Category: Print Volume 107
Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd
Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law & Margaret S. Williams, Adjunct Faculty, Johns Hopkins University
With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was…
Nov 2022
Remote Work and the Future of Disability Accommodations
Arlene S. Kanter, Laura J. and L. Douglas Meredith Professor of Teaching Excellence (2005–07), Syracuse University; Bond, Schoeneck and King Distinguished Professor of Law (2011–13); Director, Disability Law and Policy Program; Director, International Programs, Syracuse University College of Law
When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. In the past decade, sophisticated computer applications and programs have become commonplace. These advances in technology, have enabled millions of employees to work from home since the onset of…
Nov 2022
Discredited Data
Ngozi Okidegbe, Associate Professor of Law & Assistant Professor of Computing and Data Science, Boston University
Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions because they are…
Nov 2022
Websites, Wellness, and Winn-Dixie: Telehealth Accessibility During COVID-19 and Beyond
Peyton B. Brooks, J.D., Cornell Law School, 2023
During the COVID-19 pandemic, people with disabilities struggled to find proper access to health care. According to a report by the disability services organization Easterseals, approximately forty-six percent of those who had used Easterseals services lost access to health care between the beginning of the public health emergency in March 2020 and April 2021. Furthermore,…
Nov 2022
Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma
Emily N. Harwell, J.D., Cornell Law School, Class of 2022
Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt…
Nov 2022
Has the Alien Tort Statute Made a Difference?: A Historical, Empirical, and Normative Assessment
Christopher Ewell, J.D., Yale Law School (2022); Oona A. Hathaway, Gerard C. and Bernice Latrobe Smith Professor of Law, Yale Law School & Ellen Nohle, J.S.D. Candidate, Yale Law School (2023)
The Alien Tort Statute (ATS), which allows aliens to file civil suit in U.S. courts for violations of the law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however,…
Oct 2022
Antidiscrimination and Tax Exemption
Alex Zhang, Law Clerk, United States Court of Appeals for the Ninth Circuit. J.D., Yale Law School; Ph.D., Yale University
“The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy—including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But…
Oct 2022
A Response-Dependent Perspective on the Theory of Insanity
Bruno Patrick Babij, B.A., Stanford University, 2018; M.Phil., University of Cambridge, 2019;
J.D., Cornell Law School, 2022
“This Note has three parts. The first introduces the idea of response-dependent responsibility in more detail. The second part argues that the traditional tests for insanity assume the view of responsibility the response-dependent account sought to correct and that the failure of these tests to provide satisfactory results follows from that assumption. The third part…
Oct 2022
“F*ck School”? Reconceptualizing Student Speech Rights in the Digital Age
Hannah Middlebrooks, J.D., Cornell Law School, 2022; B.A. in English, French, and Women’s Studies, University of Georgia, 2017
“This Note will examine the impact that the nationwide shift to online distance learning due to the pandemic has had on K12 public school students’ First Amendment speech rights. I will begin with the four foundational Supreme Court cases about on-campus student speech. Next, I will briefly examine the federal circuit split regarding off-campus student…
Oct 2022
Resurrecting Arbitrariness
Kathryn E. Miller, Clinical Assistant Professor of Law, Cardozo Law School. Staff Attorney, Equal Justice Initiative, 2012–2015
What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently…
Sep 2022
Getting to Death: Race and the Paths of Capital Cases After Furman
Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law and Professor of Epidemiology, Columbia University; Garth Davies, Associate Professor of Criminal Justice, Simon Fraser University; and Raymond Paternoster, Professor of Criminology and Criminal Justice, University of Maryland
Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment…
Sep 2022
Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era
John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School and Director of the Cornell Death Penalty Project
The protracted and (somewhat) ongoing debate over whether lethal injection—in some or all of its forms—is cruel and unusual punishment under the Eighth Amendment is the newest variation on the question of whether a particular form of capital punishment is inhumane and cruel. The history of capital punishment in the United States over the last…
Sep 2022
Explaining the Invidious: How Race Influences Capital Punishment in America
Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School
This Article primarily focuses on how racial bias creates nearly ubiquitous racial disparities in the imposition of the death penalty; it does so both to amass further reasons McCleskey was wrongly decided, and to point the way forward. Part I provides the necessary foundation by summarizing the history of race and the death penalty in…
Sep 2022
Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty
Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School & Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law.
