SLR Online

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)

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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)

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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)

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Essay

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.

Volume 73 (2020-2021)

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Essay

‘Foreseeable Violence’ & Black Lives Matter

How Mckesson Can Stifle a Movement
by  Tasnim Motala  

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.

Volume 73 (2020-2021)

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Essay

Contracts and COVID-19

by  Andrew A. Schwartz  

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?

Volume 73 (2020-2021)

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Essay

Indian Lives Matter

Pandemics and Inherent Tribal Powers
by  Matthew L.M. Fletcher  

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.

Volume 73 (2020-2021)

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Essay

Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?

by  Thomas Ward Frampton  

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.

Volume 73 (2020-2021)

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Essay

COVID-19 and Formal Wills

by  David Horton & Reid Kress Weisbord  

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.

Volume 73 (2020-2021)