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Duke Journal of Constitutional Law & Public Policy
Number of Followers: 10

This is an Open Access Journal

Open Access journal
ISSN (Print) 1937-9439 - ISSN (Online) 1937-9498
Published by Duke University Press

[20 journals]

Moore v. Harper: The Independent State Legislature Theory and the Court at
the Brink
- Authors: Braden Fain
  Abstract: Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. Despite its unseriousness as a legal theory, the Court appears poised to sincerely consider the ISLT as sound doctrine.Although scholars have forcefully refuted ISLT, its logic is enticingly simple, and at first glance the theory might even seem downright plausible. Thus, it is worth taking a deeper dive into the theory and examining the arguments on either side. This Commentary aims to do that. Moore v. Harper and ISLT also present a substantial threat to free and fair elections in the United States. This Commentary will examine the questions the Court is likely to answer and consider the effects its answers will have on American elections and democracy. The Commentary concludes with a simple suggestion the Court is unlikely to adopt.
  PubDate: Tue, 07 Mar 2023 13:24:43 PST
Redlining Reimagined: "Race-Neutral Alternatives" in the Likely
Wake of Affirmative Action
- Authors: Margaret Kruzner
  Abstract: For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North Carolina, Chapel Hill. It alleges that the universities' affirmative action programs are unconstitutional—chiefly, because they are repugnant to the Fourteenth Amendment and Title VI of the Civil Rights Act.SFFA claims to represent rejected applicants from the universities, though the litigation has a peculiar focus on the universities' behavior generally, not their treatment of the aggrieved applicants. This Commentary examines the factual records of both suits, highlighting the key differences between Harvard and the University of North Carolina and the parties' positions in briefing and oral argument.In anticipation of Justice Thomas' overrule of Grutter, this Commentary chiefly explores the consequences of declaring affirmative action unconstitutional by explores topics such as standing, the Court's constitutional role, Grutter's bizarre sunset provision, and the efficacy of race-neutral alternatives as a proxy for attaining racial diversity in the classroom.
  PubDate: Tue, 07 Mar 2023 13:16:09 PST
Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, and the
Effect of Trophic Cascades
- Authors: Nicholas Massey
  Abstract: The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits directly traceable to the reintroduction.For all its ecological importance, the reintroduction of the gray wolf also resonates meaningfully in the legal world. Since the Endangered Species Act was enacted, Gray Wolf populations have oscillated between being federally protected under the Act and being left to the mercy of less-compassionate state management regimes—a problem known as jurisdictional fragmentation.This Note argues that the traditional property law doctrines of public trust and wildlife trust should be read to compel state protection of species that produce positive trophic cascades. These doctrines, read together, would require state governments—as opposed to only federal agencies—to protect certain species of wildlife. Creating an affirmative duty for states to protect certain species would remedy jurisdictional fragmentation and create a more consistent, coherent management regime applicable to certain species and certain populations. This theory would include wolves among the assets a state holds "in trust" for us, the trust beneficiaries. Requiring states to hold certain species as public trust assets would help reconcile divergent federal and state management regimes and help protect other trust assets, such as the land, rivers, and mountains.
  PubDate: Mon, 13 Feb 2023 12:56:58 PST
The Spirit of Gun Laws
- Authors: Noah Levine
  Abstract: The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when citizens feel safe, they can properly exercise their will. But this tranquility doesn't exist naturally. To achieve it, the government must exercise a monopoly of force and ensure that citizens do not fear other citizens. Only then can people act and express themselves without fear of reprisal.Yet when civilians openly wield their guns in public, they impose an arbitrary constraint on others that represses others' ability to exercise their will. Armed goers change the risk calculations for their fellow citizens—often forcing them to avoid areas where guns are present or arm themselves in self-defense. As this Note discusses, each of these options begets a compounding harm to our liberty. And the resulting proliferation of civilian defensive arms in the United States—the modern arms race—does not represent peace, only détente.By this understanding, open carrying itself subverts liberty, and its regulation upholds it. Although an individual's arms may constitute a productive solution to his own fear, the externalities on others are substantial. The state must prevent these costs to the liberty of others by regulating those wielding firearms in public spaces.
