March 12, 2019
Talk of Supreme Court reform is in fashion. With the increased trend toward overt politicization of judicial nominations and the dread of an enduring conservative majority on the Supreme Court, discussion of court packing now knocks at the door of mainstream politics. At least one presidential candidate has proposed how such packing might be accomplished,…
March 13, 2019
Prisoners lose many of their rights when they walk through the jailhouse door, but the free exercise of religion is not one of them. Correctional officers must provide certain accommodations for prisoners’ religious exercise, including offering religious diets. To accommodate such diets, the Indiana Department of Correction (DOC) has some facilities with kosher kitchens, and…
March 18, 2019
Gone are the days of absolute sovereign immunity. The king can now (sometimes) do wrong. Governments today consent to liability and can have their immunity abrogated by superior powers. The Federal Tort Claims Act is an example of the former, while Title VII suits against states illustrate the latter. Because local governments are not sovereign,…
April 3, 2019
Roughly thirty years after the explosion of harsh punitive statutes like “three strikes” laws, legal and political momentum is building toward criminal justice reform. Any discussion of reform is incomplete without a discussion of supervised release and parole, regimes under which roughly 4.5 million Americans live. As more and more incarcerated people are released into…
Can tax benefits “establish” a religion? Perhaps, but as long as they show neutrality, meaning “no preference” for religion, they can pass muster. The Internal Revenue Code establishes numerous income tax exemptions, one genre of which falls under the “convenience-of-the employer” doctrine. This doctrine is primarily codified in 26 U.S.C. §119(a)(2), which exempts employer-provided meals…
The state of Ohio does not want women to have abortions. This much is clear from the state legislature’s recent support for bills that would effectively ban abortion at six weeks. In 2016, arguably as part of the state’s policy disapproving of abortion, Ohio enacted House Bill 294, which prohibits the Ohio Department of Health…
April 11, 2019
“[E]very generation or so a case comes along when this Court needs to say enough is enough,” Chief Justice Roberts wrote in 2012, “if the Equal Protection Clause is to retain any force in this context.” The context he was referring to was the extreme discretion given to state and local governments to vary the…
Civil Rights, Eighth Amendment, Gender Identity
April 12, 2019
Transgender rights are facing a backlash. Scientific knowledge of the impacts of gender dysphoria (GD) has grown immensely, and medical care for transgender people is increasingly accessible. These developments have not been paralleled in the courts. Recently, in Gibson v. Collier, the Fifth Circuit held that a state policy that does not permit gender affirmation…
Criminal Procedure, Cyberlaw / Internet, Fourth Amendment
April 16, 2019
United States v. Wanjiku is one of many recent Fourth Amendment cases that have come before circuit courts regarding border searches of cell phones. This batch of litigation sprung in part from the Supreme Court decision in Riley v. California, which held that officers generally need a warrant to conduct incidental searches of cell phones…
April 18, 2019
A tactic known as “snap removal” has divided federal district courts. Can a defendant remove a suit filed in its home forum (or the home forum of another defendant) after the plaintiff filed the suit but before service of process? At first blush, 28 U.S.C. § 1441(b)(2) –– the forum defendant rule –– would seem…
April 23, 2019
The incident that gave rise to Mitchell v. City of Cedar Rapids, recently decided by the Iowa Supreme Court, should sound familiar by now. In November 2016, a Cedar Rapids white police officer, Lucas Jones, stopped a black motorist, Jerime Mitchell, for a minor traffic violation. When Mitchell attempted to drive away, Jones shot him,…
June 3, 2019
The quintessential public forum, such as a town square, is a place for citizens to gather and discuss issues of the day and ideas related to the polity. Under the public forum doctrine, spaces that the government has opened to the public for expressive activities cannot be subject to content-based or viewpoint-based discrimination. These designated…
October 7, 2019
Probation is often a punishment reserved for those who would otherwise be in jail, such as those who have committed felonies or misdemeanors. In Georgia, drivers who are put on probation can also find themselves in jail when accused of not paying off their speeding tickets. Recently, in Washington v. Rivera, the Eleventh Circuit held…
Constitutional Law, First Amendment
Campus speech wars have been flaring up over the issue of offensive speech and the appropriateness of schools’ responses to it. Recently, the Sixth Circuit weighed in on the First Amendment implications of the matter. The specific battle had already ended by the time the court found itself in the speech wars’ trenches. But the…
October 8, 2019
“Here we are again.” The Third Circuit has had enough in Prometheus Radio Project v. FCC (“Prometheus IV”), the FCC’s fourth loss in a series of cases spanning over fifteen years, as the court vacated a set of FCC policies for analytical shortcomings. In reaching this decision, the court implicitly invoked two central principles: that…
Election and Voting Law, General
October 15, 2019
The role of the judiciary in partisan gerrymandering is a topic du jour. This past summer, in a dispute over North Carolina’s congressional maps, the United States Supreme Court closed the federal courtroom doors to all partisan gerrymandering claims, declaring the issue non-justiciable in Rucho v. Common Cause. But the Court wrote that “[p]rovisions in…
October 18, 2019
Over 90 percent of McDonald’s restaurants in the United States are franchises. Franchising has many benefits for both the franchisor (who saves substantial operating expenses) and the franchisee (who can leverage the franchisor’s brand name and startup resources). But there are serious drawbacks to the franchise model for employees, whose legal recourse against a franchisor…
October 23, 2019
As the 2020 census approaches, various controversies have emphasized the importance of census methodology on political representation. One impactful methodology is referred to as “prison gerrymandering.” The census counts incarcerated individuals as residents of the district in which they are imprisoned, as opposed to the district in which they permanently reside. The vast majority of…
October 24, 2019
Should the internet be regulated? This is a question that has plagued scholars, practitioners, and government officials alike for years. Proponents of regulation have argued that without regulation—such as net neutrality protections—internet service providers (ISP) can discriminate against certain online content creators by charging higher fees or slowing their websites, which in turn stifles competition….
