paradigm-shifting 2008 Supreme Court case affirming the right of individuals to keep handguns in the home for self-defense, lower courts have struggled to reconcile the case’s broad conception of the Second Amendment with longstanding restrictions on the keeping and bearing of firearms. A burgeoning literature…

Note

Crimes of Omission

State-Action Doctrine and Anti-Lynching
Legislation in the Jim Crow Era
by  Magdalene Zier

After more than a century of failure, Congress now stands closer than ever to making lynching a federal crime. As the pending legislation acknowledges, at least 4,742 people were lynched in the United States between 1882 and 1968, but Congress continually declined to pass any of the nearly 200 bills introduced during those decades. Although…

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Recent Online Essays

Medical Civil Rights as a Site of Activism

A Reply to Critics
by Craig Konnoth

Many continue to diagnose civil rights problems and their solutions using medical frames. Are these policymakers, backed by activists, wrong to do so? The answer, according to legal scholarship that has explicitly considered the question, seems to be yes. While the legal scholarship has emphasized the harms of using medical discourse, it has not explicitly considered its benefits across social movements—and there are several. Rather than suggest that these activists have miscalculated, this Reply seeks to understand why activists and policymakers have deployed medical frames. Further, recognizing that medical discourse and the rights—and burdens—it produces are malleable, this Reply seeks to explore ways in which to further its social justice possibilities.

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Legal Lessons from a Very Fast Problem: COVID-19

by Eric E. Johnson & Theodore C. Bailey

This Essay offers a look back on the initial phase of the COVID-19 catastrophe—a crisis that, at the time of this writing, is still expanding and deepening. We suggest three lessons: First, the free flow of information saves lives, an observation which sounds in constitutional free-speech rights, copyright law, and patent law. Second, politically accountable decision-making in the public health sphere has proven inapt in responding to the pandemic; this observation suggests a more prominent role in public health crises for independent administrative agencies and the judiciary. Third, pre-crisis regulations and rulemaking structures for approvals of medical products, and vaccines in particular, have not proven nimble enough in the face of the pandemic; this suggests an opportunity for congressional action to push agencies to move faster.

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Reweighing Medical Civil Rights

by Rabia Belt & Doron Dorfman

Craig Konnoth’s Article, using “medical civil rights” as an angle onto disability, captures the ostensible benefits of disability legal claiming. We partially agree with him on this, but we also believe that he does not fully account for the weight on the other side of the negative aspects of medical framing. This Response contextualizes the benefits and recognition granted to medicalized individuals by noting the drawbacks to medicalization. We conclude by proposing a new way forward for disability justice. 

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How Medicalization of Civil Rights Could Disappoint

by Allison K. Hoffman

Craig Konnoth’s article, Medicalization and the New Civil Rights, shows how medical framing and evidence of physically identifiable and measurable harms have been providing new pathways to vindicate civil rights harms. Longer-term, however, this Response wonders whether medicalization of civil rights might tell a more ambivalent narrative. First, medicalization could produce a sociological narrowing that could eventually limit how we think about justice. Second, and more speculatively, even the utilitarian benefits that medical framing is now producing might diminish as medicalization becomes a new situs for civil rights contests.

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Damnatio Memoriae and Black Lives Matter

by Alex Zhang

This Essay defends the recent scrutiny of civic symbols, triggered by police brutality and killings, against the Trump Administration’s criticism that it constituted a frivolous exercise in cancel culture. It examines links between recent destruction of monuments and the age-old Roman legal procedure of damnatio memoriae to show that condemnation of memory may serve legitimate purposes, especially in rehabilitating public spaces to express society’s disapproval of past offensive actions.

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