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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)