October 29, 2019
What was the Financial Crisis? Was it a mortgage bubble that burst the economy? Or risky decisions by investment bankers? Did it result from funding shortfalls in the shadow banking sector? Or was it the outcome of regulatory oversights? Whatever the answer is to this question – and it may well be all of the…
Civil Procedure, First Amendment
November 2, 2019
“This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards.” So began Judge Walker’s opinion reversing the district court’s dismissal of Sarah Palin’s defamation suit against the New York Times (“the Times”). The Second Circuit’s decision did turn on…
Administrative Law, Civil Rights, Gender Identity, Statutory Interpretation
November 6, 2019
The impact of the Supreme Court’s interpretation of “sex” in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission this Term may not be limited to enforcement of the Civil Rights Act. In fact, many federal statutes, including the 2010 Affordable Care Act (ACA), have adopted identical language. Recently in Franciscan Alliance,…
Administrative Law, Immigration
November 10, 2019
The Trump Administration’s targeting of immigrants is no secret. Earlier this month, the Department of Justice (“DOJ”) “announced that in fiscal year 2019 (FY19), its U.S. Attorneys’ Offices prosecuted the highest number of immigration-related offenses” in the last twenty-five years and its Executive Office for Immigration Review adjudicated 275,000 cases, the second highest number in…
November 11, 2019
What is the difference between a legal opinion and an op-ed column? Judge James Ho of the Fifth Circuit appears to think not much. Recently, in Winzer v. Kaufman County, Judge Ho penned a dissent from an order denying a petition for rehearing en banc that seems better suited for the pages of the Dallas…
Administrative Law, Constitutional Law, General
November 18, 2019
For decades, “conscience clauses” in statutes governing health care have protected the rights of employees from acting against their religious and moral beliefs. Critics of these provisions insist that there is a greater risk of discrimination against patients than discrimination against employees. Recently, in New York v. Department of Human and Health Services, Judge Engelmayer…
For at least the second time this year, the Sixth Circuit has ruled on an Ohio law aimed at restricting access to abortion. In 2017, then-Governor John Kasich signed into law House Bill 214, which made it a felony for a doctor to perform an abortion if she has knowledge that the pregnant person is…
November 20, 2019
Though “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” (Turner v. Safley, 482 U.S. 78, 84, 1987) the rights of people inside prison walls vary dramatically from the rights of those outside of them. People who are incarcerated face abrogated rights: they are limited in if and…
First Amendment, General, Labor Law
November 22, 2019
Labor law holds a precarious place within First Amendment jurisprudence. Since the 1930s, unions have enjoyed both protections and constraints that appear to push the boundaries of constitutionality. Recently, cases like Janus v. AFSCME have threatened labor law’s uneasy equilibrium of worker power and individual rights. With union-protective legislation falling under First Amendment challenge, scholars…
November 24, 2019
One admonishment given to young law students is to treat everyone around you well because the profession is small, and you may never know whom you will encounter again. It is not uncommon for law school classmates to face each other in courtrooms across the country. Rare is it, however, that a judge denies a…
Constitutional Law, Due Process
On October 1, 2017, a man opened fire at the Route 91 Harvest Music Festival in Las Vegas. Fifty-eight people were killed and over 500 injured as Stephen Paddock fired more than a thousand rounds into the crowd. Paddock was able to fire so many rounds because his guns were equipped with “bump stocks,” devices…
Civil Rights, Constitutional Law, Education, General
November 26, 2019
Discriminatory school discipline practices have been the subject of much controversy in recent years. In December 2018, the U.S. Department of Education, led by Secretary Betsy DeVos, rolled back Obama-era guidance aimed at reducing racial disparities in school discipline. The move drew opposition from both state attorneys general and civil rights leaders, who worried about…
Election and Voting Law, General
November 27, 2019
What can states require of candidates for office before they may appear on a state’s ballot? Can they require petitions with thousands of signatures? What about health records? Birth certificates? College transcripts? While some ballot access laws are necessary to ensure organization and efficiency, others have the effect of frustrating democracy. Many times, ballot access…
December 5, 2019
Where do courts draw the line between lobbyists and politically involved individuals in determining the constitutionality of lobbyist registration laws? Recently, the en banc Eight Circuit addressed this question in Calzone v. Summers by holding that Missouri’s lobbyist registration law violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures. As…