  PubDate: Mon, 13 Feb 2023 12:45:18 PST
Merrill v. Milligan: Anticlassification and the Voting Rights Act
- Authors: Graham Stinnett
  Abstract: The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Merrill v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Merrill, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."This Commentary places Merrill within the broader scope of antidiscrimination law, tracing Supreme Court jurisprudence in public accommodations, education, affirmative action, employment law, and voting rights. Across all these areas, the Court has steadily moved away from the race-conscious antisubordination principle, and towards the race-neutral anticlassification principle. This trend has accelerated in recent years, potentially priming the Court to embrace Alabama's race-neutral arguments in Merrill, and fully dismantle the Voting Rights Act.
  PubDate: Mon, 13 Feb 2023 12:31:40 PST
Cannabis Drug Development and the Controlled Substances Act
- Authors: Gabrielle Feliciani
  Abstract: Cannabis is a federally illegal drug in the United States, yet thirty-seven states and four territories have now enacted laws allowing the production, distribution, and consumption of cannabis for medical use. An estimated 5.5 million individuals in medical-use states are qualified to purchase cannabis to treat and mitigate symptoms for conditions ranging from cancer to post-traumatic stress disorder to chronic pain. But, only three cannabis drugs have been approved by the Food and Drug Administration (FDA).The current state of federal illegality creates a problem of supply and demand—consumer demand for cannabis is high, but the number of approved drug products and indications for use remains extremely low. Federal agencies maintain that they support cannabis drug development, but current regulations add hefty requirements to the already complex and costly drug approval process.This Note provides an overview of the current regulatory approval process for cannabis drugs and identifies specific barriers to research and development, specifically restrictions on the supply of cannabis for research and the current demand for cannabis drugs. As the FDA has a responsibility to protect the public health by ensuring drug safety and efficacy, it should prioritize its study of cannabis products, given that the plant and many of its chemical compounds likely have significant therapeutic potential.
  PubDate: Wed, 08 Feb 2023 10:53:17 PST
Match Up: Increasing Disclosure of Facial Recognition Technology with
Criminal Discovery Rules
- Authors: Paget Barranco
  Abstract: Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense counsel's ability to pursue mistaken identity defenses.This Note argues that defendants need a legal mechanism to gain access to information on FRT results and that discovery may be one such mechanism. Although some scholars argue that certain FRT results constitute Brady material, less scholarly attention has been paid to the extent to which different discovery rules could enable defense counsel to access FRT results viewed as part of the investigation.This Note examines the feasibility of obtaining FRT results under Brady, contending that Brady is not the most practicable vehicle for defendants to obtain FRT results. This Note then summarizes and compares discovery rules in five different jurisdictions, arguing that under current discovery regimes, there are likely significant barriers to defendants attempting to discover FRT results except in certain "open file" jurisdictions with broadly tailored rules. This Note concludes by recommending that jurisdictions amend their discovery rules so that content like FRT results is more readily discoverable.
  PubDate: Wed, 08 Feb 2023 10:39:19 PST
Too Much SALT: Rejecting the Pass-Through Entity Tax as a SALT Deduction
Cap Workaround
- Authors: Timothy Gray Ingram
  Abstract: Historically, U.S. taxpayers have been able to deduct their state and local taxes from their federal taxable income. This changed with the passage of the Tax Cuts and Jobs Act of 2017, which introduced a $10,000 cap on the state and local tax (SALT) deduction. States have reacted by turning to various methods to mitigate the negative tax consequences of the cap for their residents, including workarounds that use the charitable contribution deduction or a payroll tax as a means to allow full deductibility of state and local taxes.With the IRS striking down the charitable contribution workaround, and the payroll tax workaround being difficult to implement, the latest development has been a pass-through entity workaround. Generally, the pass-through entity workaround allows pass-through entities to pay their income tax at the entity level. The owners of the entity then report their pro rata share of the entity's income on their individual state tax return. Finally, the state provides each owner with a tax credit equal to that amount of taxes. The tax benefit for the owners is that the tax paid at the entity level is deductible a business expense, meaning it is not subject to the SALT cap. Thus, the owners are able to deduct the full amount of state and local taxes that they pay.The Internal Revenue Service issued Notice 2020-75 on Nov. 9, 2020, which suggested that forthcoming regulations would permit the pass-through entity workaround. But it has now been over two years since this Notice was issued under the Trump administration, and there have been no developments on this front under the Biden administration.This Note argues that the Internal Revenue Service should instead issue regulations denying the validity of state legislation allowing for the pass-through entity workaround. In doing so, this Note examines the legislative history of the SALT deduction, compares the pass-through entity workaround to the charitable contribution and payroll tax workarounds, and analyzes public policy arguments for and against the workaround. Ultimately, it concludes that the workaround raises public policy and substance-over-form concerns and that the Treasury Department and IRS should issue regulations disallowing it.
