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Essay

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Essay

Rethinking Strategy After Dobbs

by  David S. Cohen, Greer Donley & Rachel Rebouché  

Now that the Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, the movement for abortion rights and access finds itself in uncharted territory, and the stakes could not be higher. For abortion rights defenders, this new, post-Roe playing field means adapting their strategy and mindset to confront a new environment without a tether to federal constitutional protection. This Essay, published in the immediate aftermath of Dobbs, offers some initial thoughts about what the changed legal landscape means for abortion rights legal advocacy. It offers several suggestions, all of which require a paradigm shift in movement strategy to one that is in some ways modeled after the now-successful movement to overturn Roe. 

Volume 75 (2022-2023)

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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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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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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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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)

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Essay

The Auteur as Editor

by  Rafi Reznik  

Bluebook Rule 18.6 is wrong because it cites production companies instead of film directors, counter to The Bluebook’s commitment to treating individuals rather than corporations as responsible for their work. Examining the issue through the lenses of Bluebook history, comparative citation guidelines, and film theory, this Essay suggests that film citations should recognize both individual directors and the collaborative character of filmmaking.

Volume 73 (2020-2021)

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Essay

When Public Participation Is Public Theatre

Misuse of Public Comment Opportunities by Anti-Vaccine Activists
by  Dorit Rubinstein Reiss & Barbara S. Romzek  

In recent years, anti-vaccine activists have misused public participation opportunities, especially the oral comment process in front of the Advisory Committee on Immunization Practices at the Centers for Disease Control and Prevention (CDC). These comments do not advance any legitimate interest—they do not improve decision-making, do not increase legitimacy of the policy-making process, and can even make committee members feel threatened. In these circumstances, oral commenting is more harmful than beneficial—and since the CDC has the discretion to limit oral comments, it should.

Volume 73 (2020-2021)

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Essay

What Justice Thomas Gets Right About Batson

by  Thomas Ward Frampton  

In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was “motivated in substantial part by discriminatory intent” when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky. Justice Thomas penned a lengthy dissent that has been met with disdain in the popular press. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront.

Volume 72 (2019-2020)

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Essay

Short-Termism and Antitrust’s Innovation Paradox

by  Joshua P. Zoffer  

Antitrust law has long struggled to account for the role of innovation in economic production. Dynamic factors like capital stock, investment spending, and productivity growth do not lend themselves to neat doctrinal rules or clear regulatory mandates. And the antitrust literature has long treated “innovation” as either the domain of intellectual property law or a black-box variable, rather than the product of specific intracompany organizational and investment decisions.

Volume 71 (2018-2019)

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Essay

Hyperlocal Responses to the SALT Deduction Limitation

by  Manoj Viswanathan  

The Tax Cuts and Jobs Act places a $10,000 limit on the federal deduction for state and local taxes (SALT). Much has been said about state-level responses to this cap, but there has been little analysis of local-level effects or how local governments could similarly respond. This Essay addresses that gap by (1) statistically modeling the number of taxpayers affected by the SALT deduction cap at a ZIP-code level, and (2) proposing locality-based strategies relevant to taxpayers throughout the U.S., not just those living in highly affected states.

Volume 71 (2018-2019)

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Essay

May Chevron Be Waived?

by  James Durling & E. Garrett West  

Suppose that a private party sues an agency, arguing that the agency’s regulation exceeds its statutory authority. Normally, a court would review the party’s challenge under the well-known Chevron doctrine, which directs judges to defer to reasonable agency interpretations of ambiguous statutory texts. But what happens if either the private party or the agency doesn’t make an argument under Chevron? Perhaps the agency doesn’t defend its action by invoking deference, or perhaps the private party doesn’t challenge that Chevron should apply.

Volume 71 (2018-2019)

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Essay

The Last SIFI: The Unwise and Illegal Deregulation of Prudential Financial

by  Jeremy C. Kress*  

On October 16, federal regulators released Prudential Financial from enhanced government oversight. This Essay contends that in removing Prudential’s “systemically important” label, regulators (1) violated their established procedural rules, (2) relied on misleading quantitative analyses, and (3) failed to consider a mandatory statutory factor. This Essay thus urges litigation and Congressional oversight challenging the rescission of Prudential’s “systemically important” status.

Volume 71 (2018-2019)

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Essay

The Labor Economics Case for the Diversity Visa Lottery

by  Patrick Kennedy  

Authors writing in many political publications have spilled ink describing the diplomatic benefits and positive self-selection spurred by immigration programs like the diversity lottery (DV). This essay argues that there is a more fundamental economic case for keeping the DV lottery: Immigrants move to where other immigrants live, so establishing a mechanism to encourage immigration from countries with few immigrants is critical. Without the DV program, America will lose an important advantage in the global war for talent over the long run.

Volume 71 (2018-2019)

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Essay

Deference Conservation—FOIA’s Lessons for a Chevron-less World

by  John C. Brinkerhoff Jr. & Daniel B. Listwa  

Introduction In SAS Institute Inc. v. Iancu, the Supreme Court entered the next chapter in the long-winding debate over Chevron deference, which instructs courts to defer to an agency’s reasonable interpretation of its substantive statutes. Writing for a five-member majority, Justice Gorsuch refused to affirm the doctrine, noting portentously that “whether Chevron should remain is a…

Volume 71 (2018-2019)

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Essay

Postmortem Austerity and Entitlement Reform

by  Reid Kress Weisbord  

Abstract. This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that,…

Volume 71 (2018-2019)

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Essay

The Compromised Right to Education?

by  Joshua E. Weishart  

Introduction Indiana Jones's quest to discover the holy grail in The Last Crusade leads him to a hidden grotto lined with chalices, a Nazi, and a medieval knight. The Nazi sips from an ornate, gold chalice accented with jewels, convinced he has chosen the true grail. He is mistaken and pays for it with his…

Volume 71 (2018-2019)

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Essay

Microsoft Ireland, the CLOUD Act, and International Lawmaking 2.0

by  Jennifer Daskal  

Introduction On March 23, President Trump signed the CLOUD Act, thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the…

Volume 71 (2018-2019)