December 26, 2019
The Fourth Amendment has long been understood to be an important source of constitutional protection of an individual’s right to privacy. The rise of digital technologies has, however, eroded the clarity of these protections, which turn on physical words such as “persons, houses, papers, and effects.” Legally, a police investigation only implicates the Fourth Amendment…
January 6, 2020
The Supreme Court has repeatedly opposed the establishment of an affirmative right of protection against private violence through the Due Process Clause. Some circuit courts have carved out an exception where state action exacerbates or creates the victim’s danger. Recently, the Fifth Circuit in Cook v. Hopkins upheld circuit precedent in declining to apply this…
Civil Rights, Constitutional Law, Election and Voting Law, General
January 30, 2020
In November 2018, Florida amended its state constitution to restore voting rights to nearly 1.5 million ex-felons “upon completion of all terms of [their] sentence including parole or probation.” The ballot initiative, known as “Amendment 4,” was organized by Floridians for a Fair Democracy and spearheaded by Desmond Meade — an Orlandoan who overcame a…
February 7, 2020
The Au Pair Program is a Department of State exchange visitor program that involves three parties: au pairs who are foreign citizens between the ages of 18 and 26; 15 sponsor organizations, which are private placement agencies that must be officially designated and authorized by the State Department; and host families. Au pairs come to…
February 21, 2020
After Michigan voters used the ballot initiative process to enact several measures to which the state legislature was opposed, legislators enacted a statute in 2018 making it more difficult for their constituents to engage in direct democracy. Recently, in League of Women Voters of Michigan v. Secretary of State, the Michigan Court of Appeals held…
March 2, 2020
In 2018, the Centers for Medicare and Medicaid Services (CMS), a division of the Department of Health and Human Services (HHS), issued new guidance to states announcing the agency’s support for efforts to incorporate work requirements into state Medicaid plans. Kentucky and Arkansas soon took up the agency’s offer and both submitted proposals that included…
In 2018, Florida voters ratified Amendment 4, a state ballot initiative granting the right to vote to most formerly incarcerated people in the state “upon completion of all terms of sentence.” Initially, many thought the amendment would re-enfranchise more citizens than any law passed in at least the last 50 — and possibly the last…
March 25, 2020
Like any workplace, the federal judiciary is vulnerable to instances of sexual harassment and abuse. Clerks, in particular, are vulnerable to such treatment. The relationship between a clerk and a judge is one that requires secrecy and loyalty, and carries with it an immense power imbalance. These factors, coupled with the fact that the judiciary’s…
March 31, 2020
On March 4, 2020, the Supreme Court heard oral argument in June Medical Services, LLC v. Russo, one of the most contentious cases on its current docket. June Medical is an appeal from a Fifth Circuit decision upholding a Louisiana law requiring physicians who perform abortions to have admitting privileges at nearby hospitals. The Fifth…
October 4, 2020
COVID-19 and postal service cuts have presented historic challenges to our electoral systems and sparked widespread fear of voter disenfranchisement. Recently, in Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the November due date for mail-in ballots by three days and approved several changes to electoral processes during the pandemic. Because Pennsylvania is…
October 14, 2020
It is, perhaps, a severe understatement to claim that qualified immunity—the legal doctrine shielding police officers and other government officials from liability for constitutional violations in all but the most egregious cases—is a doctrine in need of reform. A recent Eleventh Circuit ruling in Cantu v. Dothan, however, exemplified how deeply this need for reform…
On August 6, 2020, the Trump Administration issued Executive Order 13943, banning the use of WeChat, a Chinese social media app, in the United States starting on September 20, 2020. Under the order, consumers in the United States will not be able to download or update WeChat, or engage in transactions such as sending or…
November 2, 2020
As the global pandemic rages on, mail-in ballot counts are expected to skyrocket in the general election, which is predicted to have a higher voter turnout rate than any election in the past one hundred years. Yet signature matching threatens to invalidate a record number of mail-in ballots. Recently, in Richardson v. Hughs, a Fifth…
November 11, 2020
Last Term, sixteen Supreme Court cases cited pieces published in the Harvard Law Review. The works cited were published over the course of the Law Review’s 134-year history, touching on a variety of different topics including statutory interpretation, constitutional law, and tort law. Please see a complete list of the Articles the Court cited below….
