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Is Quasi-Judicial Immunity Qualified Immunity?

by  William Baude  

Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. This would be very important if it were true. But it is not.

Volume 74 (2021-2022)

Your Vote Counts

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Election Law in an Age of Distrust

by  Richard H. Pildes  

Election law now operates in a sea of pervasive distrust. This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay identifies seven initial measures that policymakers, election administrators, and even voters can take to help fend off distrust about the election process.

Volume 74 (2021-2022)

Human hand with ballot paper and vote text

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Enforcing the Political Constitution

by  Franita Tolson  

This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.

Volume 74 (2021-2022)

Boeing 787-10 rollout with President Trump

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Ascertaining the President-Elect Under
the Presidential Transition Act

by  Michael T. Morley  

The Presidential Transition Act (PTA) requires the Administrator of the General Services Administration (GSA) to facilitate the transition to an incoming administration following a presidential election. The PTA does not provide any guidance for the GSA Administrator, however, in determining whether a presidential candidate qualifies as a President-elect. This Article provides a framework for Administrators to apply, and Congress to consider codifying, when ascertaining the results of presidential elections under the PTA. It further suggests that Congress should amend the PTA to avoid unnecessarily delays and argues that Congress should reduce the potential perceived significance of the Administrator’s ascertainment decision by changing the term “President-elect” as used in the PTA and related federal statutes to a less politically charged term, such as “federal designee.”

Volume 74 (2021-2022)

i vote

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

The Post-Trump Rightward Lurch in Election Law

by  Michael Kang  

The United States Supreme Court’s decisions last Term, Brnovich v. Democratic National Committee and Americans for Prosperity v. Bonta, mark only the beginning of a conservative transformation of election law under the Court’s post-Trump personnel. This Essay argues that although neither decision itself is immediately transformative, both decisions boldly discard ideological compromises not long ago held as obviously sensible by the right and instead point toward a conservative deregulation of minority voting rights and campaign finance disclosure in the near future.

Volume 74 (2021-2022)

Election Day

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

The Right to Vote

Baselines and Defaults
by  Yasmin Dawood  

An election undoubtedly requires some rules to ensure that it is ‘free and fair,’ but at what point do these rules diminish the equal opportunity of minority voters to cast a ballot? This Essay addresses these questions by examining the baselines that undergird the right to vote. The author identifies three kinds of baselines—legal, contextual, and normative—and explores the implications of each for voting rights protection.

Volume 74 (2021-2022)

Voting

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Weaponizing the Electoral System

by  Samuel Issacharoff  

This Essay will examine the fragility of election structures that depend on bipartisan agreement to certain ground rules. I argue that democracies depend on two critical features: (1) a commitment to repeat play; and (2) institutional guardrails such that the majority (or even plurality) will win according to preset rules, but not win too much. The populist fervor of the times threatens both. This Essay explores how close to the abyss the election system came in 2020, and how delicate the balance remains going forward.

Volume 74 (2021-2022)

Deborah Rhode

Deborah Rhode Memorial

Managing Sudden Death, Grief, and Loss in Close Community

Not Your Usual Law Review Essay
by  Swethaa S. Ballakrishnen  

Deborah Rhode’s intellectual largesse has been central to chronicles of her legacy for good reason. For the innumerable who have encountered her illustrious writing and expansive career, her passing has meant the loss of a visionary thinker and leader: the end of an era, the loss of a giant who, across fields, did not shy from hard questions or difficult analysis when considering ethical ends and law’s true purpose. To junior colleagues, mentees, and students over decades and sites, it has meant the loss of a true champion and path-maker, someone whose favorite use of her letterhead was in service of others. To her collaborators, it has meant the loss of a generous colleague, someone who did not take shortcuts and whose commitments to causes bigger than her were always evident as a reflective and inspiring example.