  PubDate: Wed, 08 Feb 2023 10:07:46 PST
It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use
After Goldsmith
- Authors: Benjamin A. Spencer
  Abstract: The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork's meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use.Under copyright law, creators generally have the right to control and profit from secondary works that derive from their original work. An exception to this is the fair use defense, the four-factor test for which is laid out in 17 U.S.C. § 107. At issue in this case is the first factor—the purpose and character of the use. Central to this factor is the notion of 'transformativeness,' and whether the secondary work possesses a new meaning or message that distinguishes it from the original. This interpretation has been affirmed by the Court multiple times and used effectively for many years.The Second Circuit departed from that precedent, stating that it is impermissible to consider a work's meaning or message when evaluating whether a work is transformative for fair use purposes. This Commentary argues that the Court should reject the new test proffered by the Second Circuit and affirm the value of considering a work's meaning or message in conducting a holistic fair use inquiry. This approach would protect copyright holders, while also encouraging artistic innovation and expression.
  PubDate: Wed, 25 Jan 2023 13:11:15 PST
A Way Forward After Dobbs: Human Rights Advocacy and Self-Managed Abortion
in the United States
- Authors: Kelly Keglovits
  Abstract: Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening the situation. But, a lack of abortion rights was already a lived reality for many before Dobbs. In the wake of Dobbs, advocates must demand more of lawmakers by expanding the rhetoric and law surrounding abortion beyond our Roe-regime understanding. Moving forward, overturning Dobbs and going back to Roe is not good enough. This Note therefore calls attention to the shortcomings of the pre-Dobbs regime, lest they be lost in a sea of calls to "codify Roe." In the meantime, this Note provides a framework for effective human rights advocacy in the abortion context. It also documents the benefits and shortcomings of self-managed abortion care, a practice that will remain relevant in Dobbs' aftermath.Part I of this Note will first examine the evolution of United States case law and policy regarding abortion, noting the previous federal right and Dobbs' elimination of such protections. Part II will explain the flaws of the previous negative rights regime under Roe and Casey that created access gaps, permitted harmful restrictions, and failed to hold states accountable. Part III will compare the United States' pre-Dobbs approach to abortion protections to International Human Rights law and highlight the United States' express failure to ratify international treaties and adopt the positive rights approach to abortion. Highlighting the difference between a "fundamental right" before Dobbs and a "human right" under International Human Rights law, this Part will use this comparison to point out additional flaws and gaps created by the negative rights approach. Finally, Part IV will explain and analyze how self-managed abortion presents a potential solution to the issues posed by federal legal doctrine. This Part will include an examination of various self-managed abortion efforts already underway, in light of human rights advocacy goals, and demonstrate the need for governmental accountability for solutions beyond what self-managed advocacy efforts may be able to achieve.
  PubDate: Thu, 08 Dec 2022 11:03:19 PST
Universalizing Fraud
- Authors: Parmida Enkeshafi
  Abstract: The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland first coined the term in 1939. White-collar crime, which is dominated by fraud, has a significant moral dimension. And beneath fraud's statutory language lies a simple notion of morality: it is wrong to deceive another out of their property. Because of this moral dimension, the adjudication of white-collar crimes would benefit from the application of Immanuel Kant's universalizability principle.The purpose of this Note is to show that the traditional degrees of culpability, either at common law or according to the Model Penal Code, are insufficient and should be supplanted with a standard based on Kant's philosophy. Although the traditional degrees of mental states are adequate for the adjudication of most crimes, the same cannot be said of white-collar crimes. Resolving white-collar cases has proven to be a difficult task. Courts have shifted to using morality to adjudicate white-collar crimes. Mixing of morality and black-letter law has convoluted the adjudication of fraud. Jurors, for instance, are often required to speculate not only about a defendant's mental state in the traditional legal sense but also to only convict if they find the defendant was aware that what she was doing was wrong—a principle called "consciousness of wrongdoing." A simplified solution—one that aligns with the flexibility required of fraud statutes and coheres with the congressional intent behind those statutes—involves universalizing fraud by relying on Kantian principles.Part I surveys two aspects of fraud's legal landscape: the statutory language and courts' interpretations of it, proving that consciousness of wrongdoing as the requisite mens rea is a judicial misstep. Then Part II will explain Kant's philosophy, in particular his discussion of the Categorical Imperative. Part III will apply Kant's philosophy and design a new framework in an attempt to remedy some shortcomings of fraud jurisprudence.