November 14, 2020
Harris County, Texas—the third most populous county in the United States and home to the city of Houston—had more early voters in the 2020 general election than it had total voters in the 2016 election. The record early voting turnout, in spite of a global pandemic, was due in large part to the efforts of…
November 21, 2020
From the 1860s until the 1970s, the U.S. government operated Indian boarding schools intended to expedite assimilation: the early proponents of this system believed it would “[k]ill the Indian . . . and save the man.” Recently, U.S. Representative Deb Haaland (D-N.M.) and U.S. Senator Elizabeth Warren (D-Mass.) introduced a bill to establish the Truth…
February 14, 2021
At the start of 2021, the COVID-19 vaccine rollout in Houston, Texas was met with such high demand that the City’s vaccination call center phone lines crashed. And by the end of January, vaccine supplies remained so low that the Houston Health Department’s first dose appointments were nearly impossible to obtain. Against this backdrop, in…
March 8, 2021
Not all employment relationships are created equal. Nearly every legal system in the world provides multiple frameworks for individuals and businesses to structure their economic relations, each governed by tailored regulations and safeguards. Different options generally entail different tradeoffs between flexibility and protection. In the United States, for example, individuals working as “employees” benefit from…
March 13, 2021
Editor’s Note: This piece is the first in our new series covering the Supreme Court’s “shadow docket” — emergency orders and summary decisions outside the Court’s main docket of argued cases and decisions. In November, the Supreme Court ruled in favor of the plaintiff in a qualified immunity case in Taylor v. Riojas. Commentators wondered whether Riojas would…
April 9, 2021
In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national…
October 24, 2021
Almost one hundred years after the Federal Arbitration Act (FAA)’s enactment, a long-overlooked limit in its text is attracting the attention of federal judges. The FAA commands courts to enforce arbitration clauses in private contracts and empowers them to do so by staying judicial proceedings and ordering arbitration when a litigant shows that her opponent…
November 6, 2021
The New York Times Magazine’s story “Who is the Bad Art Friend?” sparked a flurry of online debate about friendship, literary ethics, and social media use. Much of the discourse revolved around the personal dispute between the two main characters, Dawn Dorland and Sonya Larson, but copyright law also played a role in the story:…
November 16, 2021
Citing its National Security Law, Israel recently designated six Palestinian civil society organizations as terrorist groups. This designation, based on classified evidence, amounts to an attempt to shut down swaths of civil society without meaningful due process. Around the world, similar national security laws have proliferated, sparking concerns about countries’ potential to misuse such laws…
March 24, 2022
Ignore the medical needs of your children or the government will take them from you. This was the message Texas Governor Greg Abbott sent to families last month when he directed the state to investigate them for child abuse for providing medically necessary care to their transgender children. In wielding the state’s vulnerable youth as…
June 29, 2022
In a “dramatic 11th-hour” move, the European Court of Human Rights (ECHR) granted urgent interim measures on June 14 in K.N. v. United Kingdom, staying the deportation of an Iraqi asylum-seeker. The ECHR declared that K.N. be allowed to remain in the United Kingdom until his legal challenge to the U.K.’s policy of sending asylum-seekers…
Comparative Constitutional Law
November 28, 2022
The “Notwithstanding Clause,” the common name for section 33 of Canada’s Charter of Rights and Freedoms—the country’s constitutional bill of rights—authorizes time-bound legislation that violates the Charter. Recently, in Bill 28, the province of Ontario used the Notwithstanding Clause to override the Charter’s protection of the right to strike. The “draconian” legislation unilaterally imposed a contract on educational workers and…
March 8, 2023
Did tester standing survive the Supreme Court’s curtailment of standing in TransUnion LLC v. Ramirez (2021)? The Fourth Circuit recently held that it did, joining two other appellate courts and worsening an existent circuit split.
March 21, 2023
Supply chains across the United States are imbued with the labor of migrant children. Migrant children produce the food we eat and the clothes we wear, working for household names like Cheerios and J. Crew. They work in extremely hazardous conditions in factories, construction sites, and slaughterhouses. Exhausted from this grueling work, some drop out…