In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased…
Sep 2022
The Modern Federal Death Penalty: A Cruel and Unusual Penalty
Hannah Freedman, Staff Attorney and the Director of Juvenile Litigation, Justice 360 and adjunct clinical professor, Cornell Law School
The federal death penalty today would be unrecognizable to the founders, who saw the ultimate penalty as a means of protecting sovereign interests and who therefore carefully guarded the practice at English common law of yielding national interests to local ones. Over the course of time, the geographic distribution and substantive basis for the penalty…
Sep 2022
AEDPA Repeal
Brandon L. Garrett, L. Neil Williams Jr. Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice & Kaitlin Phillips, J.D., 2021, Duke University School of Law
Given how pressing the problem has become, and the real interest in reforms to promote access to justice, this Article takes a different tack than prior habeas reform work: to restore habeas corpus to its pre-AEDPA and pre-Rehnquist court state, in which a federal court can review claims and reach their merits. The approach would…
Sep 2022
Cop Tracing
Jonathan Abel, Associate Professor, University of California, Hastings College of the Law
What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines…
Aug 2022
Voter Data, Democratic Inequality, and the Risk of Political Violence
Bertrall L. Ross II, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia & Douglas M. Spencer, Associate Professor of Law, University of Colorado, Boulder
Campaigns’ increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the…
Aug 2022
Free Exercise Partisanship
Zalman Rothschild, Nonresident fellow at the Stanford Constitutional Law Center; Nonresident fellow at the University of Lucerne; Adjunct Professor of Law at New York University School of Law. J.D., magna cum laude, Harvard Law School; Ph.D., New York University; M.A., Yeshiva University.
This Article presents new data demonstrating that, in contrast to earlier periods, recent judicial decision-making in free exercise cases tracks political affiliation to a significant degree. The trend toward increased free exercise partisanship is starkly manifested by free exercise cases borne out of the COVID-19 pandemic: a survey of federal court decisions pertaining to free…
Aug 2022
Eating High on the Humanely Raised Hog: State Bans on Selling Food Produced Using Cruel Animal Farming Methods Do Not Violate The Dormant Commerce Clause
Emma Horne, Cornell Law School, J.D. 2021.
Most states’ laws minimally protect farmed animal welfare. However, a growing minority of states have enacted food-related sales bans that are designed to improve the lives of farmed animals nationwide. These sales bans are passed by states as a means to eliminate inhumane confinement of farmed animals. For example, California has enacted Proposition 12, which…
Aug 2022
Insanity Step Zero: A Modern Application of M’Naghten’s Question Four Test
Michael G. Mills, J.D., Cornell Law School, 2021; B.A., Siena College, 2018.
Defendants suffering from delusion currently are subject to inequitable treatment in our criminal justice system. They can genuinely believe, due to a delusion, that a person right in front of them has a gun and is about to kill them. Acting in what they believe is self-defense, they can draw a gun and kill their…
Aug 2022
Amazon as a Seller of Marketplace Goods Under Article 2
Tanya J. Monestier, Professor of Law, University at Buffalo School of Law
You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods…
Jun 2022
Medication Abortion Exceptionalism
Greer Donley, Assistant Professor at the University of Pittsburgh Law School
Though state laws dominate the abortion debate, there is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy, known as a Risk Evaluation and Mitigation Strategy (REMS), limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the…
Jun 2022
The Death of Presumptive Unconditional Release: Evaluating the Developing Standards for Early Release in the International Residual Mechanism for Criminal Tribunals
Gabriela Markolovic
Since the birth of international criminal courts and tribunals, persons convicted of international crimes have long enjoyed a presumption of early release after serving two-thirds of their sentence. This presumption, however, is dying: concerns for post-conflict regional stability and evolving notions of rehabilitation in the international context have refashioned the law of early release, resulting…
Jun 2022
Challenging Guilt by Association: Rethinking Youths’ First Amendment Right to Associate and Their Protection from Gang Databases
Victor M. Flores
The purpose of this Note is to help rethink how to better protect minors and emerging adults from the long-standing threat of gang policing and databases. This Note applies the First Amendment right to associate to challenge gang policing in New York as an example of potential challenges to gang policing in other jurisdictions. However,…
Jun 2022
Unequal Investment: A Regulatory Case Study
Emily Winston, Assistant Professor, University of South Carolina School of Law
Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy. Many Americans do not…
Jun 2022
Jurisdictional Elements and the Jury
G. Alexander Nunn, Assistant Professor of Law, University of Arkansas School of Law
Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?…
Apr 2022
Systematically Important Platforms
Caleb N. Griffin, Assistant Professor, University of Arkansas School of Law
Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative…
Apr 2022
Deregulated Redistricting
Travis Crum, Associate Professor of Law, Washington University in St. Louis
From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever greater regulation of the mapmaking process. But in the past decade, the Supreme Court has rewritten the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the pre clearance process that long…
Apr 2022
Policing the Police Under 42 U.S.C. § 1983: Rethinking Monell to Impose Municipal Liability on the Basis of Respondeat Superior
Jordyn Manly, J.D. Candidate, Cornell Law School, 2022
The callous murders of George Floyd and Breonna Taylor at the hands of police in 2020 sparked nationwide protests surrounding racial injustice and ignited calls to “defund thepolice.” But while technological advances have led to a rise in highly publicized instances of such injustices, police brutality and misconduct are not novel concepts. Indeed, police misconduct…
Apr 2022