  PubDate: Mon, 23 May 2022 13:47:53 PDT
Done the Time, Still Being Punished for the Crime: The Irrationality of
Collateral Consequences in Occupational Licensing and Fourteenth Amendment
Challenges
- Authors: McCarley Maddock
  Abstract: Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. Around the country, people who have served their prison sentences and repaid their debts to society face "permanent punishments written into law." Unlike fines or prison time, these collateral consequences "tend to last indefinitely, long after an individual is fully rehabilitated." For the more than 600,000 offenders released from state and federal prisons each year, the long-term consequences of their convictions do not disappear, even as the prison gates open.These statutes, often called barrier crime laws or collateral consequence regimes, have remained on the books, in part, because the constituency they affect— those with criminal convictions or arrests— remains politically marginalized. Further, the state laws that limit opportunities for the formerly incarcerated "are notoriously difficult to track down and understand." With a renewed interest in criminal justice reform emerging across the country, collateral consequence regimes have started to receive increased attention. With more than 44,000 different collateral consequence laws in existence, states deny the formerly incarcerated a wide range of civil liberties––barring reentry into the workforce with licensing regimes and withholding the right to vote. In total, these laws create a sweeping deprivation of rights touching the lives of nearly seventy million Americans. Collateral consequence regimes raise serious constitutional questions under the Fourteenth Amendment. Specifically, this Note considers the potentially unconstitutional nature of collateral consequences in occupational licensing under a Fourteenth Amendment analysis. In doing so, this Note will proceed in three parts. Part I outlines the Supreme Court's jurisprudence on the individual's "right to work" and considers the likely standard of review the courts will use to analyze these occupational barrier laws. Thereafter, Part II will examine historical challenges to collateral consequence regimes and will provide examples of current challenges to collateral consequence employment schemes. Part III introduces a workable standard for judicial review of collateral consequences laws, which Part IV advocates implementing.
  PubDate: Mon, 23 May 2022 09:11:58 PDT
Qualified Immunity's 51 Imperfect Solutions
- Authors: Aaron L. Nielsen et al.
  Abstract: Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified immunity's goal, however, should be to produce an outcome that is best for the public overall. Whether qualified immunity strikes the right balance is a topic of intense debate, which intensified following the killing of George Floyd and subsequent public protests in the summer of 2020. Many scholars, judges, and policymakers have since urged a rebalancing. Some even call for qualified immunity to be eliminated altogether. Others counter, however, that reforming qualified immunity will do more harm than good.In our contribution to this symposium on the future of qualified immunity, we offer a partial path forward. Regardless of whether qualified immunity is reformed at the federal level, states have acted and can further act as laboratories of democracy to experiment with different balances. To illustrate the benefits of this approach, we identify reforms to qualified immunity that have been roposed at the federal level to demonstrate how they could be applied at the state level. We also expand the conversation by identifying other potential civil-rights litigation reforms that could be implemented in the states, including changes related to (i) pleading standards; (ii) anti-stagnation rules; and (iii) availability of appellate review. Although state-led reform is not a panacea, 51 imperfect solutions may be better than one imperfect solution.