Volume 74 (2021-2022)

Deborah L. Rhode

Deborah Rhode Memorial

Hard Questions About ‘Soft Skills’

A Celebration of Deborah Rhode’s Scholarship
by  Irene Oritseweyinmi Joe  

This Essay celebrates the life and scholarship of Professor Deborah Rhode by centering her pivotal contributions on character and leadership in the legal profession to the national conversation about criminal justice reform. Deborah unmasked the systemic deficiencies in identifying and informing the character and leadership necessary for the institutional actors of the criminal process. Her contribution to the national discourse requires reformers to ask hard questions about the essential soft skills of those individuals tasked with providing legal representation to the most marginalized among us. As scholarship by transformational scholars and mentors like Deborah Rhode often does, her work inspires conversations about what it means to be an institutional actor in the criminal process. It also leaves a roadmap for those fortunate enough to have worked and learned from her to pursue answers to these questions. Her legacy speaks to both those who seek to advance justice through their practice of law and those who advance our understanding of law by researching the institutions tasked with ensuring systemic integrity in a criminal process that is increasingly coming under criticism.

Volume 74 (2021-2022)

Deborah Rhode

Deborah Rhode Memorial

She Stood Up

The Life and Legacy of Deborah L. Rhode
by  Nora Freeman Engstrom  

If you look closely, you will see an anomaly. There are twenty-seven men and five women pictured. Of the latter, four are in dresses and sitting. One, however, is in pants. And she is standing up. That woman is Deborah L. Rhode. She’s standing because, when she was instructed to sit, she politely but firmly refused. And that, my friends, is the point.

Volume 74 (2021-2022)

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2021 Student Essay Competition Winner

The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone

by  Trillium Chang  

The Chinese Exclusion Cases created a world in which an entire class of noncitizens could be deported or excluded from the United States. Today, the ghost of the Chinese Exclusion Cases is still alive and well, interwoven into the lives of many citizens and noncitizens in the United States. Because of the Plenary Power Doctrine sanctioned by the Chinese Exclusion Cases, two-thirds of the U.S. population live in a Fourth Amendment–free zone where border officials can conduct warrantless searches with impunity. Minority populations, in particular, are subject to constant policing and suspicion: an experience that would not have been foreign to Mr. Chae Chan Ping and Mr. Fong Yue Ting.

Volume 73 (2020-2021)

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2021 Student Essay Competition Winner

Priam’s Folly

United States v. Alvarez and the Fake News Trojan Horse
by  Michael P. Goodyear  

In legal scholarship over the past few years, fake news has been criticized and pondered repeatedly. In many ways, 2020 was a year of reckoning which brought to the fore the myriad problems posed by fake news. This Essay uses the context of 2020 to critique the Supreme Court decision in United States v. Alvarez, the latest Supreme Court ruling on the issue of whether fake news is protected by the First Amendment. Alvarez was decided in 2012, before the true dangers of fake news during the Internet Age were made fully apparent to the public. While Alvarez upheld the noble idea of truth ultimately triumphing in the marketplace of ideas, in reality, Alvarez opened the gates to the pernicious dangers posed by fake news.

Volume 73 (2020-2021)

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Symposium - 2021 - Policing, Race, and Power

Race, School Policing, and Public Health

by  Thalia González  

The central claim of this Essay is that school policing is an obvious public health issue. It sits at the nexus of two critical social determinants of health—education and racism—and requires targeted attention as such. Understanding school policing as a public health issue has significant potential benefits and practical implications, especially for the antiracist health-equity movement.

Volume 73 (2020-2021)

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Symposium - 2021 - Policing, Race, and Power

The Mark of Policing

Race and Criminal Records
by  Eisha Jain  

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.

Volume 73 (2020-2021)

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Symposium - 2021 - Policing, Race, and Power

Law and Order as the Foundational
Paradox of the Trump Presidency

by  Trevor George Gardner  

This Essay scrutinizes the feuding between the Trump White House and various federal law enforcement agencies, concurrent with criminal lawbreaking in the Trump Administration, in an effort to extend scholarly understanding of the relationship between law-and-order politics and popular regard for rule-of-law principles.

Volume 73 (2020-2021)

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Symposium - 2021 - Policing, Race, and Power

To ‘Defund’ the Police

by  Jessica M. Eaglin  

Much public debate circles around grassroots activists’ demand to “defund the police,” raised in public consciousness in the summer of 2020. Yet confusion about the demand is pervasive. This Essay adopts a literal interpretation of “defund” to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black people enforced through criminal law.

Volume 73 (2020-2021)

Medical stethoscope on a modern laptop

Reply

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.

Volume 73 (2020-2021)

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Essay

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.

Volume 73 (2020-2021)

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Response

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. 

Volume 72 (2019-2020)

CCU Room

Response

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.

Volume 72 (2019-2020)