  PubDate: Fri, 22 Apr 2022 09:01:45 PDT
Journal Staff
- PubDate: Fri, 22 Apr 2022 09:01:45 PDT
Paving the Way for Mindreading: Re-Interpreting "Coercion" in Article 17
of the Third Geneva Convention
- Authors: John Zarrilli
  PubDate: Fri, 22 Apr 2022 09:01:44 PDT
Reading Taylor's Tea Leaves: The Future of Qualified Immunity
- Authors: Jennifer E. Laurin
  Abstract: Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity's protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity's "clearly-established-law" prong in a manner too protective of officials, rather than the opposite. The decision has prompted speculation among commentators as well as lower courts about the degree to and manner in which Taylor represents a shift in qualified immunity doctrine.This Article considers that question, but does so through the lens of not only the Court's qualified immunity jurisprudence, but also the work of lower federal courts before and after Taylor. The Article posits that appreciating the full range of possibilities for qualified immunity's post-Taylor future requires engagement with the non-trivial degree of hybridity among circuits in the stringency of qualified immunity, mediated by not only the variety of approaches to analyzing the substantive merits of qualified immunity claims, but also an array of procedural rules that feature in qualified immunity litigation. Against that backdrop, the Article sketches three plausible futures that might emerge in Taylor's aftermath. In the least earth-shaking scenario, Taylor might be a one-off, an exceptional case that only serves to illustrate the muscularity of qualified immunity. A more far-reaching possibility is that Taylor signals a softening of the Court's clearly-established law test, which could be accomplished through a variety of mechanisms—from adjusting the level of particularity required by the clearly-established-law inquiry, to less obvious means like tinkering with the legal sources eligible to clearly establish the law. Finally, a more far-reaching though less-determinate prediction is that Taylor might prompt greater experimentation with procedural rules—such as restrictions on interlocutory appeals, or limitations on pre-discovery dismissals—that might diminish the qualified immunity's effects on constitutional litigation. To be sure, the Article does not offer odds on the accuracy of any one of those three possible predictions. Rather, the aim is to demonstrate the degree of hybridity that qualified immunity has featured and will continue to feature—perhaps to a greater degree—as the lower federal courts continue to be the primary interpreters and implementors of the doctrine. The analysis thus exposes qualified immunity as an important arena for considering the relationship between the Supreme Court and the lower federal courts, and, more practically, shines light on the array of doctrinal tools (often less visible in analyses that exclusively center the Court's work) that those wishing to reform qualified immunity might add to their toolboxes.
  PubDate: Fri, 22 Apr 2022 09:01:44 PDT
Getting It Right: Whether to Overturn Qualified Immunity
- Authors: David D. Coyle
  Abstract: Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court's current qualified immunity jurisprudence, which deals with whether a right is "clearly established", strays from Congress's intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.Given that the Court's qualified immunity precedents have been routinely followed for decades, should the Court overturn them, even if they are wrong' After all, as Justice Brandeis recognized, "[s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right."1 Moreover, qualified immunity is derived from statutory precedent, and the Court counsels that stare decisis concerns weigh heavily with such judicial doctrines.Assuming the Court erred in its current qualified immunity jurisprudence, this Article considers whether stare decisis concerns should be relaxed to allow qualified immunity to be overturned. This Article first addresses why relaxing stare decisis for statutory precedents is appropriate in the case of qualified immunity. The Article then builds on and applies a stare decisis framework advanced by Professor Randy Kozel2 to the Court's qualified immunity jurisprudence to determine whether stare decisis requires the Court to preserve qualified immunity in its current form. After applying this framework, the Article ultimately concludes that the Court's current "clearly established" law standard should be overturned, but some form of qualified immunity should remain.
  PubDate: Fri, 22 Apr 2022 09:01:44 PDT
Mind the Gap: A Comparative Approach for Fixing Volcker, Learning From
Liikanen, and Using Vickers to Repair the US Banking System
- Authors: Rachel E. Sereix
  PubDate: Fri, 22 Apr 2022 09:01:43 PDT
A Modest Proposal: Leveraging Private Enforcement Mechanisms and the
Bayh-Dole Act to Reduce Drug Prices in the U.S. Healthcare Industry
- Authors: Brittany N. Day
  PubDate: Fri, 22 Apr 2022 09:01:43 PDT
Escape Room: Implicit Takings After Cedar Point Nursery
- Authors: Lee Anne Fennell
  Abstract: In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The Court has effectively constructed an escape room, a gratuitously convoluted analytic environment, that allows it to crack down on disfavored property regulations while giving a free pass to favored ones such as zoning. There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point's bark may prove worse than its bite.Escape Room: a game in which participants confined to a room or other enclosed setting (such as a prison cell) are given a set amount of time to find a way to escape (as by discovering hidden clues and solving a series of riddles or puzzles) – Merriam-Webster Dictionary
  PubDate: Fri, 22 Apr 2022 09:01:42 PDT